Superheroes: lawyers and social workers—but where are our Universities?

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By Bevan Warner

Batman and Robin were an irrepressible team, each with unique talents, who fought the good fight. Spiderman fought alone but had powers that made him superhuman. Was the dynamic duo or the singular superhero more powerful or better?

Just like our superheroes, lots of talented staff chose to study law with the express intention of standing up for what is fair and using their skills not to enrich themselves but to benefit and better the community.

They saw the potential for the law to oppress and enable: a force from which people will often need protection, but also a tool that can help individuals obtain protection and to realise their rights and lead fulfilling lives.

Many of today’s law students come to their studies with similar aspirations of fighting the good fight and using the law for social good, but do our Universities equip them properly for this task?

While law and commerce is a popular conjoint degree, few universities have a similar degree option for social justice lawyers. Those who are interested in the operation of the law for everyday people, will often undertake a conjoint law and arts degree. While this combination provides invaluable critical thinking skills it does not provide all the practical skills for effective social justice lawyering.

Why aren’t our Universities offering dual social work and law degrees to better prepare our social justice lawyers of the future?

Why make people study twice and work in two careers when a singular super professional hero would be better?

Victoria has been a leader in incorporating clinical legal education models in basic law degrees.

Former Victoria Legal Aid board member Mary-Ann Noone pioneered this work as she taught a new generation of social justice lawyers at La Trobe University and it is now routine for universities to entice students with some offer of practical experience of the law in their coursework. But still, no cross over single degree between law and social work. You can be Batman or Robin but not Spiderman – I sincerely wish I had a gender neutral superhero to choose from, but alas I do not.

I wonder which Australian University will be first?

Our lawyers at Victoria Legal Aid often reflect on how their role is as much about being a social worker as it is a lawyer. To only help a person with their legal issue, without assisting with the many other non-legal issues that underpin their legal problem, is to not do our job effectively.

Many changes are needed to achieve fairness before the law for everyday people but I venture that bringing social work into our law schools will be an important piece of the puzzle.

A fit-for-purpose degree with a mix of law and social work skills would be a great way to harness the passion I see in many of today’s law students who are clamouring to work at Victoria Legal Aid.

It would build on Victoria’s legacy as a leader in legal education and contribute greatly towards building the workforce we need for our future.

— Bevan Warner is the Managing Director at Victorian Legal Aid

Lawyers, law, living rooms and televisions (Part 2)

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By Finchley Atticus

In part 1 of this article, I put forward the theory that we connect more emotionally with characters from portrayed on TV in the confines of our lounge room, than we do with cinematic portrayals of legal heroes. It was Patrick Duffy, forever famous for portraying Bobby Ewing in the 80s drama Dallas, who believed that one reason we have an emotional connection with TV characters is because the audience watches them between their feet.

I also have a theory that, for some people, our TV is a subconscious extension of our notion of our values and our ideal world, all contained within the parameters of a 24-inch flat screen. Why do I say this? Over the past few years there’s been a cyberspace debate which I think promotes a distasteful, offensive and racially tinged line of thought about the direction of a sort-of-legal mystery drama, the enduring British TV series Midsomer Murders. I became a fan of Midsomer Murders only a few years ago and I guess for many devotees it’s our Sunday roast comfort meal, which we savour in our lounge, knowingly disconnected from reality for two hours as DCI Barnaby and his loyal sidekick Sergeant Charlie Nelson solve their way through a string of murders. And all done in a quaint, charming and typically English village in the fictional county of Midsomer. I love Midsomer Murders (and I’ll probably earn the ire of die-hard fans who lament the departure of the original DCI, Tom Barnaby) and of course all fans know the premise of Midsomer Murders is absurd: the body count in these picturesque English villages would notoriously rank Midsomer County as one of the most dangerous places on earth (well in the UK anyway). But we accept that a relatively high number of Midsomer folk have murderous tendencies, and for a TV show there’s nothing wrong with that. It’s TV after all.

But strangely some of the Midsomer fans who without question suspend their disbelief at the unrealistically high body count, are willing to display major disbelief bordering on severe apoplexy at the sight of a “minority” (code for anyone who doesn’t resemble anyone of white European stock if you know what I mean) in a Midsomer village. We can debate the census statistics of the real life racial profile of a British village, although having lived in the UK for a few years I can attest there really are minorities living in UK rural and remote areas.  But so what if a true life British village is void of minorities?  Last time I heard, there’s a difference between a TV drama and a documentary, and Midsomer Murders ain’t no documentary and surely no-one expects a TV drama to be 100% true to life. After much thought, I think these fans’ concerns about “political correctness running amok in Midsomer” possibly harbours a more deeper and sinister agenda. Sadly I believe, it’s a deep affront to their sensitivities that people-who-don’t-look-like-them (if you know what I mean) are in effect intruders in their house, their lounge room, their sanctuary, a harbour from the real world. These minorities suddenly appear between the feet of Midsomer loyalists who wish to take an evening’s leave from the reality of the world to relax on their couch without feeling uncomfortable by the appearance of minorities who in real life would never been seen inside their house. Why isn’t the Australian Consumer Law protecting the loyalists from such intruders on their 24 inch flat screen?  For such Midsomer loyalists, real life alone is gritty enough although they are willing to cope with watching minorities between their feet if they’re being pursued by unbearable evening “current affairs” reporters, being depicted serving cocktails to drunk tourists in Bali, or if they’ve accidentally switched to SBS after watching The Footy Show.

There we have it for better or worse. Television for some becomes an escape from the harsh realities of life. Nothing wrong with that until viewers subconsciously at least appropriate (or misappropriate) a TV storyline to shape and perpetuate stereotypes (mostly negative) out in the real world. To their credit high-rating US legal dramas like L.A. Law, Ally McBeal and The Practice featured minority performers in lead roles. Whilst I’m no psychologist, I wouldn’t be surprised if the presence of minority characters in living rooms across the USA helps to remove subconscious barriers to the acceptance and promotion of minority lawyers in real life (if that sounds incredulous, there is a body of thought that Dennis Haybert’s positive portrayal of an African-American President in the TV series 24 paved the way for the election of Barack Obama to the White House just a few years later). TV can open up hearts and minds to accepting new situations outside their norm. Just recently The People v. O.J. Simpson screened in Australia, based on the O.J. Simpson trial back in the 90s. Pop culture theorists can make the case that the O.J. Simpson trial was the biggest reality TV show of all time, even bigger than the Kardashians (coincidentally Robert Kardashian, the father of the Kardashian reality stars, was a close confidant of O.J. Simpson) because it was one of the first criminal trials to be broadcast in the USA. Americans were introduced in their lounge room to the dignified presence of Judge Lance Ito, a Japanese-American jurist presiding over the biggest trial of the century (well according to the media, but still).

Yes, Australia has some fine legal TV dramas over the years … Carson’s Law in the 80s, Janus a decade later, and more recently Crownies, Janet King and Rake (despite its title, the SBS series The Family Law, which features an all Asian cast, is not a legal drama). I stand to be corrected, but it’s rare to see a minority performer featured in a support role let alone in the main cast of an Australian TV legal drama. Maybe with a touch of fortune the casting directors will be open-minded and cast a minority paralegal who in the storyline is grateful to the law firm to be appointed on a five year contract, coincidentally the length of a TV series run. Or if the producers are bold, open minded and ground breaking they could grant an Asian actor the prize role of the law firm’s crack IT director of course – yes I’m being sardonic and sarcastic all at once. It’s timely though that the Australian Racial Discrimination Commissioner Tim Soutphommasane warned that young lawyers of Asian backgrounds are held back from promotion up a firm’s ladder due to stereotypes of them as “technicians, not leaders”. Lawyers are intelligent folk who are supposed to act rationally on the facts, but I can’t help but wonder how influential TV has been in giving both aspiring and practising lawyers the impression that minorities are pretty much invisible in the forefront of legal practice.

Maybe there’s a risk of giving TV too much credit in shaping our values and outlook and even our speech patterns (I have a theory that even though James Cook was never formally held the rank of Captain – he was Post-Captain, any of the post-Star Trek generation will by habit refer to the great explorer as Captain Cook because it sounds so similar to Captain Kirk). I found in my research project that amongst the current generation of female lawyer students, the 2001 legal comedy Legally Blonde was inspirational, particularly the effervescent law student Elle Woods personified by the ever-radiant Reese Witherspoon. So Finchley, you’ve just cornered yourself because Legally Blonde was a cinema movie! Of course, but I’m willing to suggest that the current crop of law students first saw Legally Blonde thanks to DVD in their lounge room. But funnily enough the transition of a successful movie to TV doesn’t always go smoothly. After the mega-success of Legally Blonde, a TV pilot of based on the movie was produced for a US network but they passed on it.

Maybe there’s a hint of exaggeration in the impact of television on the minds of law students, lawyers and the general population. But really it’s no more an exaggeration that sadly some TV scriptwriters and production executives perpetuate through stereotypes we watch between our feet in our lounge room.

I wish I knew… I’d never be Alicia Florrick

Claudia McGarva

By Claudia McGarva

I love the television show The Good Wife. I love that Alicia Florrick can become a partner of one of the biggest law firms in Chicago with only two years’ post admission experience. I love that she always has career-defining cases fall into her lap, can do shots of tequila without wincing, and that she’s interesting enough to have the National Security Agency keep tabs on her. She also has impeccable hair.

Most of the time it feels like I am treading through the paper trail and not doing the high-level lawyer stuff that I signed up for. It is the time spent chasing people for documents you requested weeks ago. The time spent reiterating the advice you have already given three times. The time spent making sure all the emails you printed made its way onto the file because someone else has collected your printing or you’ve forgotten to collect it. By the end of the day, I’m so tired I barely have the capacity to read the expiration date on the milk let alone the stack of recent case law that I promised myself I would read before bed.

I’m sure there are high functioning lawyers who engage in high stakes litigation and have decent hair. However, most cases I manage are on a trajectory that don’t challenge the foundation of the legal system or become a career defining moment. I’m tempted to blame television for mismanaging my expectations that a legal career would be perpetually inspiring and challenging. Sure, there have been a few moments where these elements have transpired and this is why I am still a lawyer. However, much of the work is administrative, frustrating and … work. This isn’t a bad thing. If I were Alicia Florrick, I would have burnt out and have a Christmas tree made out of tequila bottles. Sometimes, though, it would be nice if the reality of being a lawyer matched the image of a lawyer.

However, the real ‘aha’ moment of my legal career was when I found out that the Julianna Marguiles, the actress who plays Alicia Florrick, wears a $10,000 wig on set. If Alicia Florrick is even faking it till she makes it, then there is hope for the rest of us.

Lawyers, law, living rooms and televisions (Part 1)

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By Finchley Atticus

Lawyers in Your Living Room! Law on Television by Michael Asimow is a 2009 book that guides readers through our beloved legal dramas over the decades.  Perry Mason, Law & Order, Ally McBeal, The Practice, Boston Legal, the TV lawyers we grew up with and motivated eager law students to wonder aloud in a criminal law tutorial “What would Jack McCoy/Ally McBeal/Alan Shore do?”. For the current generation of law students, Harvey Specter’s legendary quotes probably receives more insight and attention than that of a corporations law lecturer (with due respect to all corps law academics who are tireless in their efforts to get students interested in the Corporations Act).

I’m a devotee of L.A. Law, Law & Order, Ally McBeal, and The Practice.  It’s trite for well-meaning folk to remind us these shows are fictional, with “fictional” being the operative word. However I’m willing to submit to the bench that The Practice is as close as any TV series will get to a true-life street shop law practice, where not all the good guys win but some of the bad guys do. What caught my attention about Asimow’s book is the title. Not the “Law on Television” bit. It’s the “Lawyers in Your Living Room”, particularly the living room.

I have a theory I’d like to put on the coffee table.  I think there’s a greater probability of connecting with our legal heroes if they are portrayed on TV. Yes, we connect with our cinematic legal heroes, and a bit more about that later.  So why television? The fact Asimow’s book isn’t titled Lawyers in Your Corner Office with Harbourside Views probably provides an inkling. High profile American defence attorneys Mark Geragos and Pat Harris in their book Mistrial, criticise a growing number of prosecutors as “moralistic crime fighters” having grown up watching television shows like Law & Order, such as the outsized role television plays in developing the hubris of some prosecutors.

A few years ago, I saw an interview with US actor Patrick Duffy, forever immortalised as Bobby Ewing in the 80s TV drama Dallas. Duffy was asked why viewers become emotionally invested in TV characters. I thought Duffy was trying to draw a laugh when he believed it’s because the audience watch their favourite stars between their feet. The more I thought about it, the more I realise he has a serious point. It’s in the comfort and safety of our home, predominantly in our lounge room, where we follow the trials and tribulations (no pun intended) of our legal characters, week after week, all encapsulated in an hour-long episode. And we do so relaxed and spread-eagled on our favourite couch (explaining why the viewers in Gogglebox are couch bound), drinks and comfort food in hand, dressed as casually and daggy as we like. We really are ourselves in our lounge.

A person’s home is their sanctuary, a concept embodied in some laws. Tragically there are ways a home, and by extension us, can be threatened. World leaders invade countries. It was only relatively recently that home robberies became termed home invasions (God forbid this doesn’t happen to anyone). Home invasions have high priority in the 6 o’clock news, broadcast across millions of, yes you guessed it, lounge rooms nationwide. We have Australian Consumer Law protections to shoo away intrusive door-to-door salesmen and telemarketers. Sure, maybe more of us have less need for landlines, but there is an underlying and potentially sinister invasion of our sanctuary when a stranger calls, especially when our kids are around. Lawyers who grew up in the 70s can be forgiven by still being chilled by the threatening line “Have you checked the children?” intoned by the murderous home invader over the phone in the 1979 American cinematic thriller When a Stranger Calls, where the innocent babysitter was shockingly warned over the phone by the police to “get out of the house, the call’s coming from inside the house!!”

It’s no coincidence the Australian legal comedy The Castle is called The Castle. A man’s home is his castle after all, and we cheered everyday hero Daryl Kerrigan as he took up the cause against the Government using legal means to take his sanctuary. Pacific Heights, a 1990 US motion picture centred on married homeowners played by Meg Ryan and Matthew Modine, seeking to evict a tenant. The cruel twist being the tenant uses the law to outstay his welcome in the couple’s home. Remarkably, this is reflective of real Californian laws.

Now isn’t it ironic my exhibits to support my theory are all cinematic releases? Maybe, but as children growing up in the 70s and 80s, we were too young to see When a Stranger Calls in the cinema. Which is why we saw it on TV in the safety of our lounge and delightfully imitated the chilling quotes the following day at school. I’d take an educated guess and posit that a large majority of people who saw these motion pictures did so in their lounge room, especially aided by the VHS and then DVD boom.

Sure, TV can’t really replicate the big screen experience but the cinema isn’t our private space. Yes cinemas give us the big screen experience, mass audience participation, popcorn and choc-top ice creams. But in some ways the cinematic experience can be disruptive and intrusive, with some inconsiderate and rude patrons stumbling over our legs, sending texts or even worse phoning during the screening, munching, coughing, sneezing, exposing us to foot odour, and scratching whatever body parts.  And cinemas expect us to fork out $20 for the privilege! At least in our lounge room we can text, talk, munch, cough, sneeze, remove our shoes, and scratch whenever we want thank you very much.

But au contraire, Finchley, what about Atticus Finch, our fictional hero who for many lawyers ranks at the forefront in the cinematic pantheons of lawyers who inspired many a high schooler to enrol in law school to balance the scales of justice. To Kill a Mockingbird was a motion picture, not some cheap network TV series. Good point. I’ve had to give some thought to this. Here is where my lounge room TV theory starts to become metaphorical. To Kill a Mockingbird had its cinematic debut in 1962. Yes since then there have been special anniversary limited runs, but I’d be willing to say that unless you are now old enough to be on the pension, a very large number of law graduates saw To Kill a Mockingbird in high school during a legal studies class if they didn’t watch it in their lounge.

But, Finchley, sorry to point out the obvious but high school isn’t a home. Again, I had to really think about this … when you add up all your hours in a typical week at high school (boarding schools aside), you realise it’s almost equivalent to your total waking hours at home. You probably saw more of your teachers and fellow students than your parents. For better or worse our high school classroom became symbolic or even a proxy of our home and lounge room. High school was the place where we promised to be friends forever, developed crushes, hearts got broken, gossiped, goofed off, laughed, cried and who knows what else. It’s also the place where To Kill a Mockingbird debuted for many aspiring law students. Sure, school isn’t a home but I think we know at least one high schooler who suffered embarrassment by accidentally calling their teacher “Mum” or “Dad”. I don’t know anyone who for a brief moment accidentally called their Mum or Dad the name of their favourite English or Legal Studies teacher.

You can take us away from our lounge but it’s another thing to prise TV from our lounge room. About 25 years ago Sony released the Watchman, one of a line of handheld televisions, with the Watchman name being a pun on Sony’s famous invention the Walkman. A certain generation have fond memories of their Walkman, a hand-held audio cassette player to which we bopped to Cyndi Lauper and partied with Prince like it was 1999. But why weren’t people captivated by the Watchman, which one could cradle in our portable private space to make sure we never missed the latest episode of L.A. Law. Why didn’t many watch the Watchman?  It goes back to the lounge room theory and the intimacy it affords. It’s difficult to recreate that same intimate atmosphere on the bus, train or tram where your private space (for what it is) is interrupted by disruptive and intrusive passengers, some of who will stumble over our legs, munching, coughing, sneezing, exposing us to foot odour, and scratching whatever body parts. Maybe things have changed over 25 years with shows now streamed on demand on our smartphones or tablets, but with that comes the inconsiderate passengers sending texts or yakking on their devices in our private space on the bus train or tram. Still the same, to paraphrase US rocker Bob Seger.

Part 2 continues soon.

Harper Lee

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It should come as no surprise that the inimitable Atticus Finch was conjured up by an author very familiar with the legal profession. Nelle Harper Lee was introduced to small town trials and white mob violence at a young age. Witnessing the injustice of the courtroom for black defendants inspired the Tom Robinson sub-plot of of To Kill a Mockingbird. Lee’s father was a lawyer and a member of the state legislature in Alabama. In 1919, he defended two young, black men against a murder charge. Just as in the novel, the young men were convicted.

At first, Lee followed in her father’s footsteps, beginning a law degree at the University of Alabama. She studied law for a few years but chose to abandon the degree before completion, in favour of dedicating her time to writing. Harper’s sister Alice, on the other hand, was one of the Deep South’s first female graduates of law. Alice Lee practised in her Alabama law firm until she was over 100 years of age. Allegedly, Alice Lee was also her younger sister’s legal guide, helping her to navigate publishing deals and copyright law.

Judicial Bullying: a (brief) Beginner’s Guide

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I have been coaching new lawyers for many years now, either in group workshops, or privately as an individual, and the one conversation that I can always count on having is the conversation about judicial bullying. Whilst not every new lawyer has experienced judicial bullying, most have, and the ones that have not experienced it directly have seen it happen to colleagues and live in fear of it happening to them.

Alarmingly, those that report having been bullied by judicial officers, describe their experience in terms that are almost identical to how victims of verbal and psychological violence in a domestic setting describe their experience. For instance, they talk of being frozen in the moment, unable to respond for fear of exacerbating the bullying, being unable to flee (as a practitioner cannot leave the Bar table without permission) and feeling sick to their stomach, distressed, and sometimes unspeakably angry, but at the same time feeling completely unable to defend themselves adequately due to the power imbalance between them and the judicial officer. They speak of being so thoroughly humiliated that they have sometimes resorted to taking days off after the event. They speak of having a sleepless night or two where they mentally run through everything they have done – should I have said this? Maybe I shouldn’t have said that. They think if they can identify what it is they have done to deserve the bullying, they can make sure they don’t do it again and they will therefore not be bullied in the future. Usually they then speak to me of plans they have come up with to try and stave off the next bullying attack. Finally, they ask me hopefully if I have any tips for them. I never enjoy the look of fear and disappointment that crosses their faces when I advise that actually there is nothing they can do to stave off the next attack. Absolutely nothing.

Relying on the lived experience of new lawyers that confide in me, judicial bullying often includes (but is not limited to):
– Shouting at them;
– Deliberately saying things to embarrass or humiliate them;
– Asking them to justify themselves in circumstances that are unfair;
– Calling them names;
– Calling into question their professionalism in circumstances that are unfair;
– Accusing them of incompetence in circumstances that are unfair;
– Using various facial expressions to demean or intimidate them;
– Setting unrealistic time frames;
– Making them work through lunch breaks;
– Refusing to give them time to formulate an argument or response in circumstances where it is unfair to do so.

Apart from being obviously degrading and damaging to lawyers, judicial bullying can be disruptive to the court process itself (it can sometimes take an awful long time to pontificate), and it can also be damaging to lawyer/client relations. The client is unlikely to be able to objectively assess the judicial officer’s words or looks and can sometimes take their words, for instance, as statements of fact from a higher authority. The client then leaves court feeling that the lawyer has not done their job properly or has otherwise failed them and that, therefore, they have not had a fair hearing. Likewise, other lay people sitting in the body of the court would be forgiven for watching a judicial bully in full flight and wondering whether it is even possible for justice to be done in such a chaotic courtroom.

Of course, we are not talking here about justifiable complaints made by judicial officers. I have never had a new lawyer complain about a justifiable complaint made with grace and tact. I have received many complaints about judicial officers using the inexperience of a new lawyer as an excuse to vent some of their own inner stresses.

And this is where it gets interesting. I think we can all agree that psychologically healthy people do not bully others. The same goes for judicial officers. Psychologically healthy judicial officers do not bully others. If they do feel that the advocate has not performed to their expectations, they may say so tactfully and gracefully. Healthy judicial officers do not resort to name-calling, shouting, or facial expressions designed to humiliate or intimidate the advocate. Judicial bullying, seen in this context, stems from a mental health crisis in the judiciary which impacts, in turn, on the wider profession and the community as a whole.

So what is to be done? How do we make judges healthy so we can work in a healthy workplace?

Happily, this question has already been asked and answered in part by the Judicial College of Victoria who recently launched Australia’s first online wellness resource for judicial officers aimed at assisting “judicial officers to respond optimally to stress in themselves and others.” http://www.judicialcollege.vic.edu.au/judicial-wellbeing. Naturally, the idea behind the resource is to promote wellness among judicial officers who are renowned for suffering from stress, anxiety and even vicarious trauma associated with their unrelenting work schedules and the nature of the proceedings that play out before them.

At the same time, the government is also taking steps to bring about some much needed accountability. In 2015 the Andrews Labor Government announced that they would establish a new commission to investigate complaints into the conduct of judicial officers in Victoria. The commission will not only be able to investigate complaints, it will also have a process for especially serious cases whereby it can refer judicial officers to a special panel with coercive powers. In some circumstances the panel could recommend removal from office. The Judicial Commission of Victoria Act 2016 comes into operation 1 July 2017. Under s5 and s6 of this Act an individual or, a professional body on the individual’s behalf can make a complaint into the conduct or capacity of a judicial officer or a non-judicial member of VCAT. This is important, as many individuals may be reluctant to report poor judicial behaviour if it may mean jeopardising their career. The Heads of Jurisdiction, the AG and the IBAC can also make referrals. The Act provides the commission with coercive powers. Judicial officers can be made to produce documents, appear at hearings, undergo a medical procedure and the Commission even has the power to issue search warrants.

Unfortunately, the legislation does not identify what type of conduct is reportable. Likewise, it does not refer specifically to judicial bullying and it does not provide a definition of it. For a long time conversations about judicial bullying have been complicated by the lack of any universally accepted definition of what judicial bullying is. We do, however, currently have two definitions of ‘workplace bullying’ within the legal profession that we can draw from. For instance, under Rule 123(c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 – a barrister must not in the course of practice, engage in conduct which constitutes workplace bullying defined as: “unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace”. The Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 has a similar provision but its definition of workplace bullying is, arguably, broader. It defines bullying, as “bullying that is unlawful under the applicable state or territory anti discrimination or human rights legislation If no legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms in includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimated, offend, degrade or humiliate.”

Putting definitions aside, the twin approach of assisting judicial officers to be psychologically healthy as well as making them potentially accountable for their stress-related behaviours has to be a recipe for success.

While we are patiently waiting for the effects of these latest innovations in the legal landscape to trickle down here are some tips to assist the new lawyer to manage their experience of judicial bullying.

• Place the behaviour in context. It helps to understand judicial bullying as a reflection of the psychological status of the judicial officer, rather than being attributable to something you have done or haven’t done.
• Don’t show fear. Be firm with the judicial officer, particular if they are resorting to name-calling, shouting, or accusations of unprofessional conduct. You are entitled to defend yourself. You might say for example: “Your Honour’s accusations are unfair. They are unfair because…”. It is not a sign of impertinence to defend yourself against unfair statements.
• If you have made a mistake and the judicial officer has taken delight into causing you to feel even more humiliation about it than you already do, please go easy on yourself. The judicial officer is suffering from what the writer calls SSMS, or, Sudden Short Memory Syndrome, where they suddenly cannot recall any of their early career mistakes and hold all lawyers to the same standard whether the lawyer has been admitted to practice for one week or twenty years. You don’t have to allow their SSMS to bring you down.
• De-brief with colleagues. It always helps to talk about the experience and your colleagues will no doubt have stories of their own to share.
• Do not go over and over the incident in your mind and wonder what you could have done to change it. You are never responsible for the behaviour of a judicial officer. Never!
• If it is a very serious case of judicial bullying, report the matter to the LIV or Vic Bar (whichever is your professional association) – they are able to take the matter on your behalf to the Heads of Jurisdiction.
• After work, go home and be extra kind to yourself. You have just been through an ordeal. Don’t just sweep it under the carpet. Process it by talking, writing or meditating but at the same time tell yourself quite explicitly that you are going to look after yourself now as you have been treated poorly and you deserve better.

Good luck!

I wish I knew… when to hang up

Claudia McGarva

By Claudia McGarva

When I started practising law, everyone refused to speak with a particular lawyer over the phone. This lawyer was known in the legal community as ‘the Pterodactyl’ due to her screeching at other lawyers. If she called the firm, all the assistants knew not to bother putting the call through to the lawyer responsible for that matter. They would politely say, “It is our policy that all communications are to be in writing”, and hang up.

I was shocked when I met this lawyer at court one day. She was pleasant enough. I think she even complimented my shoes. I didn’t understand why my firm had a ‘policy’ to deal with her. That was, until I had a matter against her.

She wasn’t just rude; she was abusive. She called my client a liar. She called me a liar. She said my correspondence was “bordering on unethical” because I had asked for some documents and included a deadline. She made continual threats. These ranged from making a complaint to the law society to seeking numerous personal cost orders against me. As a baby lawyer, I would be lying if I said I had Teflon skin. I was terrified of this woman. When I saw an email waiting for me the next morning from her, I would sweat. I would make sure every email and letter was immaculate and I wrote a transcript for every conversation I had with her. I would lie in bed thinking about the threats I had received from her that day, thinking I would lose my practising certificate before the ink was even dry. Whatever confidence I did have when I started practising was quickly evaporating.

That was, until I realised the threats stemmed from her insecurity. She was a generalist practitioner, did not specialise in that particular area of law and had only been practising in that field for about a year. She was also a sole practitioner. I was exclusively practising in that area of law and had access to experienced lawyers to advise and mentor along the way. The aggression was a mechanism to prove to her client that she was advocating strongly on their behalf and deafen her ineptitude. I am all for ‘faking it till you make it’; however, I had never seen a senior lawyer act this way. There is no need to. It doesn’t help your client and it doesn’t help you. It puts other lawyers off side and makes you feel more isolated in, what can be, a lonely industry.

Now, I do not engage with these practitioners when they carry on. Sometimes, I remind them of the legal profession rules (and very rarely, threaten to make my own justified complaint to the law society).  However, most of the time I now say “put it in writing” and hang up.

George Palmer

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Photo: ABC News (Courtesy of Dan White)

 

By Georgia Briggs

If you’re an avid ABC viewer, the name George Palmer might ring a bell. Mr Palmer has just debuted his opera based on the Tim Winton novel Cloudstreet. However for the last 40 years, George Palmer has also had an exemplary legal career, which included 10 years as a NSW Supreme Court Judge.

Proving that a strong legal mind doesn’t negate creativity, Mr Palmer has been composing music for various projects for almost 13 years. Music has been a lifelong passion. His musical projects have included a live to air performance of his work in Sydney’s Eugene Goossens Hall, and being asked to compose the music to be used during Pope Benedict XVI’s visit to Australia for World Youth Day in 2008.

Mr. Palmer graduated from the University of Sydney in 1970. He specialised in commercial law, becoming a partner at his firm within two years of graduation. Mr Palmer notably specialised in oil and mineral exploration law at a time when this market was quite new and becoming big in Australia. He was called to the Bar in 1974 and by 1986 was a Queen’s Counsel.

In 2001, Mr Palmer became a Supreme Court Judge, holding that office until his long passion for composing, particularly his own opera, became his overarching project. Mr Palmer studied music from childhood, composing dozens of works since his almost accidental discovery on the ABC network in 2003. The talented musician is also gradually going deaf, having lost all hearing in his right ear.

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.

 

It’s not all good, Saul Goodman

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Photo: AMC TV

 

By Stewart Osborne

Spoilers abound. You have been warned.

We first met James MacGill, better known as Saul Goodman, in Breaking Bad, and his origin story has been explored (as far as the foundations go, at least) in the first season of Better Call Saul. If the ‘flash forwards’ are anything to go by, “Slippin’ Jimmy” ends up in witness protection, no doubt due to his involvement with Walter White, among other parties.

Not since Lionel Hutz of The Simpsons has the archetype of a sleazy yet loveable, fast talking, proverbial (or in Hutz’ case, literal) ambulance-chasing flimflam man with questionable qualifications to practice law been pulled off so brilliantly, and full credit to Bob Odenkirk on his portrayal of the character. It’s hard not to like him. The bus stop ads, the shockingly direct green screen advertisements which put major names in Australian public liability practice to shame with their brazenness, are all directly lifted from the U.S. legal industry. That’s not to say aggressive advertising (quite typically accompanied by commensurate aggressive billing) doesn’t happen in Australia, but I’ve seen how U.S. attorneys not averse to debasing themselves just a little go about spruiking their services in horribly put together TV ads.

Saul is entertaining. And it’s just about there that anything good about him can be said.

Criminal lawyers, despite what Saul Goodman would have you believe, are not conduits for one criminal to engage with others, or matchmakers as far as existing criminal enterprises or startups go. Walter White’s capacity to ‘disappear’ is facilitated by professional criminal with whom Saul maintains at least some kind of a non-client relationship. Saul acts as a middleman between Walter White, as a clandestine illicit drug manufacturer, and Gus Fring, a man with an industrial plant specifically geared to the commercial production of methylamphetamine. During the scene in the hotel in which Walter buys himself a gun with an obliterated serial number in a dingy hotel room, we learn the gun dealer and Walter were introduced via ‘the lawyer’. The same goes for Mike Ehrmantraut; another referral from Saul to Walter. Quite the one stop shop for a budding criminal. Forget the moral reprehensibility. How about the illegality of conspiring to commit a plethora of serious criminal offences in which Saul effectively involves himself?

Then there’s the money laundering. The vast, vast quantities of money laundering. The utter saturation of Saul’s involvement in the schemes used to launder money on behalf of the Whites is breathtaking, from buying businesses to sending money to third parties through fictitious inheritances. The sheer scale and quantity might be enough to convince a naïve audience that this is actually part, to at least some miniscule degree, of a good criminal lawyer’s job. In reality, no, it isn’t, and being disbarred is going to be the least of your problems if this is something in which you contemplate engaging.

We see the evolution of Saul from attempting to make his way into corporate law, working (poorly) as a public defender before getting involved with gangsters after a failed attempt at staging a traffic accident for compensation, and presumably going on to become the Saul we know from Breaking Bad. The conspiracy to stage a traffic accident for compensation money with a couple of kids who end up wishing they hadn’t gone along for the ride is bad enough. Along the way, he later procures the burglary of a client’s home, because ultimately, this was, to his mind, in the client’s best interest (and fit the story arc nicely). Let’s be clear here, in case it was missed initially – he procured an aggravated burglary undertaken actively with Mike in order to steal a substantial sum of money, in order to apparently get his client the best possible outcome. The ends thus justifying the means, we can all sleep better at the end of the show.

Yeah, nah. That’s not how it goes. Real life’s not like that, and the way both shows go about normalizing a litany of offences which would be bad enough being committed by any member of the public, much less an officer of the court, is almost worrying. The ends will not justify the means, no matter how you try to package it; you will be held to a higher standard than that nebulous “’reasonable person’ if you find yourself in court on a conspiracy charge of some flavour or another, and who knows – if you seek to emulate Saul, you too may find yourself working in a shopping mall in another state using a fake name, probably after a stint in prison and penniless, if you’re lucky enough to escape the agitated clients with whom you’ve become too closely involved when (not if) it all goes wrong.