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A Tip Toe Down Memory Lane

A Tip Toe Down Memory Lane

Wednesday 6 June 2012

People who come afresh to a situation generally accept what they see for what it is. They have no choice. It was like that when they got there. 

It’s no different in the law. A novice coming afresh to the law in the year 2012 finds the law just as it is. It has plenty of pageantry, centuries of history, a very defined hierarchy, some complex protocols, many niceties and many opportunities for those willing to fall into line and to work hard. Unconsciously though, some of the things we see or do nowadays were unheard of 35 years ago. In fact, some of the things we do in the law in the year 2012 were utterly heretic to the status quo of the 1970s and 1980s. Nowadays, we see the Supreme Court adjudicating over issues that the House of Lords once presided over. We see mega firms dominating the profession nationally and internationally. We see more graduates being churned out of law schools than ever before, the majority of whom are women. We see unspeakable pressure upon legal people to get jobs then to hold them in the profession. We see an explosion of pro bono work done at community legal centres and in free legal clinics. All in all, the legal landscape in the year 2012 is very different to what it was 35 years ago when I began. 

My purpose in mentioning this to you now is to give you a snapshot of what life in the law was like 35 years ago. Some things are still with us – some aren’t. The law has moved forward at an exponential speed in a mere 35 years.

Who was practising in those days?

Thirty five years ago the profession was made up of almost all males. In the main they were from a privileged background, they attended a handful of upper middle class boys’ schools then they attended one of only two acceptable universities. Sometimes a father or grandfather had been a partner of the firm that the young lad entered. In reality, there was a hand full of excellent firms in the city plus a huge number of mediocre ones elsewhere. Top students and well-connected young men went into the excellent firms. They were allocated roles in corporate matters, estates, conveyance of land matters or litigation. Rarely was there any overlap of disciplines. New solicitors aspired to become partners by, maybe, 28. 

Partners remained partners all their lives and very seldom did they leave their firms to join another. Most partners were appointed to boards of their clients, they played golf, they belonged to gentlemen’s clubs and were never to be found at their desks on a Friday afternoon between 12:30 and 3pm. They enjoyed upper middle calls affluence, married in their late 20s, sent their children to private schools and attended church on Sundays. Partners established client bases that lasted a lifetime. 

Partners were each allocated a secretary. She worked on a manual or later an electric typewriter. No one had heard of computers then. The secretary had attended a school to train her to make a career out of being the secretary to a male. She often worked for the one partner for a whole lifetime. The more senior she became at the firm the more powerful she was and invariably lauded it over new articled clerks and even junior partners. Smoking in one’s office was not only permitted, it was encouraged. On a Friday night all staff (legal and administrative) were invited to attend at some watering hole for some firm stories and bonding. Almost everyone attended. Each year the firm arranged a golf day, a tennis day, a football day and any number of inter-firm cricket matches. Moring and afternoon tea was delivered to one’s office by the 65 year old tea lady who had worked for the firm most of her post-war life. 

At the same stage, the Bar was one-third its present size (at least). The demographic composition was the same – men from private schools who had graduated from one of two acceptable universities. Doing criminal cases was anything but exotic and most well to do juniors were involved in heavy commercial cases. Appeals to the Privy Council were alive and well and were highly sought after briefs. Briefs from the large firms were always better prepared (and better paid) than those from smaller firms. Rarely was weekend work to be done. Horse racing, sailing, skiing and travel were the recreations of choice. Disposable income was much higher, taxes were much lower, work was more plentiful and anyone who occupied the office of Chairman of the Bar Council was guaranteed elevation to the Supreme Court.

Most barristers employed one secretary between three or thereabouts. Workers compensation cases and civil juries for common law negligence cases were a very rewarding source of income. Appointment to silk could reasonably have been expected at around 40. An applicant had to do no more than have a private discussion with the Chief Justice during which he showed a few entries of his fee book revealing the firms who retained him and the fees being paid to him. There were no witness statements in cases because all evidence was led viva voce. Good common law barristers made good commercial barristers and vice versa. There was no internet, no mobile phone, no computer, no social media, correspondence arrived and left the firm by letter (sometimes hand written) and the retired former senior partner delighted in reading all the gossip of the firm by opening the daily mail to see who was doing what to whom. No one suffered drug dependence, sherry at home after work was an essential wind-down tool and there were no publically discussed cases of mental ill health. 

In short, life was tranquil, predictable and gentlemanly and it moved at an acceptable pace.

Then came the 1980s

Almost with a blink of an eye, the landscape changed in the early 1980s upon the creation of the mega firm. Firms merged with other firms to become mega sized. Transactional commercial work went through the roof. State based firms merged with firms in other states to create national firms. International firms established a toehold in Australia. Often, the number of partners and staff of firms went from barely 100 (administrative staff included) to several hundreds. How tiny that is by current standards! This happened, essentially, overnight. UK names like Clifford Chance, Linklaters, Slaughter & May, and others become household names to Australian firms.

But one thing was born in those times that changed life forever. It was small and simple. Yet it became an unforgiving overlord. It was the timesheet. Every six minutes of every hour of every working day had to be charged to a client. And charged those clients were. All of a sudden firm profitability escalated out of sight. Firms became bigger and bigger. Staff, partner and administrative numbers grew in leaps and bounds. Firms began to engage in marketing activities previously regarded as debasing. All of a sudden firms entertained their clients on the firm yacht. They wined and dined their clients at corporate boxes at the horse racing, football or cricket. Firms built in-house dining rooms for their staff to give them the evening meal with a view to enabling them to keep working well into the night. And all the while they were serving that relentlessly unforgiving, heartless and soulless beast - the time sheet. Their sheer profitability gave firms unprecedented power – to hire the best, to pay them huge amounts so as to retain them and to acquire a strangle hold on the whole legal market. In time clients didn’t need to go anywhere but to that one firm for any aspect of legal services – except to fight court battles.

In the time that firms were growing in strength, barristers were being starved of the work they had hitherto undertaken. A lot of that work, such as pleadings, witness statements, particulars etc, was being done in the firms – maybe not as well as the barristers had done but most of it was being done in the one profit centre (the firm) and to a fashion that got the case to the next stage. If all went well, the firm negotiated a settlement and the litigation went away, to the client’s joy.

The 1980s saw huge change at the Bar as well. In no special order we saw the elimination of the two-thirds rule. That was a rule of practice by which a junior was entitled to two thirds of the fee of the senior. For newcomers, it was a brilliant rule as it gave newcomers an instant leg up to excellent fees. If a newcomer was lucky enough to get repeat business with a silk or senior junior, hey presto, his income was assured. For reasons lost in the sands of time and no longer clear to me, that rule was jettisoned. 

The 1980s saw an explosion in the number of barristers joining the Bar. The number of those doing commercial work rose astronomically. With the mega firms doing mega transactional work came mega litigation. In this epoch it was far from uncommon to see take over litigation involving legal teams working round the clock. The team was made up of maybe two or three silks, up to seven juniors and an army of instructing solicitors. The stakes were very high and neither side wanted to jeopardise its chances by having an under resourced legal team. So the big companies paid small fortunes for their legal teams. 

At this time it became trendy to do high profile crime but there was no legal aid to pay for it. Environmental law was becoming trendy as well but most of the practitioners in it were feral greenies with law degrees.

The new millennium

The big have got bigger, the rich have got richer and the poor have got the picture. The new millennium heralded in a collection of complications. Excess regulation of the legal profession was one. We saw the emergence of socially conscious legal practitioners who pushed the envelope of public interest litigation. Environmental litigation gained real momentum with interest groups bringing cases to court in which they claimed damages for misleading and deceptive conduct in respect of things ranging from battery caged chickens to pork producing tethered pigs. Class actions for corporate collapses as well as faulty silicon used in breast implants took up court space. Firms went global, the partners in which were appointed from the ranks of meritorious and hardworking associates, irrespective of socio economic issues. Women have numerically eclipsed male law school graduates. Over half who graduate never practice law. At the Bar we have co-advocacy where barristers are briefed with solicitors as their juniors and we have solicitor advocates, some of whom go on to take silk. 

There are no appeals to the Privy Council or to the House of Lords, most barristers and judges don’t wear wigs and tribunals have assumed a large role in dispute resolution. There are now more law schools than ever before. The tea lady is gone as is the gentlemanly lifestyle. The law is very much big business now rather than a learned profession. In all, it is a very different place to the environment in which I was raised.

But is that a bad thing? Definitely not.

Good luck  

Josh Wilson. 

Dr Wilson’s regular weekly insights into the legal profession are influenced by his decades of experience in court and teaching across the world.  Dr Wilson SC has been practising as a barrister in Australia for over 25 years, having already served in the Melbourne Magic Circle and as an associate to a Supreme Court judge.  His expertise derives from worldwide advocacy experiences and he is usually found in the Supreme Courts and Federal Court of Australia dealing with commercial and equity cases.  Married to a judge and father of three, Josh (and his kung fu black belt) is an advocate of all things law and more.  A legal genius (Josh took Silk in 2008 and holds a PhD in extradition law!) and with a large topping of good humour, Law and More proudly welcomes Dr Joshua Wilson SC as a columnist.

Next week Josh argues that you do not lose is if you don’t use it.

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