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Law and the Community:

Can lawyers afford morals?

Salient: You said in your article in Salient that the law profession tends to serve the affluent and the powerful in the community. Can you be more specific?

Grbich: Specifically, a lawyer's training, two thirds or more of it, seems to deal with subjects which basically serve rich people—trust, contract, taxation—and most of the work of lawyers, and their income, comes from serving that particular group of the population. Lawyers tend to reflect the values of the group which feeds them. More specifically they're not getting into the area such as poverty law, social security law, landlord and tenant, and giving legal help where it's needed for people who aren't affluent enough to afford their services.

What do you mean by poverty law?

Poverty doesn't only mean a lack of money. Poverty is a true sub-culture which tends to perpetuate itself, its ideas, perspectives and attitudes. It diverts interests away from other broad structural and distributional issues in a modern industrial society. The 'Great American Dream' has permeated our society. Poverty is more than an unfortunate mishap, it serves a purpose in that it is the rubbish heap of the mistakes we make in our society. The problem is one of social engineering and lawyers have a role to play here but they show little concern. Let me digress for a, moment and give you some interesting figures. A couple of months ago the Henderson Poverty Commission in Australia published a report which showed that 10.2% of the population is below the poverty line. They defined that line for example, for a husband and wife with two children as being $62 per week income

Another thing, in Australia, and no doubt this applies to New Zealand too, it is the poor that pay the most tax, not the rich. This comes about because the poorer a person is the greater the proportion of income spent on staple goods. And built into the cost structure of those goods is an amount for taxes—indirect taxes which companies just pass on to the consumer. A recent study in Australia suggests that if you are earning under $2000 per year you have a real likelihood of paying up to half of it in taxes to the government. That's how fair the tax system is.

Wealth distribution can supply some startling facts also. In the USA the top 20% of the population owns 76% of the wealth and 96% of the company stock. The top 5% own 50% of the wealth and 83% of the company stock. And that top 20% earn more than the bottom 60% of the population.

An equal redistribution of wealth in the UK would raise the average pay-packet by nine pounds more for the poor, and this would be very significant to them.

So you can see that there is much here for the lawyer to be involved in. But some will say that this is politics and outside the realm of the profession as such. Lawyers are already involved in their work in politics. When you are involved in tax avoidance you are involved in a politically-charged game.

Why aren't lawyers getting into the areas that you suggest? Is the money the reason?

Well it's circular, it's not the sole reason. The point is because money is being paid, lawyers are supplying a service and because they supply that service the law schools are teaching it and therefore it becomes a structural matter. My argument is that at the law schools you have to break the commitment to an increasingly obsolete and biased system. You have to examine what the law schools should be doing. That of course is not the sole means of breaking this vicious circle, you can do it of course by putting pressure on the government to increase money and resources for legal aid centres, you can bring about reform, you can do it the way that Nader has of course.

The law schools as I see it reflect the needs of the affluent and powerful in society but I don't see how starting legal aid centres, which we have got to some extent, can affect any radical changes in society.

Basically, legal aid centres can't solve these structural problems in society, they can merely deal with the worst manifestations of the system and give the people some aid—at least give them representation to even out the structure, which is weighted against them, by giving them proper advice. It can't solve the problem. A lot of Marxists would of course argue that if you do deal with the manifestations of the problems instead of dealing with the structure of the problem yourselves, you're acting in a counter-productive way, that you ought to be looking at the structure itself. This is a matter of personal judgement about whether it's better to have a more just society and one that continues or whether you want to take some other course. In that respect I'm basically a conservative.

You describe yourself as a conservative and you use the phrase 'a just society'. What actually is your view of a just society?

I don't know that I am trying to create a just society. What I am trying to do at the moment is create a less unjust society. I think at the present time there should be more equality in the distribution of wealth, that we should have human values at a high priority when it comes to the crunch. The obvious issues within society are whether we spend our money on motorways, on schools, on social security, on defence. We want bigger cars and more housing. On all of these issues I take a classic university academic liberal stance. In that respect, depending from where you are looking, I'm probably a conservative. Where I do differ from the middle-of-the-road university academic is that I can see universities taking a more active role in exposing the injustices of our society; that I see knowledge, in large part, as power, and the ability to tell people exactly what's happening as a critical part of the university's function.

You have been very critical of certain practices within the profession, for example the way conveyancing is carried out. Would you say that lawyers are perpetrating some sort of trickery? How can these practices be attacked?

In the case you mention of conveyancing, I don't think its a trick other than that in a sense they're carrying out work which can be done much more cheaply. How can it be reformed? Well, I see the first requisite for reform as recognition of the problem. 80% of conveyancing requires no legal skills; it could be done in the same way as all processing of goods is done at present, can be computerised, can be done much more cheaply without skilled help. So in order to bring about change, first you have to recognise the problem and secondly you apply the normal democratic pressures.

In England, for example, after a degree of democratic pressure which started largely with academic criticism, the government set up a committee to examine the legal profession's charges in conveyancing and the government committee recommended that they ought to be cut down.

Publicise the problem, put pressure on the government and if necessary put public pressure on the profession to put its house in order.

Why have reforms within the profession been so slow? Is it because of the way young lawyers are taken under the wing' or apprenticed by the established profession?

Yes, that's one reason. Obviously there has to be some requirement of practical training before a new lawyer goes out on his or her own. The danger is that this training is page 13 in such a way as to effectively stifle ideas a young lawyer might have. The [unclear: ent] system could be replaced by a [unclear: ical] training scheme added to the end [unclear: e] degree.