Money and the Law

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By Dean R P Edwards

Money has no place in politics, goes the tired complaint (ironically, as money seems to have an increasing place in politics and politicians’ pockets), but what of money in the law?

We often hear of generational change when it comes to the evolution of the legal profession into something more humanist, when it comes to women and LGBTI in the workplace, or the flexibility required for mothers and those suffering from mental health issues. We take issue with the cruelty of the old “chin up and deal with it” attitude—the lifestyle of getting wrong the so-called “work–life balance”—but what if there’s a niggling imbalance in the very way we work?

Another oft-heard complaint is the rapacity of lawyers in charging their clients. Many a lawyer has borne the brunt of a client’s fury upon receipt of a bill, and I am not overgeneralising to say that some legal bills are unjustified swindling. But there must be some truth to the charge, so to speak, or why else the recently introduced Uniform Law and all other manners of professional regulation?

I had recently quipped to some friends that not all lawyers are well-heeled (except I imagine some women, pursuant to whatever completely non-sexist company policy). Some lawyers even struggle financially, and I don’t mean the ones who only put themselves into financial straits.

As with all things that involve daily human toil, lawyering is subject to the vicissitudes of the modern-day working life, the model of which has become, over the decades, increasingly larger in scale and corporate.

And there’s the rub: in an age where public funds to legal aid are slashed, the power of private money dominates the concerns of the law and, undoubtedly if suspiciously unwittingly, the legal profession.

There is nothing especially new about that phenomenon, of course, and the issue of power and money in law goes back to the institution’s origins. But today, the profession likes to talk about access to justice, creating a more transparent legal system, a more humane workplace for lawyers facing personal hardships, among other noble concerns. None of this is possible without fundamentally changing how the law operates, both as a public institution and professionally.

Of course, one might argue in defence of the modern legal system that if corporates want to spend hundreds of thousands of dollars on enormously complex and time-intensive litigation, so be it. It’s their money and their prerogative. But this begs the question of how money and the power that comes with it fundamentally shape the legal system and the concerns and aspirations of the profession.

We like to give some semblance of truth to the proposition that political democracy is one person, one vote. At the same time, we accept that politics involves a large degree of behind-closed-doors deals and cash—for the Right, it’s the unions backing the Left; for the Left, it’s the corporates backing the Right.

At the same time as admitting to the reality of these backroom tactics, we have chosen to regulate money in politics, to stem the power of donors and unelected powerbrokers to peddle influence and manoeuvre the ship of state.

Why can we not do the same with the law? To even imagine the proposition as a course of action is to demand a total overhaul of how our legal system operates and what we expect of those working in the profession. Our courts are public institutions, but the concept of legal aid—in matters private and commercial as well as criminal and family-related—would need to be radically expanded. Profitability, and with it the nature of how the legal profession operates, would need to be subordinated to the utility of law as a public good, not a privilege.

This post doesn’t go so far as to offer any visions of that radically different future. There are brighter and more dedicated minds who can, and should, lend their wisdom and structure to such a vision. But the proposition takes each lawyer to task on the questions central to their work. I would go so far as to say that the legal profession cannot have a serious and honest conversation on the topic of mental health without addressing the systemic nature that money plays in driving the legal profession as a business (a taboo label for the profession) and the aspirations of its practitioners. Money lies at the heart of access to justice and what forms of justice are prioritised over others, and to whom we give voice for redress in our society, and whom we silence by the power of the dollar or its absence.

If I might be forgiven pirating the concept of how one deals with grief, to deny the centrality of money in law and the profession’s woes is the first stage towards a perhaps begrudging acceptance that something far more substantive must be done than addressing largely (but not totally) peripheral issues of what causes anxiety and depression in the profession.

If we want healthy practitioners, we must ask what role money should, and shouldn’t, play in the development of a more responsive and ethical legal system.