Australian legal system

The lawyer has often been plagued with numerous stereotypical faces, ranging from the rich arrogant smart-aleck, the humble hardworking underdog, to the desperate ambulance chaser. They have been portrayed as heroes who strictly adhere to the code of ethics in which they were schooled in, and usually right an injustice for the common man. They have also been depicted as the cunning and unscrupulous villains who will do anything within their power to cause harm to others. In reality, the lawyer is neither hero nor villain.

There are no surprise witnesses, no last minute evidence to present to the court and no flashes of inspiration that enables the lawyer to save the victim of an injustice who is standing before death's door as we regularly see on popular courtroom television dramas such as 'Law and Order' and 'The Practice'. The work that the lawyer performs within the legal framework is mainly not for the benefit of themselves; rather the lawyer is used as a medium to translate and reconstitute issues of the client in terms of a legal discourse that has trans-situational applicability (Roach Anleu, 2002).

Lawyers are also in a sense 'gatekeepers' to justice whom many turn to in hopes of seeking justice. "... the legal process is the means to deliver justice and the lawyer is the bearer of the metaphorical sword... who ensures that equity and fairness are distributed ... " (Greenfield & Osborn 1995 in Parker 1999) However, the self-regulatory nature of the legal profession shrouds the profession in mystery.

In addition, the complexity of legal terminology and procedures usually are beyond the layman's understanding these factors bring about questions of the reliability of lawyers when it comes to administering justice. To understand the role of the lawyer, one must first understand what is meant by the legal profession. There are several key attributes in defining a profession, Roach Anleu, 2002 points out 6 core defining characteristics that identify a profession.

They are: a formal education and entrance requirement; monopolization of esoteric knowledge and associated skills; autonomy over the terms and conditions of practice; collegial authority vested in a code of practice; a professional association and the commitment to a service ideal. The main school of thought when considering the legal community as a profession is the functionalist theory. The functionalist theory in relation to the legal profession argues that legal professionals serve the public good and provide a counterweight to the power of government and the capitalistic market (Sutton, 2001).

The three essential elements of a functionalist theory of the legal profession is firstly the public interest is best served when professions are autonomous from other centers of power because without autonomy, services would be degraded in two ways, either in the form of a disparity in the standard of service provided or in the case where the legal profession was merely a function of government, the quality of services would suffer as legal practitioners would be more loyal to their employers (Sutton, 2001).

Secondly, the legal profession would serve as an important form of community for all lawyers socializing members into a common identity based on shared expertise a moral orientation towards service (Sutton, 2001). Finally, the most important characteristic of the legal profession from a functionalist point of view is self regulation. The theory behind this is that the only people capable of judging the competence of legal professionals are other legal professionals (Sutton, 2001).

However, the functionalist view of the legal profession is only a utopian view lawyers in today's society. Criticisms in the way in which the legal profession operate are many, and it is true that there is a general dissatisfaction among the public on the quality of service in which they provide. Lawyers are often stuck in a predicament, on one hand we rely on them to ensure that justice is served upon wrongdoers, on the other we despise the way in which they are able to use the law against us. "...

we praise them for effectively following our whishes and using the law to articulate our perspectives, but condemn then for using the legal system to satisfy the desires of other clients... by purveying legality, lawyers regularly both implement and destroy people's notions of justice and community values" (Parker, 1999). It is from this in which we often lose sight of the fact that lawyers are present to facilitate and preserve justice in modern society, but not all criticisms are without base.

In reference to the above functionalist view of the legal profession, it should be noted that self regulation is an integral part of being a profession. This is form of self regulation is a double edge sword. It helps to govern the legal community by protecting clients who may not understand legal procedure thus looking after the client's best interest. Nevertheless, self regulation can also be a barrier to clients when it wishes to address dissatisfaction with the legal community, this especially more so when the issues expressed are not a high priority within in the legal community.

Criticisms of self regulation is that rather than creating homogeneity in the services offered, self regulation works more to shield incompetent legal practitioners rather than to eliminate them (Sutton 2001). Clients of lawyers usually complain when lawyers fail to treat clients with respect; do not consider the nature of interpersonal relations with clients to be an important part of law practice; appear to be motivated more by financial gains than professional values; are inaccessible and unresponsive; are poor communicators and show indifference to clients' feelings (Felstiner 1997 in Parker 1999).

The main concern of the public however, is not the number of complains against lawyers but the apparent lack of concern by the disciplinary bodies within the legal framework. Solicitors were usually punished by self regulatory bodies and tribunals for violations of accounts regulation, misappropriation of client funds, false statements in applying for a practicing certificate, criminal convictions, acting as a solicitor without holding a current practicing certificate and failing to account for monies (Abel 1998a in Parker 1999) this is in contrast to what clients complain about.

An example of this is in the area of trust account fraud, whereby almost all of the eighty-two solicitors struck off between 1968 and 1982 in New South Wales were in relation to trust account breeches, which only accounted for 2 percent of complaints to the Law Society (Weisbrot 1990 in Parker 1999).

It is evident that self regulation rarely works to protect the consumer compounded by the fact the consumer lack the knowledge to realize that they have been mistreated; rather self regulation serves more to ensure as a body to protect the legal profession from rouge legal practitioners who seek to impose on professional obligation towards colleagues that may give then a professional (especially an economic) advantage (Maley 1974 in Parker 1999). In response to these allegations and with increased public scrutiny of the legal profession, many states now appoint an ombudsman to regulate the legal community (Parker 1999).

The legal profession has also tried to monopolize large areas relating to law. By doing so, legal practitioners ensure that their member are somewhat immune to market pressures that tend to erode wages and working conditions. In addition, by monopolizing their work, legal practitioners are able to eliminate competition form non-legal sectors of society and at the same time raise the status of its members (Sutton 2001). According to Abel 1989 pp 20-24 in Sutton 2001, professional monopolies are created in two ways.

One of which is "social closure" whereby new entrants to a certain profession is bases on certain ascriptive criteria such as kinship, ethnicity excreta, the entrants may also be subjected to long and expensive ordeals that may discourage some form advancing. The other strategy in creating a professional monopoly according to Able is to defend a stable and exclusive "jurisdiction" over a given service and where possible, to extend that jurisdiction. The legal profession has tried to create a monopoly by exercising control in almost all aspects of becoming a lawyer and the practicing of law.

The legal profession controls entry into the profession by setting high standards of legal training and rising academic standards for admission into law schools (Sutton 2001). The legal profession also limits its numbers by administering a bar examination to those who have successfully completed their law degree. Although this form of control may not seem unusual today, it is surprising to note that these controls can be adjusted in response to changes in demand for lawyers.

During the 1920 there were about 20,000 students enrolled in various law schools and in its peak during the 1930s with about 45,000 students in the USA with a steady increase right until the First World War, however bar admissions have remained relatively constant around the 10,000 mark (Sutton 2001), it can be safe to presuppose that with the higher number of law students, admission to the bar would increase in proportion to the number of students but in fact the inverse occurs.

Jurisdictional claims by the legal community assert a monopoly can also be made in other arenas (Abbot 1988 in Roach Anelu 2002) the first being the legal system which can confer formal control of legal work through acts of Parliament (Roach Anelu 2002).