The Legal Industrial Complex – Stand up Philosophers

Ok.  TAFKAS reckons this post will set the cat amongst the pigeons.

In the 1995 movie the Usual Suspects, character Roger “Verbal” Kint made the most profound of observation:

The greatest trick the Devil ever pulled was convincing the world he didn’t exist.

When people consider powerful and pernicious unions, most minds default to organisations like the CFMMEU.  Well think again.

If the purpose of a union is to use all tools available to improve the pay, conditions, power and competitive positioning of its members, often (but not always) at the expense of non-members, then the CFMMEU cannot hold a candle to the big 3 – the Pharmacy Guild, the medical unions (AMA and various specialist colleges) and the various legal unions (law societies and bar associations).

If the CFMMEU and the ACTU want a lesson on how to use best practice political and regulatory capture and how to impose restrictive work practices, then they really need to better study these organisations.

Strategy number one … don’t let people think you are an industrial organisation but rather a professional organisation.  Strategy number two … present yourself as always acting in the best interests of the community and the nation.

TAFKAS will write about the pharmacists and the doctors another time, but let us just consider the legal profession and consider 2 particular work practices that have long disappeared from industrial sites:

  • No ticket no start – you can’t act as a legal practitioner without being a member of the relevant association.
  • Demarcation – lawyers can’t throw on a black cape and wig and act as barristers, unless they join the bar and vice versa.

Oh.  And if you want to ply your trade in another state or jurisdiction, you can’t just show up.  You need be recognised by the local union (“professional organisation”).  Even doctors can work cross state border.

And how do you measure the success of a union?  Start with looking at the pay and conditions of its members and the operation of the market for member labour.  One would imagine that if there is an area of the economy earning supernormal profits, those profits would be eroded away by new entrants.  According to the AFR, in 2015, there were 41 law schools in Australia and:

The number of law graduates has reached a record high with 14,600 graduates entering a legal jobs market comprising just 66,000 solicitors.

But somehow, lawyer salaries are increasing.  Yes, there are demand factors also, but according to the AFR’s numbers, the entire legal labour force can be turned over every 4 years.

And then, when the legal elite reach the pinnacle of their careers, they become judges, some of whom believe that their judgement cannot be questioned, such that they can send critics to jail.  Recall the 3 Liberal Ministers who were forced to apologise lest they be sent to jail for daring to make criticism.  Any other professional judgement can be criticised apparently, but not those of judges.

And here is another classic.  In Victoria right now is a Royal Commission regarding the use by the Victorian police of an informant who was also a lawyer representing those they informed on.   In an interview, on the ABC of course, the President of Law Council of Australia said:

I would like to understand fully from the Victorian Police what records they maintained in relation to human sources.  But more importantly, on what basis did they think it was appropriate to have a lawyer as a human source and informing against clients that they were acting for.

Fair question.  Very fair question.  But what about human sources who are not lawyers, who volunteer or are compelled to inform on clients they are acting for.  Consider accountants, doctors and priests.  The behaviour of the police and the lawyer in question was pretty bad, but will there be a Royal Commission into the use of other informants who also are in possession “privileged” information?

Pell-eeeeze.  More like the stand up philosopher industrial complex.  Lawyer solidarity forever.

 

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22 Responses to The Legal Industrial Complex – Stand up Philosophers

  1. hzhousewife

    I hereby declare that I actually do not have the guts to send this to my second cousin, a retired Judge (Federal and State), who lives in Victoria ( and I do not). We are not close, I do not know how he thinks politically, but I doubt I could survive the open invitation to lunch whenever I am next in Melbourne, without biting my lips to bleeding.
    Because of active recruiting into Vicpol, I also know of four actual young persons recently recruited/graduating into the force in Victoria. It has been very hard to genuinely be pleased for their parents, my acquantainces.
    How the lawyers involved in this can sleep at night is beyond me.

  2. stackja

    Sonia Kruger vilified Muslims on TV: tribunal
    Lucy Hughes Jones, The Daily Telegraph
    21 minutes ago
    Subscriber only

    Breakfast television host Sonia Kruger vilified Muslims when she called for Australia to ban immigrants of the Islamic faith on air, a court has found.

    The Channel 9 presenter launched a “stereotypical attack on all Muslims in Australia” during a Today show panel segment on July 2016, but it wasn’t racial vilification because Muslim people are not a race, the NSW Civil and Administrative Tribunal on Friday ruled.

    NSW NCAT is established by the Civil and Administrative Tribunal Act 2013.

    Our workload is managed under the following Divisions – Administrative and Equal Opportunity Division, Consumer and Commercial Division, Guardianship Division and Occupational Division.

    The President is a Supreme Court judge with experience in administrative law and commercial dispute resolution. Deputy Presidents are responsible for the management of matters within their Division.

    Tribunal Members are independent statutory officers assigned to Divisions to hear and determine matters before them. See our list of Tribunal Members.

    ​The Principal Registrar oversees the administration executive and registry functions of NCAT. Registrars are responsible for the administrative and case management functions for each Registry.
    ​President

    The Hon Justice Robertson Wright​
    President of the NSW Civil and Administrative Tribunal (NCAT)
    Deputy Presidents

    ​Magistrate Nancy Hennessy
    Deputy President and Division Head of NCAT’s Administrative and Equal Opportunity Division

    Mr Malcolm Schyvens
    Deputy President and Division Head of NCAT’s Guardianship Division

    Mr Stuart Westgarth
    Deputy President and Division Head of NCAT’s Consumer and Commercial Division

    The Hon Acting Judge Jennifer Boland AM
    Deputy President and Division Head of NCAT’s Occupational Division

    Acting Judge Kevin O’Connor AM
    Deputy President
    ​​Principal Registrar

    Cathy Szczygielski
    Executive Director and Principal Registrar of NCAT
    Registrars

    Amanda Curtin
    Registrar and Director for NCAT’s Principal Registry

    Louise Clegg
    Registrar and Director for NCAT’s Administrative and Equal Opportunity Division, Occupational Division and Appeal Panel Unit

    Pauline Green
    Registrar and Director for NCAT’s Consumer and Commercial Division

    Jane Pritchard
    Registrar and Director for NCAT’s Guardianship Division.

  3. tgs.

    Great post.

    As insidious as the blue collar unions are they have nothing on the white collar unions.

  4. Miltonf

    Very bad legacy from the Norman conquest. The feudal system lives on.

  5. eb

    OK, I’ll bite.
    Isn’t there some merit in consumers being able to tell if a lawyer or medico actually has qualifications in the field they are supposedly practicing. In the absence of all other information, how could I even begin to assess who to engage as my solicitor if I there is no professional body that has standards to which the professional must adhere.
    Your equating of members of the CFMMEU with lawyers and medicos is off beam. Sure they may both be aiming at a closed shop from their point of view, but from the consumers view, whether your tradie is a member of the union or not makes no difference. If your lawyer was un-registered, I think you may have a little less faith in their ability to win your case for you.

  6. hzhousewife

    in the field they are supposedly practicing.

    so Phelps is a migration lawyer?

  7. Bruce of Newcastle

    ¬Spartacus, this is a fine blogpost.

    Immediately it brings to mind Conquest’s 2nd Law:

    2. Any organization not explicitly right-wing will sooner or later become left-wing.

    You can see why the lawyers, doctors and pharmacists’ guilds might become lefty. The mechanical cause is that righties just want to do their own thing, like heal people and win their court cases. Lefties though want to save them from themselves, save all their relos from each other and save the world from bad sex, global warming or Cthulhu, whichever is most threatening at any particular time.

    But somehow, lawyer salaries are increasing.

    And this shows the problem. The parasites have managed to reach such important positions in our society that nothing happens without their incredibly essential lubrication. The energy of our nation is being consumed by people who are fighting to allow a major coal mine to be built, over the opposition of their colleagues fighting for the lives (maybe) of several small birds (who have wings and could easily fly elsewhere). As a result of this epic legal fight a number of lawyers are getting quite rich and lots and lots of ordinary Australians are sitting around hoping for a job.

    Same goes for pharmacy and doctors, who seem to regard a bunch of constipated illegal migrants on Nauru, who have access to a rather good local health service, are the latest cause célèbre to die in a ditch over. I pity their local patients.

  8. Pyrmonter

    Bait duly taken.

    (a) legal qualifications are now, for all intents and purposes, portable. It matters little whether you’re a graduate of Charles Darwin (3/5ths of whose students are TAFE) or Sydney – you can get a practicing certificate (even Pyrmonter, a middling graduate of a lesser sandstone uni is allowed one, of sorts). And whatever may once have been the case, even in NSW, which has a nominally strict segregation of barristers from solicitors, movement between the two specialisations is fairly straightforward. The smaller states have operated ‘fusion’ since their foundation. The existence of a separate bar is evidence of specialisation, not chicanery.

    (b) there is an (over-) abundance of lawyers. The barriers to entry (pointless study of legal philosophy, criminal law) are not operating to hold back entry – as the numbers enrolled (at considerable expense to the taxpayers) in the law schools testifies. Most of those students won’t go into public practice – they will go into the other professions (a number do tax, virtually its own profession), vocations like banking; or the public service (an LLB is the new BA …). At the point of entry, most will qualify – if there were in fact super-normal returns to be had, we’d have a lot more lawyers. In fact, that was the case with a lot (maybe even a majority) decades ago when Pyrmonter graduated.

    (c) partly because being good at law is hard; and partly as a relic of distant times when there were occupational barriers (conveyancing lawyers on the Gold Coast driving gold coloured Mercs etc), law has tended to attract some of the very brightest. In my view, that’s a bit of a waste of talent that could often be applied elsewhere (Though I’ll think differently if ever charged with something criminal, and, given a choice as a client, will almost always go for the most talented barrister available). When TAFKAS sees high earnings, what he’s tending to see are the returns to talent – very often returns that are lower than could be earned, on an hourly basis, from more routine, albeit less interesting work in commerce or accountancy.

    (d) There are a very few lawyers who do very, very well financially. Alan Myers is one (though most of that appears to have come from judicious investment and management of a business, not professional earnings); Jonathan Sumption another. But do you really think that the sort of people who can (in Sumption’s case) maintain an amateur interest in medieval history sufficient to write prize-winning academic texts as a hobby are going to go unrewarded wherever they go?

    If TAFKAS wants to pick on a field full of overpaid nonentities, he’d be better placed looking at some more obvious ares of unexplained growth – university administration, for example.

  9. Pyrmonter

    As for the ‘overpaid’ – it would be interested to compare these results with, say, the remuneration of Faculty Deans and Assistant Deputy Pro Vice Chancellors.

    https://www.lawyersweekly.com.au/biglaw/23145-what-does-the-new-ato-data-say-about-your-pay

  10. Tel

    (b) there is an (over-) abundance of lawyers. The barriers to entry (pointless study of legal philosophy, criminal law) are not operating to hold back entry – as the numbers enrolled (at considerable expense to the taxpayers) in the law schools testifies.

    That’s OK, there’s also an over-abundance of situations where lawyers are required.

    Expect that to increase significantly … now that we are running out of real industry.

  11. John Barr

    (In Victoria right now is a Royal Commission regarding the use by the Victorian police of an informant who was also a lawyer representing those they informed on. )
    I wonder if the same people who are calling for blood in the Lawyer Informant case are the same ones who are calling for Priests to reveal what they have heard in a Confessional?
    Now that would be interesting to know.

  12. Pyrmonter

    @ Tel

    My view on that fluctuates. There seems ever greater complexity in legislation: see the exchange on TAFKAS’s last post (I’ll add that, at least as a consumer of it, I think the quality of legal drafting has declined over the past few decades). But this isn’t new. We now have available online decisions on matters like aribtral awards and determinations from the first half of the 20C. Dive into those (and remember there were hundreds, if not thousands of them flowing from bodies like the statutory marketing boards, the rent and price boards); or the historical customs duties; and you see a complexity from which we are now, happily, free.

    Here is a taster:

    http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAIndRp/1916/1.html

    (the judge, Jethro Brown, was a fine legal academic – it’s easy to think his talents were wasted on this sort of thing – https://en.wikipedia.org/wiki/William_Jethro_Brown)

  13. sdfc

    When a one page report comes with four pages of disclaimers you know lawyers are onto a good thing.

  14. Tim Neilson

    Pyrmonter is right.

    The problem isn’t that the legal profession is in any way successful in defending its patch against newcomers. Most lawyers in the over-supplied world of private practice would be better off financially doing something else.

    The problem is that our hyper-regulated society rewards navigating the arcane world of restrictions on productive activity far more than it rewards the productive activity itself.

  15. RobK

    I think Pyr and Tim are onto it.

  16. Linden

    It is a cosy club the legal system. All looking out for one another!

  17. Linden

    Yes I think you nailed it there, wonder how much of this bullshit Labor will invent after the elcetion? Retirement can’t come quick enough, be nice just to sit back and watch it. Wonder how many high ranking Victorian Police officers are looking at the retirement options right now, plenty I’d say, why would anyone want to be tangled in the mess that is now the Victoria Police Force for instance.

  18. Linden

    Funny how the infamous Lawyer X in the gangland wars saga is the daughter of a form Supreme Court Judge and former Victorian Governor.

  19. PB

    Doctors and other medical pratitioners/caregivers working across State borders without having to grease the palms of a State licensing body is a comparatively new thing.

  20. John Stankevicius

    I will agree with EB. I have seen deleterious acts committed by self from some one who said they could do the job and a lawyer was not neccessary. These associations were set up to to provide standards to their workfoce and provide guidance on new ideas. The days of the closed club are gone – this was smashed in the 80s when talent overtook who or what you are. It was in the 80s that people questioned doctors,lawyers etc and today no one listens to them. Further the days of a closed ship to increase earnings is also gone with the number of grads outstripping jobs vacant.

  21. Linden

    two bob a dozen as the old saying goes.

  22. Louis Hissink

    Before the Enightenment human society was ruled by the Church(es) and the individual’s behaviour was pro and prescribed by the interpretation of whatever religious scripture in use as authorityat the time. The interpreters of the various holybooks were the priests etc.

    Today we have secular humanism and the authorative State with its myriads of laws and regulations interpreted by lawyers. (there remain some who continue believing they answer to an higher authority than the State).

    Lawyers are thus priestly replacements and nothing has changed, just the uniforms.

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