A business or a profession: has the law lost its way?

No timesheets, no budgets and a more “humanitarian” approach to the law.

Issue 5

That’s the challenge Helen Mackay, the director of Wellington-based Juno Legal, has laid down for her profession. The law, she says, should be viewed as a vocation and a service, rather than a commercial and profit-oriented enterprise. As she sees it, people should come before profits.

“I think we need to move the focus of the legal profession away from being a high income-generating business and return to seeing it as a profession and a privilege,” Mackay says.

Her call has resonated with several senior practitioners, including top Queen’s Counsel Nigel Hampton and eminent legal academic Professor Warren Brookbands, who bemoan the profit-oriented culture evident in many Kiwi law firms.

Mackay herself is the daughter of a small-town lawyer, and grew up with the view of law as a vocation and a service.

“My Dad served his community doing mainly private client and elder law, in later years often on a pro bono or low bono basis,” she says.

Mackay would like to see a return to an era where there were no timesheets and no budgets.

“I have never had to time-write or account for every six-minute unit of my time and I have carried this into Juno as we work only on a fixed-fee or fixed-capacity basis,” she says.

“I think we need to return to that model. Juno has no financial targets and our team is paid for every hour it works.”

The firm frequently turns down work if it means overloading the team.

“We trust that if we build a great team, really look after our team and really look after our clients, there will be enough.”

That said, she understands why large law firms have relentlessly focused on profits and client satisfaction at the expense of their own employees.

“The post-GFC legal environment is challenging, and long hours and a focus on billable hours have become the norm for the profession.

“The in-house profession is also not immune from pressure as many in-house lawyers I know are also working long hours, juggling numerous responsibilities. The price of success for many is that even more work piles on from internal clients who want the comfort of knowing their lawyer is holding their hand.”

Mackay says stressed and unhappy lawyers regularly approach her firm, seeking to work in what they perceive as a more rewarding environment.

“We are highly selective and take only the best of the best so there are many we can’t help. But it gives me huge satisfaction when someone who was previously feeling burnt out tells me they are loving their work, and feeling and sleeping better.”

But to what extent are her views shared by others in the legal fraternity? And what, if anything, are they doing about it?

Eminent AUT legal academic Professor Warren Brookbanks, who entered the profession in 1971, says the firm where he initially worked was not strongly profit-focused.

“As far as I could tell, it was still very much of the ‘law as a vocation and service’ model Helen Mackay talks about,” Brookbanks says.

“However, I was aware of certain legendary legal practitioners reputed to be making vast amounts of money through real estate speculation.”

Brookbanks says the corporatisation of legal practice, as measured by the growth of mega law firms and their related strongly-commercial orientation, is the clearest indication of how law is driven by profits.

“Such firms do not necessarily constitute the bulk of practising lawyers and there are many smaller firms servicing the needs of poorer clients who do not share the profit mentality of the larger firms.

“But there is little doubt that working for the large corporate law firms comes at a price, especially for junior practitioners, in terms of expectations of billable hours, long working days, excessive performance demands of seniors, and pressure associated with bullying and harassment,” he says.

“The price is paid in high levels of stress, unreasonable pressure on primary relationships, and associated mental health issues.”

Brookbanks says many factors feed into this profitoriented culture.

“Partly it is opportunism associated with a growing economy, generating opportunities for legal input and expertise in traditional areas like conveyancing, estates and trust law.

“It may also reflect the growing demand for legal specialists in areas like commercial property development, environmental law, employment law, insolvency and takeovers, and in a multitude of other practice areas that generate the potential for substantial fees and sizeable profits.

“In some cases, it is driven by simple human greed.”

These sentiments are shared by leading QC Nigel Hampton who told LawNews that one of the reasons he left a law firm 30 years ago to practise as a barrister was the introduction of time-costing.

“I firmly believe that one of the greatest wrongs inflicted by the profession on itself was through the introduction of time-costing,” Hampton says.

“The ethos that a particular job or brief was worth only a particular fee, and not the claimed time spent, disappeared with such a time-costing approach, and not only has it disappeared but it cannot now be disinterred and revived.

“Along with the demise of that ethos - as a certain consequence of it, in my view - service to the ordinary citizen, to the community in which lawyers live, also withered and is virtually, if not actually, moribund.”

As a result of time-costing, Hampton says lawyers have taken legal services beyond the reach of ordinary people.

“Every minute must be accounted for, through artificial units and each such unit must be attributed to a client’s file.

The accounting/computing machinery then costs every such unit to that file and each such unit is billed to the client, usually in monthly bills, without due reflection on whether the resultant total fees charged when the task is complete will reflect the actual worth and value of the overall work done,” he says.

“And, seemingly as a necessary co-relation of time-costing, hourly rates for everyone, from the greenest devilling clerk to the most senior partners and barristers, keep escalating to dizzying levels. One must need prop up the other.”

Hampton says the legal profession now believes it knows the cost of everything it does but has lost sight of its value.

Asked whether many lawyers share Helen Mackay’s concerns, Hampton says, “I think there is a small minority, very small I suspect….but not enough to provoke the necessary tsunami swell, I’m afraid.”

Chapman Tripp Chief Executive Partner Nick Wells acknowledges all is not well in the profession, particularly around bullying and harassment, but says these issues are now being addressed as a result of inquiries such as Dame Margaret Bazley’s report.

“This has changed the people and culture approach of New Zealand’s legal profession with a strong focus on stamping out any potential forms of bullying and/or harassment.

“This is a good step forward. We all need to have the courage to call out anything that goes against our values.”

Wells believes law firms are now more focused on “balancing the needs of our people, our community and commercial interests”.

“Has the profession changed a lot since I joined? Of course, but my hopes as a lawyer and CEP haven’t changed. I am a strong supporter of giving forward.

“Are law firms only about financial returns? While we are a business, it is about growing and equipping the current and next generation of lawyers to make a positive difference to Aotearoa.”

At Chapman Tripp, making such a positive difference has included becoming the first law firm in New Zealand to establish a pro-bono committee that has now become a full corporate social responsibility programme, Wells says.

Chapman Tripp has also set up Te Waka Ture, a Maori services group. Wells himself is responsible for Auckland Law School’s iwi governance courses at undergraduate and Masters levels.

All of which should be welcome news for Helen Mackay.

To her it’s all about “flipping the focus”.

“I think of the elements of our firm as concentric circles. At the heart is our people – the 12 lawyers and our practice manager – and their happiness and wellbeing is my top priority.

“In the next circle are our clients, and keeping them happy and well-served is my next highest priority.

“In the furthest circle is the performance and success of Juno itself as a business and I pay very little attention to that. It seems the less we focus on profit and the more we try to give away and open source, the more clients we attract.”

And that’s a sentiment that reverberates with Professor Warren Brookbanks.

“The strongly adversarial and commercially-oriented focus of a significant sector of the legal profession will, no doubt, guarantee the preservation of strong commercial profit motives and associated values amongst a particular cohort of lawyers,” he says.

“Some of these would, no doubt, strongly reject the call for a more humanity-oriented legal profession, perhaps perceiving it as a ‘soft’ option.

“However, times are changing, and the certainties of the past associated with adversarial justice and litigation-based legal dispute resolution are not necessarily the way of the future.

“The emergence of interdisciplinary study tools like therapeutic jurisprudence and restorative justice, creative problem solving, non-adversarial processes in family law, solution-focused courts and trauma-informed judges suggests the existence of a wholly different approach to the practice of law that is very much in line with Helen’s vision.  

Issue 5 Brookbanks

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