The usual rule

Judges from the ranks of successful lawyers ... Poachers are warned not to turn gamekeepers ... Wolves in sheeps' clothing ... The usual (unusual) rule ... Judges propping-up the fees grab ... What lawyer said: "Frankly, the pursuit of money by the legal profession came to disgust me"? ... Tulkinghorn probes 

In 1969, in a book called  A Little Pattern of French Crime, Rayner Heppenstall made a comparison of the English and French systems: 

"It would be almost unthinkable in France that a barrister in old age should be rewarded with a High Court judgeship." 

Civil law countries generally do not "promote" lawyers into judges. In 2003 Chief Justice Murray Gleeson said:

"In countries with a civil law tradition, being a magistrate or judge is a career upon which lawyers ordinarily embark at the beginning of their professional lives, and in which they remain until the end. Young lawyers are trained to be judges, and they progress upon a career path within the judiciary. Judges rarely sit alone: they sit in panels, which often include some who, by our standards, are remarkably youthful... Judicial promotion is not the exception; it is the rule... In such countries, lawyers who intend to enter the practising profession undergo a different system of training, and, although in some places there are moves to recruit more judges from within the profession, practitioners rarely take up judicial office." 

Lawyer capture of judicial appointments had existed in France too, but it came to an end with the revolution of 1789.

US legal academics Daniel Klerman and Paul Mahoney said: 

"There were broad similarities between English and French justice from the late middle ages until the time of the French Revolution ... Judges in the higher courts were generally recruited from the ranks of the most eminent practicing lawyers ... The French judiciary ... lost prestige and independence in the wake of the French revolution ... Consistent with their diminished role, judges were treated as minor bureaucrats and paid and recruited accordingly ... Judges came to be recruited straight out of law school, given minor posts for training and evaluation, and then promoted according to bureaucratic principles." 

One problem with appointing judges from the ranks of the legal profession is that it imports the agenda of "successful" lawyers into the judiciary.

US law professor Sande L. Buhai of Loyola Law School said: 

"Judges need to unlearn the skills and values that made them good lawyers.

Judicial training should focus on reorienting judges from the practice of law to the practice of dispensing justice." 

Sturgess: disgustedThe practice of law (as far as financially successful lawyers are concerned) is all about making money.

In the Qweekend Magazine of October 8, 2011 iconic Queensland lawyer Des Sturgess said:

"Frankly, the pursuit of money by the legal profession ... the overcharging and charging for work that wasn't done and so on ... it came to disgust me. I retired early. I was only 60." 

Des Sturgess' barbs were aimed at both the civil and criminal jurisdictions. He said that the civil courts have become a beacon for avarice.

"In the civil jurisdiction, you'll just get touched ... Today, anybody who engages in civil litigation is either very stupid or very rich." 

Newly appointed judges vary in their propensity to support the overcharging and so on.

Bennett: warning poachers not to become gamekeepersIn 1997 David Bennett QC, then President NSW Bar Association, spoke at the swearing-in of Clifford Einstein QC as a judge of the Supreme Court of NSW. He said: 

"One phenomenon the bar has learned to live with is the barrister who, on elevation, becomes a true poacher turned gamekeeper, criticising the bar and dealing harshly with its rare minor foibles. We have high hopes that your Honour will not fall into this category." 

One suspects that gross overcharging is classed a "minor foible", and that true poachers turned gamekeepers are a lot rarer than judges who wail about high lawyers' fees, without actually doing much to fix the problems.

(In 2008 I discussed the tendency of judges to favour the interests of the practising profession.)   

If lawyers are to get away with overcharging, misleading and deceptive conduct, and so on, then having the judges on their side is extremely useful.

The Reader's Digest survey of professionals shows people trust judges more than lawyers.

Judges rank about 21 (which isn't particularly good) but lawyers are at 33. 

Angel (right): from chrysalis to butterflyIn his retirement speech in 2010 Justice David Angel of the Northern Territory Supreme Court said:

"People seem to overlook the fact that judges were once lawyers. It is indeed strange that where the chrysalis was so evil, the butterfly should be so immaculate." 

Not that 21 indicates a particularly high degree of immaculosity.

A recent publication from the AIJA - Bleak House Revisited? Disproportionality in Family Provision Estate Litigation in New South Wales and Victoria - indicates (to me) that judges are seeking to quietly exit from one particularly greedy practice, which they invented and have been operating for the benefit of their lawyer brethren for decades, if not centuries.

Basically, the judges created a "winner pays" costs discretion in relation to deceased estate litigation.

Natually it was not called that - it was instead called "the usual rule".

If the named beneficiaries in a will, for example, successfully fight off a claim against the estate by a disgruntled relative or whoever, then the estate can still be ordered to pay the costs of the losing relative or claimant.

This means in practice that the existing (winning) beneficiaries named in the will have to pay their own lawyers plus the costs of the lawyers of the (losing) claimants. 

In 2009 Justice Palmer of the NSW Supreme Court said: 

"That approach to family provision litigation, in effect, threw the whole burden of costs onto the beneficiaries of the estate. It promoted much wasteful litigation, it was not supported by authority ... and it should be recognised, once and for all, as thoroughly discredited." 

"Not supported by authority" means not supported by law. 

The AIJA report, after referring to the usual "loser pays" costs situation that applies in "normal" litigation, then said: 

"For a long time family provision was regarded as an area where different considerations applied, and where people could assume that the costs would come out of the estate. More recently there have been concerns that the assumption that costs will come out of the estate may also contribute to an over-eagerness to use litigation by would-be beneficiaries who feel that they carry little personal risk of paying the cost of the case because of the usual costs rules in this area." 

Sheep ... or wolfThe Machiavellian device of calling an unusual rule "the usual rule" has no doubt helped to keep beneficiaries in the dark.

In family provision litigation both lawyers and judges should all wear matching court regalia. 

This might help to alert litigants to the true nature of the proceedings.

Modest non-pretentious wigs and innocent sheepy gowns (to convey lack of guile) might do the trick. 

I'm not sure what to do about the nose, though.