James Farmer

Legal Commentary

Pro Bono Publico as an Aid to Living a Balanced Lifestyle

Wednesday, November 08, 2017
It is some considerable time since I have written a piece for what was referred to by senior counsel in the High Court in Wellington recently as “Jim Farmer’s blog”.  This was cited by him, in presenting the appeal by NZME and Fairfax against the Commerce Commission’s refusal to allow a merger of those companies on public benefit grounds, as being an example of the many sources (other than his clients) through which the “news” can be obtained.  If this assertion is true, then my apologies to the New Zealand public for being deprived of the news for so long.

So I do want to say something now about pro bono work by lawyers.  I am prompted to do so because I was invited to attend a lunchtime seminar at Bankside Chambers that was organised by Alan Sorrell.  More about him below.  I understand that it was the newly admitted barristers who have obtained employment at Bankside who were particularly interested in the subject.  The more senior barristers who were at the seminar in turn recounted some of the pro bono work that they do.  It is clear that barristers (indeed all lawyers) are motivated to assist needy people to obtain access to the courts by, on occasion at least, providing their legal services for free or at greatly reduced rates.

A number of things occurred to me, listening to the discussion.  The first is that lawyers do accept a professional obligation, based on a long tradition by lawyers around the world, of service to the public, to uphold the Rule of Law and to further public causes.  Many students leaving school are motivated to undertake a law degree to be participants in that tradition.

In this respect, I found fascinating the reaction by young American lawyers to Harper Lee’s sequel “Go Set a Watchman” (published in 2015) to her famous “To Kill a Mockingbird” published in 1960.  In Mockingbird, a local white lawyer, Atticus Finch, defended a poor black man accused of rape of a white woman in the Deep South at a time of serious oppression of Afro-American people in the United States.  Atticus was seen as an inspiration to young liberal-minded people and many said that they were inspired to become lawyers because of his example.  In the sequel, however, it was revealed that Finch had attended a private meeting of the Ku Klux Klan and had expressed views that racial equality reform should be slow. This led to many expressions of outrage and betrayal by those who had so admired Finch, including one lawyer who said she would never have named her cat Catticus if she had known of Finch’s true character.  It has also spurred a revisit to Mockingbird, with serious critical writers suggesting that Gregory Peck’s brilliant portrayal of Atticus in the movie version (for which he received the Academy Award) has served to conceal the hints of Finch’s racism in the original book. 

Let’s not forget that this is a novel!  Even in novels, however, lawyers are expected to attain high moral standards.

Returning to the subject of pro bono, the second point I would make is that at the heart of the legal professional tradition is service.  Service to clients who, yes, normally pay for that service but in many cases, particularly in the area of dispute resolution (civil and criminal) are in dire need, in circumstances where they lack the knowledge and skills to be able on their own to achieve a satisfactory outcome.  A very senior barrister contemplating retirement (not me) was asked what charitable works he intended to do once he had retired.  His answer was to the effect that his entire legal career of half a century had been spent serving clients, more often than not having to work long hours to sort out their problems and he did not feel a need to follow that with “good works” in his retirement.

That reminded me of the tribute paid to a Supreme Court Judge at his retirement ceremony by the Chief Justice that, in becoming a Judge, he had chosen public service unlike (she said) other senior barristers who chose to stay at the Bar.  With great respect, I would dare to suggest that lawyers serving clients (whether they pay or not) are also performing a public service, particularly when there is added to that the pro bono work including work done by lawyers for the community in one form or another (see further below).  Judges too are paid for the public service that they perform. While there are some lawyers who earn considerably more than a Judge even if there is added to the Judge’s remuneration superannuation, generous holidays and sabbatical leave as well as a lack of overhead costs, I doubt that the average income of practising lawyers is as much as the judicial remuneration package.  Yes, Judges undoubtedly perform an important public service but so too do practising lawyers.

The form of public service is just different, that’s all.

What then is pro bono work?    Generally it is regarded as being work of a legal nature for which either no fee or a significantly reduced fee is charged.  The latter may take the form of abandoning the hourly rate and charging a fixed fee that is commensurate to the amount at stake in the litigation.  Saying that distracts me into repeating one of my obsessions, namely that the mindless application of the hourly rate has contributed to the problems of access to Justice and the fee should always be proportionate to the amount in dispute.  It used to be called “swings and roundabouts”.  So my view is that legal work is only properly categorised as pro bono if no fee is charged or if the fee is one that is below a proper fee.  Charging a fee based entirely on an hourly rate which brings the total fee close to the amount in dispute (or exceeds it) is not a proper fee.

At the Bankside seminar, the question was raised as to whether the work that lawyers do which is of a non-legal nature but which is done for various kinds of community bodies or organisations – for example, school boards, sports bodies, cultural organisations, charitable bodies of one kind and another - should be regarded as pro bono work.  My answer to that is a definite Yes.   Lawyers normally will not be doing legal work for those bodies but nevertheless they are applying their legal skills and experience to the benefit of those bodies.

As an outstanding example (there are of course many others), I would go back to Alan Sorrell who, among other things, has variously served as chairman of the New Zealand Film Commission (and led trade delegations to Asia and chaired the Organising Committee of the Asia-Pacific Film Festival), was appointed by the Government also to the Arts Board of Creative New Zealand, was on the board of Auckland Film Studio, has held various posts in Auckland Tennis (President) and Tennis New Zealand (board member), has served on the Council of the New Zealand Bar Association and been for many years on the Faculty of the New Zealand Law Society Litigation Skills course.

To me, these kinds of activities also feed into my oft-stated cry for lawyers to seek to live a more balanced life style and not to allow themselves to be totally absorbed by the pressures of client work and to be intimidated by the culture of work for its own sake.

Another example is that of Russell McVeagh partners and staff solicitors spending time helping the children of an Auckland primary school with their school work.

In furtherance of the balanced life style theme and if I may be excused for doing so, I would in this respect like to share the following email which was passed on to me by Kim Francis who teaches the appellate advocacy course at Auckland University and who had suggested the class might benefit from reading my pieces (raves) on the need for lawyers (and young lawyers in particular) to pursue other activities outside their work:

"Jim Farmer QC’s article particularly resonated with me because I had divested myself of most of the non-law things I enjoyed.  (To be fair, when I was in banking, I divested myself of all non-banking things too.)   I think there is a misconception amongst young professionals that to be an expert at something, it has to be the only thing you do.  So if you’re not doing that specific thing, you’re wasting time you can otherwise spend improving your skills.  This logic prevails because of peer pressure and sometimes from work-buddies/immediate mentors too.  It is dangerous and can lead to bad outcomes (health wise, relationship wise) in the long run.  Jim’s thoughts on balance and ‘physical exercise taking priority over work’, plus his views on lawyers going to the independent bar to reclaim balance spoke to me.  It is a timely reminder that to do ‘superhuman’ things you first need to be ‘human’.  I shall be kind to myself.”   [Publication authorised on the basis of anonymity being preserved.]

Now to finish with something completely different.  The degree of its importance is something that will attract differing opinions.

The Supreme Court has announced that its Judges will no longer wear the traditional English red robes and full-bottomed wigs but instead will wear new patterned silk and cotton gowns “to reflect New Zealand traditions and history and aspirations with which the Court was established by Parliament in 2004”.  They are said to feature “a stylised kauri cone and leaves in the black on black weave, to represent the country of New Zealand and the shelter of the law” and “embroidered shoulder wings [featuring] the three baskets of knowledge of Maori tradition set in fern fronds, representing the common law method which is to work with knowledge of the past and an eye to the knowledge of the future, while adding insights of the present when responding to the needs and questions of today”.  Truly!  See the link below for the full statement and a picture of the gown:

https://www.courtsofnz.govt.nz/publications/copy_of_announcements/Nrmr.pdf 

The new gowns were designed by Wellington artist Ros Bignell but the break from English tradition is not complete as it is said that the gown is the same design as that now used in the ceremonial dress of the judges of the United Kingdom Supreme Court.

One of my initial reactions to the announcement of the new gowns, which appeared on its face to be limited to  Supreme Court Judges, was concern for our Court of Appeal and High Court Judges being left behind in the English common law tradition and not able to share in “New Zealand’s traditions and history and aspirations”.   However, fortunately, when accosting a High Court Judge on Shortland Street (in my capacity as a journalist), I was informed that High Court and Court of Appeal Judges will also have the same gowns, though several months later than the Supreme Court Judges who will be wearing them this week to the opening of Parliament.  The Judge would however neither confirm nor deny the rumour that the number of baskets of knowledge on the embroidered shoulder wings will vary as follows: Supreme Court Judge (3 baskets); Court of Appeal Judge (2 baskets); High Court Judge (1 basket).

Who would be an Associate Judge?

The design and fitout costs of this innovation have not been disclosed, perhaps because of a slight uneasiness about public expenditure on such non-essential items at a time so soon after a General Election in which the plight of the homeless and the less advantaged in New Zealand society featured rather largely.  In the United Kingdom the introduction of the new ceremonial gowns for their Supreme Court Judges in 2009 at a cost of 140,000 pounds attracted comment that “taxpayers facing cuts in frontline services are not going to have much time for the Supreme Court splashing out on fripperies” (Daily Mail, 13 December 2009).

That may be a bit harsh.  My supervising Professor at Cambridge, Meredith Jackson (Downing Professor of English law) had little time for what he regarded as the pretences of the Bar (he had been a solicitor) but he did confess to me when talking one day about academic regalia: “We all like to dress up”.

Jim Farmer

7 November 2017


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