The Critical Lawyer

by Phoebe Churches

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By this I don’t mean the senior partner you had during articles or clerkship or the Magistrate looking at you through semi-closed eyes during your very first appearance.*

I am talking about Critical Legal Theory in practice.

I came to the law after a lengthy stint in social work, working with some of the most vulnerable and disadvantaged in the community. Accordingly at law school – I was a bit of a fish out of water as a left, feminist, progressive type – and I really dreaded the impending requirement to complete core subjects such as Company Law.

When the first seminar of Company Law rolled around, I sat listlessly contemplating the weeks of boredom stretching out into eternity before me. The lecturer lost no time discussing the first piece of assessment. Ho hum. How would I wade through this miasma of…wait, what? A surprise. It was an essay, no, that’s not at all surprising – but the focus of the assignment was like a bolt literally out of LEFT field. The topic of that essay was: ‘It is often said the law is politics. This statement is applicable in corporate law as well. Explain and discuss this statement with particular reference to Australian case law and legislation’.

My paper read something along the lines of: it is an absolute legal fiction that the law is blind and it certainly does not operate in a social vacuum; on the contrary – the law works to preserve and entrench social and political inequality. So, one award winning Marxist analysis of the theory of the corporation and the doctrines of separate legal personality and limited liability later – my faith in the potential for the practice of law to be a tool for social change was restored. I was encouraged that I could perhaps become a happy lawyer, ducking the angst and depression so endemic in the field by making a meaningful contribution towards social justice.

So, how can working for social change make you happy? The practice of gratitude has been championed by the mindfulness movement for some time as a way to help bring happiness and balance into our lives. If you are looking for ways to keep perspective and feel gratitude, I recommend spending time with people who have had it much harder then you. Critical Legal Theory looks at strategies for getting the law to work towards social change and more socially just ends.

My journey was not a long one. I came from the community sector so I didn’t have a Road to Damascus moment. However my journey did go via the Critical Lawyers Handbook which must be a roundabout to Damascus St for many. In any event, regardless of what else I may do, I cannot foresee a time when my life will not be anchored by work in Community Legal Centres or not for profit services for the most vulnerable in our community such as the ASRC.

What will you do?

[*] The one who scratched red marks and annotations over every single word in your letter of advice or contract clause.

[†] I really did win the Company Law prize that year.

[‡] If you find this notion challenging or resonant and would like to explore further – here is a select reading list to get started: Hugh Collins, Marxism and Law (1984) and R.W. Connell, Ruling Class Ruling Culture – Studies of Conflict, Power and Hegemony in Australia Life (1977).

APRIL FOOL! There are some things bosses just shouldn’t joke about.

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This time last year a big New York-based law firm told employees it was instituting a new policy eliminating work emails during night and weekend hours… and then revealed the whole thing was a joke.

Now there are some things bosses really shouldn’t joke about.

To see what happened next – the whole story is here: http://time.com/money/3768766/april-fools-joke-work-emails-law-firm/

Law as a Healing Practice

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By Joel Orenstein

Buddhist imagery refers to compassion as being like one wing of a bird. She needs the other wing of wisdom in order to fly.

When I first decided to study an undergraduate law degree, I had made a very conscious decision, at the age of 26, to use law to strive to work for the benefit of others. At that time I had been working in refugee advocacy, and was in the fortunate position to be able to dedicate my energies to the study of a discipline that could be of assistance, on a very practical level, to those most in need.

After finishing my studies, whilst I saw others go down the traditional pathway in the law to the big firms, I never had any interest in such work. Instead I actively sort work in “poverty law” – entering the Community Legal Centre world by undertaking my articles year at Fitzroy legal Service before moving across to Victorian Aboriginal Legal Services and working in indigenous advocacy.

This was a time in my life defined by a very clear delineation in my mind between those worthy of fighting for, and the dominant power structures that needed fighting against. This dichotomy between good and evil was at the forefront of my world, and was also the backdrop of my values-based approach to lawyering that in some ways has stayed with me throughout.

During this time I sort to define myself by the type of work I did and the clients I worked for. I called myself an “activist lawyer” to distinguish myself from the self-serving and money-motivated lawyers that dominated popular culture. I identified myself with my peers working in the community sector and Legal Aid – underpaid, overworked, but righteous and proud, working for good.

You would think that working with the motivation to be of benefit to others would sustain a healthy and long career in the law. Unfortunately in my experience this is not the case, as I have witnessed many of my colleagues who have either dropped out, are miserable in their work or live with a high degree of conflict or dysfunction.

Why is it that so many of us, motivated to assist others, as not travelling so well? I know from my own case I nearly did not make it. Although perhaps outwardly my actions could have seemed compassionate and caring to others, inwardly I was terribly conflicted by righteous indignation, anger, burnout and an inflated sense of self. I would invest so much of myself in positive outcomes for clients and would suffer terribly with each tragedy or injustice that presented before me. The suffering seemed so cruel and unjustified, caused by fear and greed. I became angry with the world and those who did not share my view of it, and despairing of my inability to change it.

A decade on, and although I continue working for the same client groups dealing with much the same issues, coming up against the same power structures, somehow I have come to find peace in myself and in my work. Don’t get me wrong, I certainly have my off days, but generally I am able to find equanimity and joy in what I do. And I seem to be doing good work.

So what has changed? Over the years, with a developing wisdom, I have changed emphasis in the way that I work. Now I practice law consciously in a therapeutic way. Although I still have a certain legal outcome that I am working towards, there is an awareness of focus on the moment-to-moment process of working with clients and others within the judicial system. This involves an emphasis on mindful communication and presence, and at the same time recognising and acknowledging my own suffering and reactivity as they arise.

The result for me has been that I now work with greater balance. My prejudices have softened, relationships improved and I have much greater understanding of a positive way to facilitate change. I do not avoid conflict, and am much better able to judge when to stand strong or when to be conciliatory. Emotional awareness means that I recognise when I am heightened, angry, anxious or upset, and my emotional state does not have the same heaviness to direct my experience.

Generally therapeutic jurisprudence has looked at changing legal systems to facilitate therapeutic outcomes, as opposed to the looking at the way to work as a therapeutic lawyer within the system. My experience, however, has been that unless legal practitioners practice consciously in a therapeutic way, the prospect of therapeutic outcomes is greatly lessened.

Practicing law with motivation to work for others and instigate change without wisdom is like trying to fly with one wing. We must develop and practice insight and wisdom in the way we work, as otherwise we are bound to crash and burn.

This is moment to moment, and with practice, inevitably impacts in a positive way not only the outcomes of legal problems, but is also the source of great healing, both for others and oneself.

Her Honour, Magistrate Pauline Spencer

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When did you know that you wanted to be a lawyer?

I actually didn’t really know I wanted to a lawyer until I started working in a law firm. When I was finishing school I wanted to be a vet or a physiotherapist. It was the 80s (the time of power suits and the glamour of “LA Law”) and a stint of work experience with a vet confirmed I did not like blood, so I enrolled in Commerce/Law degree. Given the way law was taught back then, law school seemed so unconnected with real life. It was not until I got a part time job in a law firm doing personal injuries cases and started to meet with injured workers and their families that I realised the law could assist people. It was then that I decided I wanted to be a lawyer.

What attracts you most to the profession of law?
So at first it was helping individual people, then I worked on a few cases that had broader social implications and I was attracted to the law as a tool for broader systemic change. It was important though to build my skills as a lawyer. I think it was Justice Kirby who once said that if you want to use the law to make change then you have to be a good lawyer first and foremost.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?
I think I would be a lawyer again. I would love to go to law school now with the new focus on teaching social context and therapeutic jurisprudence. I do worry about the graduates coming out of law school now given how hard it is to find graduate positions and sustain a living in the industry.

What was the single moment, case or event that you feel defined you as a lawyer?
I can’t think of a single moment and I wonder whether this idea of the heroic lawyer with THE big case is healthy for lawyers. For me the types of moments that defined me as a lawyer were when I was able to show compassion to someone who needed my assistance. Maybe it’s these little moments that lawyers should celebrate more. They can happen every day if you choose to practice in that way.

If you could only give one bit of advice to new lawyers, what would it be?
Try to expose yourself to as a many experiences as possible before you decide which area of the law you want to focus on. The law is so diverse and it takes a while to find out what will excite and sustain you.

What is your best tip for maintaining sanity in the law?
It might be hard but try to find a job that you love where you feel you can make a difference. If you can’t find that job then try to make a difference outside of your day job e.g. volunteering at a community legal centre advice night.

What will the legal profession look like in twenty five years time?
Lawyers in all areas of the law will work in multi-disciplinary teams where the lawyer will work with social workers, financial counsellors, drug counsellors to deal not only with the legal problem but with the impacts of the law on the individual and the broader community. Their work will be informed by the law but also other disciplines like addiction medicine and behavioural science. Therapeutic jurisprudence, the maximisation of the therapeutic impacts of the design of the law, legal process and the roles of legal actors, will become part and parcel of how lawyers work.

Her Honour was appointed as a Magistrate with the Magistrates’ Court of Victoria in 2006. She currently sits at Dandenong Magistrates’ Court one of Victoria’s busiest mainstream courts. Her Honour previously worked in as a lawyer in private practice and in the community legal centre movement. Prior to her appointment, she was the Executive Officer of the Federation of Community Legal Centres, the peak body for over 50 community legal centres in Victoria. Her Honour has an interest in therapeutic jurisprudence; improved responses to family violence; and improving connections between the court and the community. She is a member of the Advisory Group for the International Therapeutic Jurisprudence in the Mainstream Project: www.mainstreamtj.wordpress.com

 

In Praise of Doing Nothing

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By Stephen Tang

With the late arrival of streaming video services to Australia (legally, at least), we never got to use the phrase “Netflix and chill” in its plain and ordinary meaning. The success of its transformation into a slightly creepy euphemism probably depended on its original innocence: the joy of passive entertainment and the joy of switching off by switching on.

For a time, “Netflix and chill” succinctly gave fresh expression to a certain kind of pleasure which I fear is on the verge of extinction: doing nothing. Well, not quite nothing, but a restorative retreat to a comfy state of rest.

We’re of course all different in what this looks like. It may be watching an entire season of a show (it’ll take 1 day and 22 hours if you want to catch up on all of Breaking Bad), re-reading a trashy novel, cooking up some comfort food, or planting tomatoes in the spring. It’s not necessarily about alone time either, although as an introvert that’s where I find myself most often.

Idle restoration could also be found in the familiar rhythm of a regular catch-up with old friends, or unrushed and agenda-less time with your partner. Those with higher baseline levels of activity might find their default rhythm in a familiar run or gym routine.

What’s in common is that returning to this state is something that comes so naturally, so effortlessly and so mindlessly. There’s nothing particularly novel, demanding or even memorable about the activity. Indeed, what can be an effortful act of choosing what to do vanishes altogether through habit and familiarity, or by having choices made for you. Time passes with languid ease, and we feel refreshed afterwards. Continue reading

Michael McGarvie

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What are your passions outside of the law?
Gardening, plant propagation, landscape design, cycling and renewable energy. I have just had 16 storage batteries and solar panels fitted to my home so the day’s sun comes out of the batteries at night.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?
Yes, definitely. I was talked out of Archaeology as a career by a wise Professor of Archaeology at Melbourne University when I wanted to switch after 2nd year Law. He said, Archaeology would not support a married life and a mortgage in the same way Law would! I stuck it out and loved every minute of being a solicitor for 23 years, and then a public sector CEO in courts and legal regulation for the last 9 years. Law offers so much human contact and community influence, allowing you to advise and assist people by generally knowing how to get things done.

What was the single moment, case or event that you feel defined you as a lawyer?
Winning a hard fought, impossibly difficult, but truly deserving case against the Commonwealth for a client. It was called the Australia Post case. My client was shot by the deranged gunman, Frank Vitkovic, during what became known as the Queen Street massacre in 1987. John Dyrac survived being shot in the neck and shoulder at point blank range by an M1 Carbine when he opened the door for the gunman. The floor was bullet-proof because Australia Post held $250,000 of collectable (and steal-able) stamps, but had ceased using the security equipment properly. It was a hard case to win because the law was ill-defined about whether an employer was liable for the movements of a madman with a gun, even if the employer planned for gun invasion in their workplace. The Supreme Court jury upheld the negligence action against the employer after a two week, highly publicised trial. This defined me because it involved me and my firm taking a big risk in a controversial case for a client who could never have personally afforded to bring it to court, and involved success in a case many people thought would fail.

If you could only give one bit of advice to new lawyers, what would it be?
Accept that whatever your experience, clients will give a lawyer a free gift of trust when first appointing them. That gift is yours to lose by a number of simple means: lying, misleading, fudging, over-promising, under-performing and the super-human complex. The super-human complex is feeling your client expects you to know and do everything for them. You need to reduce or change your client’s expectations about what you can and can’t do for them at the outset of the relationship. Don’t do legal work for clients that is beyond your knowledge and understanding. Refer or get help. Your client will respect you for doing this because they will see you are acting to protect their interests.

What makes a lawyer a great lawyer?
Knowing the importance of servicing and communicating with your client. Great “bedside manner” is valuable. Remaining humble and conscious of the community role every lawyer plays as an officer appointed by the Court, with a primary duty to the Court, but then to represent the interests of their client to the best of their training and ability.

What would you say are the hazards of this profession?
Conflicts of interest between clients’ interests and fee budgets. Stress and anxiety in the working life of a lawyer causing performance, conduct and health issues.

What are your hopes for our profession?
That it continues to meet its own very high standards of ethical conduct, trustworthiness and fairness. Also, that it shifts to a fully national uniform regulatory scheme.

Michael was appointed as the Commissioner and Board CEO in December 2009. Prior to this Michael was the CEO of the Supreme Court of Victoria for three years. He practised as a solicitor at Holding Redlich for 23 years where he specialised in personal injuries, civil litigation and dispute resolution. Michael is a Graduate of the Australian Institute of Company Directors and is also a graduate in strategic management of regulatory and enforcement agencies from the John Kennedy School of Government, Harvard.

Meet Katha, the burnt out publicist

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‘Switched on, driven and burnt out’

Eleanor Morrison plays the role of Katha in this year’s production of Maple & Vine.

Eleanor is a lawyer in the Disputes Team at Ashurst.

We’ve asked Eleanor a few questions to gain some greater insight into her background, reason for performing and what excites her about her role as Katha.

Is this your first BottledSnail production?

I was a member of the cast for BottledSnail’s production of Parade and a member of the production team for BottledSnail’s 12 Angry Men.

What drew you towards the BottledSnail community?

At first I thought the BottledSnail community might be a sort of sub-community of the legal industry where I could devote some time to an activity that was creative, but quite separate from my professional life in the law.  To the contrary, being involved with BottledSnail has shown me that there is a real depth of support in the legal community for people who want to be creative or try something new.  I’ve found that investing in an activity outside my normal work routine has actually made me feel more engaged with my existing “work world”.

Why did you choose to perform?

I like assisting in telling a story.  I was drawn to the story of Maple & Vine and wanted to be a part of telling the story to people in the legal community and provoking discussion.

As you are playing the role of Katha, if you could describe her in one word what would it be?

Relatable.  I don’t think Katha is always likeable but I think parts of her story will strike a chord with the audience.

What excites you about this role and what challenges does it bring?

The role excites me because I think Katha’s story is a vehicle for addressing some broader issues facing my generation and my generation in the legal industry.  I feel challenged by the material though.  Because it’s an important story to tell, there’s a bit riding on the execution!

The play explores a number of themes, what is the most important one for you?

Freedom and the idea that choice can be crippling.  If you grow up being told that you are special and you can do anything you want with your life, how can you be sure that you’ve chosen the best path?

Tickets can be found here: http://mapleandvine.bottledsnail.com/ and the details are: 2-5 December 2015 at 8:00pm, with a matinee on the 5 December 2015 at 2:00pm.

Lawyers of the world unite – trade unions and the legal profession

by Phoebe Churches

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Lawyers and Unions+

When I say ‘lawyers and trade unions’ in the same breath, you might immediately think of one of the big labour law firms. You know, the firms which have historically backed the union movement and focused on employment law – for other workers. Indeed that is an interesting history…but perhaps for another time. This time I want to talk about lawyers and trade union representation.

There is a great deal of commentary on the eternal work-life balance battle in the legal profession. Is it particularly bad for lawyers or are we lagging behind in this area?

It would be overstating it to say that the battle has been won in other fields, however the trade union movement has been collectivising and fighting on a number of fronts in the battle for work-life balance since early last century. Trade unions were originally started by workers to collectivise and create a stronger voice in the workplace to improve a range of conditions, not just for themselves, but also for other non-unionised workers.

When you think of our current struggle for work-life balance in the legal profession, you might also consider how life was for all workers before the 8-hour day, holiday and sick pay, superannuation, workers’ compensation and equal pay for equal work. Yes, that was your friendly trade union achieving all that.

So where is the lawyer’s union? There is a Finance Sector Union, a union for any number of other professionals – including engineers, pharmacists, airline pilots and scientists.

A bit of research uncovers that there once was a specialist union for lawyers employed in the public service at least – the Australian Government Lawyers Association which existed from 1974 – 1991, to eventually be subsumed by the CPSU, the Community & Public Sector Union. Now there is nothing.

So why is there no union for legal professionals in Australia? The Law Institute of Victoria and similar associations across the country fulfil some functions of a union – they have information on work-life balance on their website, which is great… but that’s it. If you work in the Community Legal Sector, you have the Federations of CLCs to provide collectivised advocacy and support for vital issues in the sector such as funding and promotion of the CLC model. There is no specific focus on the conditions of its workers, however.

There is also no body to campaign for private employers to improve their conditions and implement good work-life balance policies. There is no representation in enterprise bargaining to improve conditions and entitlements throughout the workplace. Yes, many legal professionals are self-employed, but so very many also work in large firms. So who is looking out for the vulnerable in these firms: those with family responsibilities, people with health problems and other issues which put them at a relative disadvantage?

Currently – that’s all up to the individual. At least at the moment. Unfortunately historically –  without collectivising – changes to these fundamental conditions in the workplace have not come easily (or at all).

In the UK this seems to be changing. There is a fledgling group setting up a Legal Workers’ Trade Union. They aim to ‘forge a unified profession and establish better working environments’ and ‘fight for fairness and equality across the industry’.

If that sounds like a good idea to you – maybe it’s time we collectivised and set one up here in Australia?

You have nothing to lose but your chains billable hours.

 

 

+A tip o’ the pen to Mr Dean R P Edwards for suggesting this topic

Lawyers’ Mental Health ‘a Life and Death Issue’

Victorian committee members with TJMF board members - Erandathie Jayakody, Max Paterson, Marie Jepson, Jacqui Pitt and Jeremy Hyman (Photo: Sagona Photography)

Victorian committee members with TJMF board members – Erandathie Jayakody, Max Paterson, Marie Jepson, Jacqui Pitt and Jeremy Hyman (Photo: Sagona Photography)

 

By Dean R P Edwards

The recently appointed Honourable Associate Justice Mary-Jane Ierodiaconou keynoted the Tristan Jepson Memorial Foundation’s annual lecture held at Monash Law Chambers last Tuesday, October 6, 2015.

TJMF co-founder Marie Jepson, Tristan’s mother, introduced her Honour to a packed room Tuesday night. Jepson also highlighted the Foundation’s mental health guidelines for the profession, saying the guidelines “provide a unique opportunity to leaders who want to leave a legacy and help to forge a new path”.

Her Honour spoke on the theme of “Inspiring Change: Creating a Positive Workplace”, drawing on her experience as a founding partner at law firm Justitia and, in particular, in encouraging lawyers to adopt an “ethics of care” in the workplace.

Her Honour said the legal profession had focused on individual resilience to date while “structural issues need addressing”. Continue reading

Music for the Soul: BottledSnail presents Habeas Corpus in ‘Scene and Heard: Choral Pop for Film’

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By Julia Larner

I was beginning to think being anything more than an appreciator of music wasn’t going to fit in with sensible, mortgage paying grown up life; that involvement in the performing arts was a childhood luxury that I once knew. I have Habeas Chorus to thank for helping me to keep music in my life and contributing to an ever important work-life balance.

Having chosen Law as a career path, I have spent the last four years caught up in textbooks, exams, volunteer experience, paid experience, more exams, networking, attending essential skill-building seminars, clerkships (or lack thereof) and then finally landing my first lawyer job. My ability to work a chromatic scale has well and truly transformed into touch-typing proficiency, and my memory of key signatures has become a repertoire of a growing legal vocabulary.

As a first-year lawyer in a busy and growing immigration law firm, work quickly became the absolute priority in my daily life. I’ve tried to work hard, within a culture of equally hardworking and inspiring young lawyers, to learn and earn my way into the profession. However, with the adjustment to often demanding hours and so much to take in, despite the warnings I found myself starting to cut out ‘luxuries’, including exercising, seeing friends, cooking, healthy eating, as well as playing music. As a result I started feeling tense and a little bit hollow.

In a dark cold month of winter 2015 I tentatively joined an inspired, diverse bunch of dedicated and similarly flat-out law professionals for Monday night rehearsals with BottledSnail Production’s newly formed choir, Habeas Chorus.

Throughout Habeas Chorus’ inaugural and subsequent term, a solid turnout of at least 20 of us have arrived at rehearsals to the welcome of a cheery coordinator, Emilia, and a bewilderingly energised conductor, Dan, whose enthusiasm for music and teaching is contagious. Very soon we are in the swing of belting out tunes in surprisingly beautiful harmony. Although for many of us sight reading is a little rusty, Dan makes it seem easy to re-learn. Currently we’re tackling a nostalgic bunch of classic pieces from films including The Blues Brothers, Moulin Rouge and The Lion King; a stark but enjoyable contrast to last term’s classical repertoire.

It only took the first rehearsal to remember the uplifting feeling of being warmed from the inside out, not only by my own hit and miss vocals, but the various voices of 20 or 30 others, rising and falling around me. Despite the everlasting winter and the ever present challenge of Monday-itis, whatever sort of day I’ve had I always relish rehearsals and end up singing all the way home.

I wonder if there’s anyone else out there who thinks like me and wants to bring music back into their lives? I would recommend it to anyone, come along to Habeas Chorus and remember why music is good for the soul!

Julia Larner is a lawyer at Carina Ford Immigration Lawyers.

BottledSnail Productions presents Habeas Chorus in Scene and Heard: Choral Pop for Film starting at 8:00pm on Friday 9 October at the New Ballroom at Trades Hall. Tickets are on sale now at http://www.bottledsnail.com/habeaschorus.

If you’d like to join Habeas Chorus please go to http://www.bottledsnail.com/habeaschorus to register your interest.