Pandora's box cannot be shut

Systematic judicial bias in favour of the legal profession ... Prof. Benjamin Barton's latest sally ... Ordinary citizens see what's going on ... Lawyers don't ... Accountants sent to jail for doing the same thing lawyers do with impunity ... Tulkinghorn flings down some burning oil

In October 2007 Professor Benjamin Barton of the University of Tennessee published an article entitled Do Judges Systematically Favor the Interests of the Legal Profession?

He focussed on six US legal situations, which pretty much apply in Australia too.

In these situations, judges favour the legal profession: lawyer self-regulation, attorney-client privilege, lawyer advertising, the right to a lawyer in criminal cases, non-competition agreements between lawyers, and lawyer malpractice claims.

In June 2008 Barton published another article: Judges, Lawyers, and a Predictive Theory of Legal Complexity.

It says that judges favour lawyers by making the law more complex.

Pandora's box - just before it openedBut why stop there? Now that the Pandora's box of lawyer self-interest shaping our legal system has been opened, it is not going to be possible to shut it again.

Too many examples of judges favouring the profession have escaped into public view. Rather, it is going to remain open, while countless more examples fly out.

Lawyer/judge bias exists throughout our legal system on a far grander scale than outlined in those two articles.

For example, one could take the view that our entire GETGO criminal justice system owes its existence to lawyer/judge bias, delivering a criminal justice system that serves lawyer self-interest more than the public interest.

Similarly, vast chunks of civil law appear to be dedicated to making business for lawyers and judges, usually by prescribing complex procedural rules or by creating legal environments that favour various categories of plaintiffs over deep pockets defendants.

Lawyers and judges do not take kindly to legislative efforts to reduce the length of these various legal gravy trains. For example, in 2006 Damien Carrick said on Radio National's The Law Report:

"I remember at one point Philip Ruddock, when he was Immigration minister, saying something along the lines of 'Even when [migration] legislation is amended the Federal Court judges are always going to try to deal themselves back into the review game."

Retiring Federal Court judge Ron Merkel replied:

"I think that really it's a very unfair and unwarranted way of looking at judicial administration of the Migration Act."

Reynolds interviewing Prof. BartonThis year Barton launched a book that further advances the study of judicial bias in favour of the legal profession. It is called Bias! The Case Against Lawyers and Judges, and it is published by the respected Cambridge University Press.

Barton was interviewed about the book on PJTV by Glenn Reynolds on 27 January. 

You can see the interview here and here.

At the beginning of the interview Reynolds said to Barton:

"Your thesis is basically that judges tend to side instinctively with lawyers and the legal profession and they tend to rule in ways that make the law more complex and benefit lawyers."

Barton replied:

"When you speak to regular people who are not lawyers or judges they find this patently obvious and they're pleased that I have a bunch of examples of it when I've taken the time to gather them but it is not surprising to them that this would occur... When you speak to lawyers, some law professors and judges, however, whoa, hey, you must have misunderstood something, maybe you didn't get the memo, this isn't how things work."

Ron Merkel: this isn't how things workRetired judge Merkel would probably nod sagely and agree.

Barton implies in the interview that while the public suspects lawyer motives, it assumes that judges are unbiased in their decisions - despite considerations of public choice theory.

"Well ... one thing that's actually sort of funny about it is that mostly people do not have a favourable impression of lawyers, but their impression of judges and the judiciary is much, much better than that. In all of the polls judges poll 20 or 30 points in terms of favourability ahead of lawyers, which is a little bit odd, right, because virtually all judges are former lawyers. You would think there would be some bleed over between those two ... but there is a built-in bias just among people in general that judges are not self-interested, that judges are choosing each case and applying the law to it very simply, and that these forms of biases don't happen."

Lawyer/judge bias leads ultimately to the "system" shunting accountants off to jail for doing stuff lawyers do all the time, with impunity.

Towards the end of his book Barton examines the Enron saga, making it quite clear that lawyers were just as culpable as the accountants. In the TV interview Barton said:

"Because the accountants get in trouble they go out of business ... some go to jail ... of course the people at Enron. But who basically skates away with almost no penalty is the lawyers. A bunch of people at [the accountants] Arthur Anderson and at Enron are serving prison or facing criminal charges and yet the two main law firms that worked for Enron and the in-house people and the lawyers at Arthur Anderson who were very complicit in all of the things that went on - all of them basically skated. The law firms paid a small, depending on how you look at it, they paid ... a lot less that they earned from Enron back in penalty, which is small, and none of them got disbarred, none of them spent any time in jail, basically they paid a fine and moved on."

Ken Parish: Barwick assaulted the tax lawsTax law is another area in which lawyers and judges have long conducted wars against legislatures, to further their own self interest. 

As legal academic Ken Parish has recently written:

"The tax avoidance industry boomed in Australia in the late 1970s as a direct result of the work of the Barwick High Court."

He described the court's activities as an "assault on tax laws".

Up until now tax lawyers have only lightly suggested that judicial assaults on tax laws have been motivated by the legal profession's self-interest. This may be about to change.

Dan Mitchell is a US expert on tax law. He has written an article entitled Tax Lawyers, Tax Complexity, and the Broader Problem of a Self-Serving Legal Profession. 

He said:

"Part of me has always wondered whether lawyers deliberately or subconsciously make the system complex because it serves their interests... There's now an interesting book that takes a broader look at this issue, analyzing the extent to which the legal profession looks out for its own self interest... I freely confess that I'm looking at this issue solely through my narrow prism of tax policy. But since Barton's thesis meshes with my observations that tax lawyers benefit from a corrupt tax system, I'm sympathetic to the notion that the problem is much broader."

In a piece for the Washington Examiner Reynolds recounts how ...

"Barton tells me that his thesis gets two very different reactions depending on the audience: Non-lawyers find it painfully obvious, while most lawyers and legal academics find it shocking and offensive." 

But not as offensive, perhaps, as clients being told by our High Court that barristers are necessarily immune from liability for negligence.