Business versus law

This loss of humanity is especially concerning in the corporate counsel sphere, Mr Mark posited, especially when one reflects on the scandals that plagued the likes of HIH Insurance and AWB.

“All of these examples are situations in which in-house counsel became absorbed within their organisation, conformity bias wins out and they actually do things that they wouldn’t normally do, in terms of progressing their organisation rather than acting as a lawyer with the primary duty to the court and the ethics that they’re supposedly upholding,” Mr Mark said.

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“The concept of commercialisation of law, the concept of the ‘business versus profession’, is a huge problem in law today. And I think the business issue is winning out.”

Another issue, Mr Mark pointed out, is that BigLaw firms have business structures that more closely resemble those of their clients.

“So many law firms now have CEOs that come from the business world rather than law. So that, plus this whole concept of making money and having that being the primary role of a lawyer, the six-minute unit, the requirement of having certain amount of billings per month, etc, [are] putting pressure on lawyers which [have] mental health issues associated with it, of course, and [end] up being one of the biggest areas of complaint for the Office of the Legal Services Commissioner,” he mused.

“All of those issues are part and parcel of the fact that we've moved away from what [it is] we were supposed to be doing as lawyers upholding the rule of law being individuals that actually support ethical behavior rather than just compliance with law.”

Threats to the purpose of the rule of law

Looking more philosophically across the profession, Mr Sanders said “the rule of law is under threat” in that the profession and broader society have “attempted to codify behaviour in strong ways. [The study and practice of law used to be] an immersion in a process of consideration about what it means to be a human and ethical practitioner.”

It is problematic, Mr Mark observed, that the rule of is “being changed or challenged by the plethora of rules that are passed constantly because of social pressure”.

This is not to say, he stressed, that the passage of new legislation cannot be or is not a good thing. The implementation of laws for workplace gender equality, for example, is a “wonderful thing”, he said.

“I’m simply saying that lawyers have the role to be the crucibles of all information. Their clients come to them without information. They get their information from a lawyer and a lawyer should be a guide. But, unfortunately, lawyers can become compromised by their relationships, and indeed the more laws there are, the more challenged the lawyer might be about their own values in relation to those laws and how that might conflict with what they have to tell their clients,” he explained.

“That means that lawyers have to comply with the law rather than the conscious of society. But the law is not a conscience. Law is not human. Conscience comes from individuals. And we try to put our lawyers in positions where they don’t necessarily see themselves as individuals with values because ethics is really based on values not rules.”

The concept of compliance can be a “real damaging concept”, Mr Mark continued, “because it’s compliance with what? We don’t question the source of the compliance or the reason for the compliance, we just look at the compliance or requirement for compliance and follow it. And that can lead us into really dangerous waters.”

When asked if this will require greater deregulation, Mr Sanders responded: “I’m a big fan of better law in terms of how it’s constructed and how it drives the right behaviours. But we’re also talking about a re-engagement of young lawyers and new lawyers and, frankly, old lawyers with their obligations as human beings.”

How can the profession reclaim humanity?

When asked how best the profession can move the need back towards a greater focus on humanity, Mr Sanders said changes to professional services environment show some level of awareness of the need for this.

“The NewLaw environment can give rise, and does occasionally give rise, to the idea that different business models are not just about price or convenience or the idea that ‘I get to work from home’, but instead about the sort of work we want to do. It’s more about saying, ‘this is the sort of client we want to work with’,” he said.

Mentoring, Mr Sanders added, is going to be crucial across the board in ensuring that lawyers can retain such a connection to their professional purpose.

There are important questions lawyers need to ask themselves, he said: “What relationship do we have to each other? Where do you get mentoring, where do you get engaged with others? How do you test and consider ideas? How do you work with other people? Especially in a world of NewLaw, where people aren’t necessarily working in firms where they get that same sort of nourishment and support.”

“I think there’s enormous role and obligation, frankly, on the profession to find ways of having those conversations to build those networks. It’s not simply about CPD – it’s fundamentally got to be about how we connect as human beings,” he said.

There is also a crucial role for partners, general counsel and other leaders to ensure the individuals across the profession can retain their senses of humanity, Mr Sanders argued.

“I think they have a vital role. Lawyers are taught to dehumanise, to become more expert, more specialist, more technical. But, when you achieve partnership or seniority, it’s actually your humanity that becomes the valued part of you, because it’s the magic that you bring to that particular engagement, that is not always and only the technical, but the human,” he explained.

“That’s what ethical principles are fundamentally about. There is an absolute duty to both educate and change and influence others to those professional expectations, and I don’t know that we articulate that sufficiently.”

Proposed changes to legal education

Legal education, Mr Mark identified, must also do more exploration of the individual values of students so the emerging generation can appreciate how those values align with legal ethics.

Law school curriculums, he argued, “should be challenging students very early in the piece as to what the hell they’re doing studying law in the first place”.

“Because if they don’t know, if they only got the marks and they didn’t know what else to do and besides they hated the sight of blood, it’s not enough, and the reality is they’re going to go into a world where they have expectations placed on them by clients, by parents, by society generally.”

Law schools must, therefore, teach the importance of relationships and self-awareness, Mr Mark submitted.

“We need to have people understand that they are part of a system that creates the law as well as administers it. They need to be able to place themselves somewhere in society to understand what kind of lawyer they want to be. We need students to actually embrace those questions of morality and ethics and empower them to be able to deal with those complexities as they arise,” he said.

Optimism moving forward

Despite all this, Mr Sanders remains positive about the capacity of lawyers, and the profession, to be more human moving forward – and pointed to Australian cult movie classic The Castle to make his point.

“I am optimistic both about the legislation that supports the practice of law and the expectations of business, but also optimistic about people. I think that they want to have these conversations. I think people want to engage in that more deeply.”

“We valorise technical independence and cold objectification, however, while [Dennis Denuto] couldn’t explain any aspect of the constitution, the vibe was nonetheless important. And I think the vibe of the law, which is what attracts people to the law, is in fact the reason we should remain optimistic,” he concluded.

To listen to the full conversation with Deen Sanders OAM and Steve Mark AM, click below: