NSW Chief Justice Decries Commercialisation in the Law

BRONWEN EWENS
Volume 1, Issue 10 (Originally Published on 7 May 2012)
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In a speech at the Commonwealth Law Association’s Regional Conference in late April, the Chief Justice of New South Wales, the Honourable Thomas Bathurst, said “at the heart of concerns about commercialisation is the question of whether profit motivations compromise the core values and obligations of professional conduct.”

According to the Chief Justice, ‘mega-firms’, of necessity, adopt ‘inherently commercial’ organisational policies. The sheer mass of employees impacts on client relations, resulting in a state of anonymity for the clients. Furthermore, these clients become known only as a number, representing the amount of revenue they generate.

Chief Justice Bathurst lamented that, “in some cases young lawyers are left with the impression that the be-all and end- all of legal practice is the billable hour. The ethical future of an industry in which young people are exploited and indoctrinated into a culture in which professional duties may be superseded to personal gain, is of real concern. ... Talented and enthusiastic young lawyers these days are wary of firms governed by the billable hour. They try to avoid them and often will not stay for very long if they find that is the prevailing culture.”

The New South Wales judge also took aim at litigation funders, pointing out that they do not owe duties to the court in the same way that lawyers do. He highlighted that ‘litigation funders have, as their primary concern, the pursuit of profit by means of litigation (or settlement), while remaining one step removed from the oversight and inherent regulatory jurisdiction of the court. ... [T]he entrance into the legal market of entities that exist solely to profit from the promotion of litigation marks the dawn of a new era in the commercialisation of legal practice, which must be watched, debated and regulated very, very carefully’.

In conclusion, the Chief Justice noted that ethical conflicts have been part of legal practice since it began. Though many conflicts appear both age-old and insoluble, he noted that ‘openly discussing and debating the resolution of these conflicts is, in itself, an expression of ethical practice. Indeed, it is an essential act, on which the continued effectiveness of professional duties depends’.

You can access the full speech at:
http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwFiles/Bathurst2104 12.pdf/$file/Bathurst210412.pdf