Rule of lucre

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The affidavits were rather awkward for me. In the middle of a messy, multiparty case we suddenly had to give the Court an idea of how much was being spent on costs. Each party set out what its lawyers were billing on a daily basis, and as it happened it was rather a lot. Four of us — two businesses, a sports body and a government agency — together racking up something close to a hundred thousand dollars a day.

Lady Justice peaking behind her blindfold to see a barrister surrounded by money and other people crowded together on the other side. Illustration Chris Johnston

In the moment it was slightly embarrassing to see how much less than the others my barristers were getting. Two to four thousand a day felt like a lot to me when I approved the bills, but there was no hiding from the fact that, as sworn up in those evidentiary documents, their opponents at the bar table were pulling in the better part of ten grand every time the clock ticked past lunchtime. In one case it took no less than twelve thousand dollars to compensate a senior silk for turning up to a day’s work.

I tell this story to lawyers and non-lawyers and reactions are very different. Most lawyers are exceedingly polite about ‘the money’; it’s not the ‘done thing’ to make comparisons between the half million going into the pockets of a still-junior tax minimisation specialist and the fact that some child protection barristers can’t pay the rent. Many are deeply institutionalised and inured to various matters taken as given, such as law being a free market or large, indulgent commercial disputes requiring vastly more resources than mundane cases about whether people go to gaol or lose their children. Non-lawyers, lacking the wisdom and knowledge imparted by a law degree, resort to simplistic remedies like maths. A hundred thousand a day can sound like a lot when your local school can’t get hold of eighty a year to pay a teacher’s salary. 

Not all lawyers, of course. Many find the gauche excesses troubling. It’s easy to wonder how much good even a fraction of that money would do for a community legal centre, or in services to keep people out of the criminal justice system. Yet it’s difficult to hear those voices in a profession whose very institutional structure requires deference to the assumption that — the odd glitch aside — it is structurally sound. 

Recently we heard that to investigate the holder of one of the nation’s highest and most trusted offices, without first obtaining a conviction for a serious offence, would imperil the ‘rule of law’. This startling suggestion kicked off a small debate, but it was generally accepted that the rule of law is a given, we have it fully formed all around us courtesy of our legal institutions, and it is a sacred, secure thing that should not be imperilled. It is invoked at the most fundamental level like democracy. Tear a hole in it and we sink. It protects all of us just as it protects the most powerful, because it guarantees that the law applies the same way to everyone and we are all equal before it.

Sure it does.

 

'My interest is in the legal system itself, who it serves, who it doesn’t, and how its claims are invoked, or ignored, to support the powerful.'

 

One of several problems with this claim is the fact that money still buys a better service from the legal system, and to claim otherwise is to throw out the most basic principles of an economy. After all, if there were no benefit to be gained from backing up a truck full of money and tipping 30 or 40 grand a day into a team of silks, junior barristers and top tier solicitors, why would those with the means do it? To argue the contrary beggars belief. And if the observation is accepted, what does that tell us about the rule of law?

Is a single parent navigating a complex pathway of social security appeals without a lawyer truly experiencing the law’s protections to the same degree as a magnate defending their vast interests with a phalanx of solicitors and silks? If a litigant is outgunned five to one, does this really offer no benefit whatsoever to the party — inevitably the wealthier one — who has brought (bought) the heavy weaponry? While the wealthy call on advice for the most inane matters — not wanting to pay tax, or sending shirty letters to their neighbours — much of the population has no real way of invoking the law’s so-called protection. The miniscule funding of legal aid and community law centres ensures they can only do so much, while the costs of litigation, from filing and lawyers’ fees to the losers paying the winners’ costs, make it an unrealistic and highly risky option for most people and even small businesses. 

Not for the first time in Australia’s tractor-speed version of #MeToo, the big game quickly moved from various claims concerning the safety of women in Parliament to the vindication of the reputations of powerful men. Despite the elements of defamation law being relatively simple (if grossly distorted in favour of plaintiffs), we learned that a treasure trove of high profile lawyers were being drawn in including big swinging silks who allegedly bill fifteen thousand or more a day.

Joey Bloggs, queuing for a ten minute slot with a harried volunteer at the local community law centre, must see that and think, ‘Lucky we’re all equal before the law.’

I am not setting out to attack the lawyers themselves. Most are ethical, at least in terms of their professional obligations, many do great pro bono work and our judges are among the least corrupt in the world. My interest is in the legal system itself, who it serves, who it doesn’t, and how its claims are invoked, or ignored, to support the powerful. How you don’t have to reject the value of a notion like rule of law to look closely at how far we are away from seeing its fruition in ‘substance’. Or as Dr Cristy Clark put it in her Eureka Street article ‘Whose rule of law?’:

‘I want to dig a little further and consider the quality of this rule of law that we are all so keen to protect.’

Dr Clark focused on the still-terrible outcomes experienced by the vulnerable. I am lingering on the more mundane, yet crucial and justice-shaping matter of the money that lubricates the system and opens its doors, not in illicit brown paper bags, but simply though the accepted functioning of the legal market and its corollary, the scant resources trickling down to the cases and causes that matter.

Is the answer simply for lawyers to do more work pro bono? I don’t think so. Most lawyers work very hard and still find time to support a strong culture of volunteering, perhaps more so than in most professions. In any event pro bono, as a response to deep systemic problems, is a bit like philanthropy. The individual generosity only serves to emphasise the system’s failure to provide essential services. It is rarely enough to ‘even out’ the resources in a case, and the amount of advice delivered by well-meaning volunteers is miniscule compared to the gargantuan machine servicing the big end of town. And like philanthropy it can also be a marketing tool, a justicewash distracting the eye from the mainstay work of firms whose raison d'être is the endless buttressing of privilege and power.

Perfection may never be achievable, but surely we can try to work to reduce the gaps between the ideals and the outcome, which — measured in the market, as we are told to measure all value — is plainly severely distended. To accept that it is wrong, that cold lucre thwarts the true application of the rule of law, is at least to open a conversation about how to make it better. It is not unreasonable to question the argument that a well-fed minority have the ‘right’ to a richly-funded level of justice, when most of the population can hardly access it at all.

 

'Ultimately, real reform could not ignore the underlying nature of our legal system itself.'

 

There are many things to do to improve this, from capping costs orders (where the winner gets a large portion of their legal fees paid for by the loser) and tax deductions for eye-watering legal spends, to substantially increasing support for legal aid and community law services. More active regulation could also support members of the public who can’t afford to litigate — that is, most of them — to be able to experience the law’s protections.

Ultimately, real reform could not ignore the underlying nature of our legal system itself. Adversarial courts put the lawyers, not the judges, in the driving seat, and the result can be that by employing more lawyers a party can drown the other side in procedural argument, while picking over and amplifying the most inane arguments to absurd degrees. My favourite lawyer joke precisely nails the problem:

Q: How many lawyers does it take to change a lightbulb?

A: How many can you afford?

There is plenty of room to empower judges to say ‘enough’ when one side is misusing its power to distort proceedings, and to draw on the good parts of other systems, from European inquisitorial courts to Australia’s civil and administrative tribunals, to ensure the case isn’t driven by lawyers while preserving the protection people get from an independent advocate.

Such changes require more money. Perhaps we could let the most able litigants tip a little more into the jar, and meet them at the other end via taxes, and not be dissuaded by those who would spend a million on a court case without blinking yet claim a modest contribution to the public purse threatens their viability.

Change also requires imagination. Most Australians look at the US medical system with disbelief. How is something so fundamental left swinging in the capricious breeze of the market? Why are so many Americans attached to their system, unable to picture something better funded and more equitable? We can ask the same of ourselves: why do we accept a justice system that, for its many qualities, is still so clearly shaped by money and wealth?

If these ideas sound like undergraduate wishful thinking then consistency suggests you take a similar view of other crucial services like health and education. Let the market do its thing, you might say. Look on wealth as a reward for virtue, admitting no difference between healthy reward and stupendous riches. Let those who accrue it spend it however they want, including in the halls of justice and power.

We are all equal before the law, you might say. What of it that some are more equal than others?    

  

 

 

Martin PikeMartin Pike is a lawyer and writer who lives in Melbourne

Main image: Illustration Chris Johnston

Topic tags: Martin Pike, law, rule of law

 

 

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Existing comments

Thank you, Martin, for raising these important questions. As someone who has a little experience of both the threadbare end (legal aid refugee and criminal law) and the loaded end (banking and finance), I can only echo the need to ask them.


Justin Glyn SJ | 01 June 2021  

Maybe the author might want to read ANGELA SHANahan'S article in the WEEKEND AUSTRLIAN. Or maybe he could let people know about VCAT and AAT for when adverse decisions are made by governments against people. Hiding the facts.


PHIL ROWAN | 01 June 2021  

Excellent article Martin - thank you.


Anne | 01 June 2021  

Well said I just wonder how many can go all the way to the High Court And it seems hard to gbinformatiom about the cost of Cardinal George Pell‘s defence and then appeal to the High Court Has anyone information about these costs or where such costs can be found Another Lewis and matriculation Cbc St Kilda 1951 used to Taylors justice is open to all just like the hotel Waldorf Waldorf Msp


Michael parer | 01 June 2021  

Thanks for a wonderfully argued case, Martin. So simple; just follow the money. And those who benefit will maintain the system. Cleres indeed. One of the ways the system protects itself, apart from its wealthy club members, clients and suppliers, is by legal jokes. It is a bit like the gays in the Vatican Curia protecting themselves by putting out homophobic anti gay edicts as camouflage. The examples and arguments you present show how any chance of reform can be argued out of court by the best casuistic of stakeholders. They have the numbers to bully, as you suggest. And if that is not bad enough it looks as if the law can't touch senior politicians who are friendly with chiefs of police who cannot carry out inquiries 'because of covid'. And cannot go further because of lack of evidence. I collected a traffic $430 fine on a recent visit to Melbourne. I pled my case in writing. That was rejected, but I was offered the opportunity to go to court in Melbourne. Even apart from the 50/50 judgment possibilities the cost of going to Melbourne and accommodation etc far outweighs the chance to get out of it by just paying up. Equality has a geographical ingredient too. Thanks anyway.


Michael D. Breen | 01 June 2021  

...nicely written; I take exception to the inference that "most are ethical" didn't have an asterisk leading to something in 8 point grey font "*51% of those asked while in college". Ethics aside, a good lawyer knows the law; a great lawyer knows the judge... it's costly to buy into that circle of fiends and perhaps unfair that someone silly enough to self-represent or reject counsel on a cost basis should at least be cautioned that they may lose the right to appeal if their presentation is inadequate. Reform is necessary to keep the Law accessible to all; a good start would be to reset the framework around "no win, no fee" ambulance chasers such that the fee cannot exceed say 30% of the "win" dividend (ever) and slogans like "we fight for fare" (sic) should not appear on tv to garner unwary plaintiffs; we fight for fairly anything might be more to the point. Point of trial/hearing advance deposit sum agreements should be unlawful or held in third party society trust; I wonder how many litigation cases are encouraged by lawyers only to be dumped by the firm "unwinable" after the deposit is paid? But who'd take them on?


ray | 02 June 2021  

I agree with you Martin. Given the obvious imbalance within the system, however, I'm not sure that I would call the legal system a "justice system" - to whom does it give justice? As you say, definitely not those without the wealth to support their position. Major changes are most definitely needed, including putting a cap on the obvious fee greed, but why would the wealthy, aka the politicians and their buddies, do anything about a situation where they will always be the winners? Not going to happen, as far as I can see!


Richard | 02 June 2021  

P.S. Calling a government department 'The Department of Justice" is, to me, an absurdity which mocks the poor who cannot find justice simply because they afford to defend themselves in a court of law.


Richard | 02 June 2021  

Thank you for writing a very important article about the costs of legal services in our system of law. We are told that we are all equal before the law and that we all have an equal say in our democratic processes. However, we know that if we want the best legal services and if we want our voices to be heard in our system of politics, that being a millionaire or a billionaire actually helps us greatly to get the results we want. I agree that there should be a cap on legal fees. In addition, I would argue that we need a better tax system to make all pay their fair shares. Currently, we know that many of the large corporations and wealthy citizens pay little or no tax. If they did pay their fair share, we could have a totally free legal system to ensure equality for everyone before the law. totally free health cover (including dental services), totally free education from kindergarten to university, adequate numbers of quarantine centres and effective Cocid-19 vaccine rollouts,, refuges for women and children seeking safety from violent partners, solar panels for all public housing and other green initiatives and other socially useful and humane initiatives. Sadly, though, we are blighted by a political system that rewards the wealthy and does little to advance the legal, social and human rights of ordinary battlers. The rich are given good things and the poor are sent empty away (to amend the Magnificat).


Andrew (Andy) Alcock | 02 June 2021  

Good article Martin. It seems some are getting the best justice money can buy!


Jeremy | 03 June 2021  

Very important article. Thanks Martin. This relevant to family law for women trying to find justice for non-financial contributions as it is to planning law for communities attempting to protect the integrity of their social/ecological relationships up against developers. In navigating power differentials there is no obligation on the judiciary to consider this except for those who are forced into self representation. More work needs to be done on raising awareness of the economics of law.


Bron | 04 June 2021  

Our adversarial system of law is not the only system. Many other countries use the inquisitorial system. Our system is structured on lawyers arguing their client's case, the latter on judges questioning where the lawyer's role is to advise her/his client. It's arguable that the latter is more likely to arrive at the truth. I would be interested to know whether there any evidence that money is less likely to achieve a desired outcome in the latter than in our current adversarial system?


Ginger Meggs | 06 June 2021  

So good to see a lawyer put this issue in writing. The assumption of 'equality of all citizens before the law' is such an article of 'faith in democracy' that it too often stands unquestioned and unquestionable in the public and political domain. Martin Pike even managed to be a bit humorous, which is a first in my experience of legalese!


Joan Beckwith | 15 June 2021  

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