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Dal Pont, Gino --- "Profession vs business: What is pivotal?" [2020] PrecedentAULA 59; (2020) 160 Precedent 32

PROFESSION vs BUSINESS

WHAT IS PIVOTAL?

Professor Gino Dal Pont

Whether the legal profession retains the character of professionalism or has lost its mantra to the wiles of the market has been the subject of considerable debate and commentary. This article investigates core aspects of what are broadly understood as hallmarks of a profession – a commitment to public service, in particular – to probe how these cohabit with a business mindset.

LANGUAGE OF ‘PROFESSION’

The last 30 years or so have been characterised by a debate over the extent to which the practice of law has assumed a business-like focus, supposedly as distinct from its longstanding status as a profession.^[1] Business is often directed to maximising profit above all else, prompting some to view an unduly mercenary approach to legal practice as repugnant to concepts of professionalism. For instance, a judge of the United States Supreme Court has identified a ‘distinguishing feature’ of any profession, as distinct from ‘other occupations that may be equally respectable’, as that its ‘membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market’.^[2]

Yet notions of ‘profession’, ‘professional’ and ‘professionalism’ have over time not assumed common usage or understanding, despite their common emanation from the verb ‘profess’.

When we use the cognate term ‘professional’ nowadays, we often differentiate a person who is paid for his or her (often sporting) prowess from an amateur who engages in the same domain without hope of reward. Alternatively, we speak of a person who acts professionally, which conveys something about his or her attitude. From a 2005 University of Toledo syllabus for a geophysics unit, the following is described under the heading ‘professional attitude’:

‘[A] professional is punctual ... because he/she respects the valuable time of others; a professional follows the supervisor’s instructions; a professional in the field respects private and public property; a professional arrives ready to work, appropriately dressed, with his or her tools; a professional is observant and sees what needs to be done; a professional is responsible and does what should be done (carrying the instruments and tools, for example). A professional helps maintain a safe workplace with a civilized atmosphere. A professional is perceived as a representative of his or her organization and always acts in a manner that reflects favorably on that organization. A professional asks a question rather than risk making a serious mistake with an unfamiliar scientific instrument.’^[3]

While these supposed characteristics of professionalism are not entirely divorced from attitudes expected of lawyers, they do not primarily inform characterisations of law as a profession. Nor does the distinction between professional and amateur. And some query whether, absent an equivalent to a Hippocratic Oath, lawyers can necessarily be said to publicly ‘declare’ or ‘confess’ something.

ENTRY BARRIERS AND CONSEQUENCES

Instead, when speaking about law as a profession, what is ordinarily targeted is a series of factors that collectively justify a particular status.^[4] It refers to a paid occupation, entered upon prolonged training and a formal qualification. This is often described by reference to ‘special skill and learning’ as a threshold and barrier for admission, and a corresponding monopoly on the provision of services within that domain. Yet this characteristic is hardly unique to the legal profession, or to recognised professions generally; it can resonate in various endeavours that have long been branded as trades. Plumbers and electricians, for instance, pursue training (no shorter than a law degree) to secure qualifications that are necessary for their work.

Leaving to one side the fact that lawyers’ monopoly has diluted somewhat over time, a second factor that has long characterised a profession is self-regulation. This proceeds on the assumption that its members are well-positioned to determine membership and the relevant rules. Time has witnessed a significant incursion into self-regulation of the legal profession. While dedicated legislation has long regulated lawyers’ practice, the sheer scale and detail of the regulation found in modern legal profession statutes severely compromises the profession’s autonomy. It is sobering that this regulation far exceeds that imposed on, say, motor vehicle salespersons and real estate agents.

RESPONSIBILITY FOR PUBLIC SERVICE

The foregoing represents an incomplete picture of the accepted hallmarks of a profession. A critical balancing factor is a commitment to public service. This commitment is what partly justifies both the monopoly conferred upon members of the profession to provide services for reward within their realm of expertise, and the entitlement to self-regulation. In other words, scope for abuse of the monopoly position is tempered by a public service commitment, in turn justifying a light touch to external regulation. Some argue that invasions into lawyers’ monopoly, coupled with the gradual demise of self-regulation, are responses to a dwindling commitment to public service emanating from an increasingly business-like approach to legal practice. Whether such a supposed dwindling is a product of those two pressures or would have ensued independent of the level of commitment to public service, or indeed whether the public service commitment has truly receded, remain matters of debate.

Whatever the correct conclusion, it is apt to enquire into facets of modern legal practice that can substantiate a commitment to public service, and thereby de-emphasise the mercenary character alleged to infuse that practice. In common usage, the term ‘profess’ translates less to a special skill or learning than to a belief system underscoring that skill or learning. The litmus test for the legitimacy of a belief system is its conversion into actions consistent with that belief. Applied to the legal profession, it can be argued that lawyers profess to serve the public through the use and application of their special skill and learning.

Yet questions surrounding the alleged decline in public service ideals are not assisted by the fact that the notion of public service is prone to vagueness. There is arguably a difference between providing a service to the public and serving the public. Accommodating a fee-based service within the public service equation presents a challenge. The traditional notion of service is, for many, not remunerated or is at least subsidised. It attracts an almost ‘charity’ flavour, namely helping those in need or who are otherwise deserving driven by altruism rather than consequent financial reward.

Against this backdrop of voluntariness or altruism, some argue that professionalism compels a commitment to provide legal services pro bono.^[5] Lawyers’ virtual monopoly on legal work means that only they can properly service this need; in turn, so the argument goes, the profession is obliged to facilitate access to legal services by persons who cannot otherwise afford them. Australian judges have weighed in on the matter; it has been remarked that undertaking pro bono work is ‘in the best traditions of the legal profession’^[6] and ‘an important expression of the continuing acceptance of their social responsibilities by members of the legal profession’.^[7] While a commitment to serving the public can be shown through pro bono work, no jurisdiction compels it (though there are inducements). It may be queried whether pro bono work should lie at the core of public service in the context of lawyer professionalism.

PROMOTING ACCESS TO JUSTICE

It is difficult to argue against the proposition that the legal profession has a role to play when it comes to promoting access to justice. Such a role must be divorced, at least partly, from its financial interests in ensuring that as many as possible have access to legal services. Otherwise it may reflect no more than a mercenary exercise, thus feeding the criticism of the profession for losing its mantra. A commitment to promoting access to justice need not be mutually exclusive from a drive for concurrent personal benefit, should the two entirely equate. But it is likely to prove difficult, if not impossible, to isolate the component that substantiates a genuine commitment to public service. A former Chief Justice of the United States Supreme Court refers to the profession’s ‘special obligations to be energetic and imaginative in producing the best quality justice at the lowest possible costs for those who use it’.^[8] And while increased competition between legal service-providers can propel achievement of such a goal, it is largely external to any inherent public service ideal.

An illustration of a commitment to public service, driven in part by promoting more cost-effective access to the legal system, is the profession’s willingness to ‘unbundle’ legal services: to provide legal services only for a portion of the client’s overall legal needs in the relevant matter. While unbundling can surface in a variety of ways, in promoting access to justice its primary application is where a client is unable or unwilling to pay the cost of full legal representation. While this may suggest that the lawyer’s special skill and learning is not essential to every step of the client’s matter, few would maintain that, cost considerations aside, unbundled representation^[9] is preferable to full representation. However, it does represent a pragmatic response that facilitates access to justice.

CONTROLLING COSTS

There are structural features of the legal services environment that exhibit elements of public service. These are capable of acknowledging that a ‘user pays’ system does not itself undermine a public service mantra, as other barometers may substantiate that ideal. The primary ‘structural’ feature is the fiduciary environment enveloping lawyer-client relationships, as discussed below. It is not, however, exhaustive. For instance, judges have long exercised oversight vis-à-vis lawyer-client costs agreements,^[10] in a fashion without parallel to other service-providers. Predating statutory initiatives, courts assumed a jurisdiction over lawyers (commonly called the ‘inherent’ jurisdiction) enabling the regulation of charges by lawyers as officers of the court, and to prevent exorbitant demands. And where a client challenged the reasonableness of the sum claimed by his or her lawyer, courts assumed a jurisdiction (termed the ‘ordinary’ jurisdiction) to determine the amount by taxation or analogous proceedings even though taxation was not available under statute (usually due to the expiration of time).^[11] In any event, the entire process of taxation proceeded on the basis that a court could regulate costs by delegating this function within its auspices.

Although dedicated costs assessment (or taxation) regimes prescribed by statute and court rules nowadays leave little scope for the ‘inherent’ or ‘ordinary’ jurisdictions, these remain unique to the legal profession. And, as discussed below, so is the full force and spectrum of fiduciary responsibility. In each instance, these ‘structural’ features aim to ensure that a lawyer’s personal interest does not illegitimately prevail over a client’s (and thus, in a substantial way, the broader public’s) interest. They accordingly inform the public benefit commitment going to the core of professionalism.

AIMING TO SETTLE DISPUTES

Preceding an enquiry into fiduciary law’s impact, mention of lawyers’ commitment to settling disputes, sometimes phrased in terms of a duty to promote settlement, is merited. In an environment where to pursue litigation to its adjudication often best aligns with a lawyer’s financial interests, resolution of the vast bulk of disputes without a trial cannot be seen purely as a testament to client rationality. Reflecting what a NSW judge has described as lawyers’ ‘moderating influences’ in the interests of bringing clients closer to resolving their disputes,^[12] a significant contributing factor to settlement is the lawyer’s commitment to that other than his or her own financial interests. There remain lawyers who seem unable or reticent to exert those ‘moderating influences’. But in time, the increasingly pervasive notion of proportionality, coupled with an obligation on lawyers and others to promote the just, quick and cheap resolution of issues in dispute (as part of modern civil procedure reforms^[13] but in any event heralded at general law),^[14] these will hopefully be relegated more and more to the minority.

LOYALTY

As foreshadowed above, law is the only profession clearly acknowledged as subject to the full force of fiduciary responsibility. To this end, in staking a claim to public service, the application of fiduciary proscriptions to lawyer-client relations cannot be overlooked. The tension between an endeavour that provides a livelihood, especially one punctuated by barriers to entry, and a commitment to public service, lies at the core of the intersection between business and profession, as highlighted at the outset of this article. And it explains priority ordering via judicial expressions such as that in a profession: ‘[s]ervice is the ideal, and the earning of remuneration must always be subservient to this main purpose’^[15] and ‘the essential nature of practising a profession is closely linked to a partial monopoly, justified by education and public benefit, and involving a measure of altruism distinct from the drive for profit’.^[16]

While other aspects may temper lawyers’ selfish pursuits, fiduciary law stands as the prime doctrine directed at ‘service’ and ‘altruism’. The law proceeds on the assumption that the lawyer is, by virtue of his or her special skill and learning, in the dominant power position vis-à-vis the client within the parameters of the retainer. That the rise of the multi-national client has evened, or even upset, the scales in this regard has not translated to a real dilution of fiduciary responsibility, which accordingly provides a baseline irrespective of the form of practice (although it may bolster the prospect of informed client consent to a fiduciary conflict). It is this conflict, after all, to which fiduciary law is directed. The law dictates that a fiduciary (lawyer) must not engage in a dealing, transaction or matter where his or her own interests do or may conflict with those of the (putative) client. Attendant to this ‘no-conflict’ duty is the ‘no-profit’ duty, wherein a lawyer must not make an unauthorised profit from his or her engagement.

The core object served by the fiduciary proscriptions is loyalty, here by the lawyer to the client, in what can be described as ‘disinterested altruism’^[17] or otherwise as a curb on selfishness. The conflict proscription dictates that the financial interests of a lawyer cannot prevail over a duty owed to the client, and this includes the lawyer’s financial interests not only in dealing with the client, but in representing another client. Fiduciary law, to this end, functions to proscribe or eschew (at the pain of civil and professional sanction) private lawyer interest prevailing over a conflicting client interest. To the extent that the object of lawyers is to serve clients’ interests, this evidently dovetails into the relevant public whom, as professionals, lawyers are called to serve. Fiduciary law, functioning as a bulwark against illegitimate conflict when it comes to client interests, thus stands as an immobile reminder and indeed a fortification of the profession’s commitment to benefit other than itself. As a result, there is considerable confluence between the object(s) of fiduciary law and the altruism that many perceive as the core of public service. That the fiduciary proscriptions are triggered not merely by actual conflict, but by perceived conflict, bolsters the commitment to public service by being concerned with appearance, not just to the individual client, but to the public.

Bringing it back to the notion that being a professional means, at least partly, to ‘profess’ a belief, fiduciary law moreover gives colour to this profession. Lawyers can, unlike non-fiduciaries, legitimately market themselves – in counterbalancing the inequality between lawyer and client in skill and learning – as professing a belief, translating to practice subject to strict enforcement, in loyalty and unselfishness. To the extent that these can be seen as core ‘ethical’ values, they concurrently substantiate a commitment to ethical behaviour.

CONCLUSION

It cannot be denied that much of the preceding discussion on commitment to public service centres on obligations imposed upon lawyers (increasingly at the pain of sanction), whether by the general law or statute. While lawyers cannot be downplayed as contributors to the professional ‘public service’ ideal, they should not be seen as an exhaustive expression thereof. In an increasingly challenging and competitive legal market – where the number of lawyers per capita has risen disproportionately – the need for a commitment, at both a personal and collective level, to a genuine ‘profession’ intensifies.

Gino Dal Pont is a Professor in the Faculty of Law, University of Tasmania.

^[1] One of the seminal works in this context is A Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession, Harvard University Press, Cambridge, 1993.

^[2] Shapero v Kentucky Bar Association [1988] USSC 112; (1988) 486 US 466, 488 per O’Connor J.

^[3] University of Toledo, ‘Syllabus EEES 4610-071 – Introduction to Geophysics (WAC), EEES-001 5610 – Solid Earth Geophysics’ (2005) <www.eeescience.utoledo.edu/faculty/stierman/fall2005/4610/pa.htm>.

^[4] See, for example, E Greenwood, ‘Attributes of a profession’, Social Work, Vol. 2, No. 3, 1957, 44–55.

^[5] See, for example, L Sossin, ‘The public interest, professionalism, and pro bono publico’, Osgoode Hall Law Journal, Vol. 46, 2008, 147–54.

^[6] King v King [2012] QCA 81, [15] per Chesterman JA.

^[7] WAFI v Minister for Immigration [2002] FMCA 1, 79 [16] per Raphael FM.

^[8] W Burger, ‘The role of the law school in the teaching of legal ethics and professional responsibility’, Cleveland State Law Review, Vol. 29, 1980, 378–9.

^[9] ‘Unbundled representation’ occurs when a lawyer and client agree for the lawyer to undertake only part of the legal work involved, leaving the client to perform the remaining work (or to engage another cheaper lawyer to assist), thereby affording the client the opportunity to secure access to justice that he or she may otherwise have been unable to afford or unwilling to pay for.

^[10] See generally, G E Dal Pont, Law of Costs, 4th ed, LexisNexis Butterworths, Sydney, 2018, ch 3.

^[11] Ibid, 5.53–5.55.

^[12] Berjaya Group (Aust) Pty Ltd v Ariff [2007] NSWSC 174, [10] per Barrett J.

^[13] See, for example, Federal Court of Australia Act 1979 (Cth), s37M(1); Civil Procedure Act 2005 (NSW), s56(1); Civil Procedure Act 2010 (Vic), s7(1).

^[14] See, for example, A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189; [2009] VSCA 208, [15] per Redlich JA and Beach AJA.

^[15] Re Foster [1950] NSWStRp 2; (1950) 50 SR (NSW) 149, 151 per Street CJ.

^[16] Zhang v Hardas (No 2) [2018] NSWSC 432, [144] per Leeming JA.

^[17] P Birks, ‘The content of fiduciary obligation’, Israel Law Review, Vol. 34, 2000, 12–22.