Thoughts on the Role of Lawyers in Society
April 12 is International Be Kind to Your Lawyer Day: http://bekindtolawyers.com/our-story.html . The day was initiated by Steve Hughes, who as a non-lawyer, works closely with many lawyers whom he has come to know and deeply appreciate. Lawyers, in common with other professionals in society, offer a valuable service in many different ways and to groups at every level of society and in both public and private sectors. It is important to acknowledge and thank those who provide a high level of service upon which modern society depends. The day also provides an opportunity to reflect upon the role of lawyers in society.
Firstly, it is important to realise that lawyers play different roles, many of which are only seen by those who directly benefit from their services. While the drama of the courtroom is emphasized in film and novels, no less important and far more prolific are the many services provided out of the limelight, but upon which both business and government depend.
Secondly, it should be noted that the role of a lawyer varies among countries. Nations have different legal systems and the rights, obligations and duties of lawyers will vary according to the legal system of which lawyers are a part. Even among legal systems in the same family, the roles played by lawyers might differ. For example, in the US much insolvency work is done by lawyers. In Australia (also a common law country) such work is done primarily by the accounting profession. In Australia, some states divide lawyer’s work into those roles performed by a solicitor or a barrister. However, in the US there is only one legal category of legal practitioner, though in practice lawyers will specialise. In China, lawyers in the public sector have played key roles in drafting the legislation, rules, and regulations that have provided the regulatory infrastructure for China’s economic growth and development. Similarly, China’s e-commerce growth and development has been greatly facilitated by lawyers who have designed the legal framework which provides sufficient certainty and flexibility to give consumers, traders and the many organisations behind the scenes in making it all work.
Thirdly, it is important to realise that the role of a lawyer in almost every society is undergoing significant change. The nature of legal services, new cost structures, new models of legal service delivery, greater flexibility in working practices and many other factors are threatening significant disruption to the nature of legal practice—a point powerfully made by Richard and Daniel Susskind’s recent book on the Future of the Professions (Oxford University Press, 2016).
Fourthly, one should mention the vital role that lawyers often play in preserving, promoting and protecting the Rule of Law in society. Lawyers are masters of process and the democratic processes of government require a vigilant legal profession for their protection. History is replete with examples of lawyers bravely speaking truth to power, especially when that power has gone beyond the bounds of law.
Fifthly, lawyers also play an important role in promoting human rights and protection of the environment. This role is highlighted in the ‘Basic Principles on the Role of Lawyers Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990: http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx
Fifthly, excellent lawyers are effective communicators. Both in oral and written form they deploy language to draft detailed documents that enable transactions to be performed with confidence and clarity about who is to do what, by when, and under what circumstances. Such communication literally makes the world go round.
While Hollywood exalts in the battleground of the trial, the truth is that more often lawyers help to resolve disputes, the vast majority of which will settle out of court. As US President Abraham Lincoln urged:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Sixthly, it must be recognised that while we should all be kind to professionals with whom we work, this is not to say that all is well with the legal profession. The reality is that legal expenses, in contrast to most other business expenses, have remained high. Many people cannot afford a lawyer. The law also remains alien to many people who feel alienated by its strange language and high degree of formality. The legal profession and judiciary remain dominated by males from the elite classes of society and unrepresentative of society as a whole. The law is becoming further and further behind advances in technology and can be slow to change and thus becomes an obstacle in redressing many problems that confront society.
Seventhly, not only is the role of a lawyer often not understood, but many members of the public have a low regard for lawyers. Sadly, lawyers have done a poorer job than accountants, for example, in evidencing and advocating the ‘value-ad’d that they bring to their clients and society as a whole.
US Supreme Court Justice, Louis D. Brandeis, wrote: ‘If we desire respect for the law, we must first make the law respectable.’ At their best however, lawyers have played leading roles in bringing about much needed change in society. Examples are the role of law in ending slavery and racial discrimination, bringing about consumer protection and promoting justice and equality. In a world that is growing ever more complex and crowded and facing many problems, society more than ever before needs lawyers who can step-up and be proactive in designing solutions that enable us to move forward together as we work constructively and peacefully and in accordance with the Rule of Law.
Dr Eugene Clark is Dean and Professor of Law, Sydney City School of Law.
12th April 2016