Independence
The first attribute of a good lawyer and judge that I will consider is independence. In this context, independence means being free of any loyalties, duties or interests that might inappropriately influence the performance of one’s functions.
Independence is important for lawyers because they are officers of the Court and have overriding duties to it. A lawyer’s retainer with a client, or a contract of employment with a law firm or a commercial organisation, cannot create obligations which constrain his or her ability to give frank legal advice or to conduct litigation ethically.
Independence is also important for establishing legal professional privilege. Accurate legal advice given by independent lawyers facilitates the administration of justice because it enables clients to order their affairs within the law. There have been a number of cases in which in-house lawyers have been held to lack independence because they were subject to too much control by their corporate managers and therefore their advice was not privileged. The concern is that if a lawyer is not independent of his or her client, the client may improperly influence the lawyer’s advice and thus impair the integrity of the advice and undermine the administration of justice.
Independence is essential in dealing with ethical issues. There have been a number of cases where lawyers have breached their ethical obligations by following the directions of their employer or law firm partner. Ethical obligations are personal to each lawyer and it is not a defence to a breach of such an obligation to show that a lawyer was complying with instructions from a superior. When confronted with an ethical issue, you must make your own assessment of what is appropriate. You can obtain advice if you are not sure of the legal position but you cannot simply adopt an unquestioning attitude to a superior’s instructions.
As a lawyer, you must be strong enough to say to a client or to a superior that you feel uncomfortable about complying with an instruction and would like an opportunity to consider the ethical implications. In such a situation, if a client or a superior insists that you act immediately and refuses to give you time to decide for yourself whether what you are being asked to do is ethical, you must refuse to comply. If that means that you may lose the client or your job, then so be it. It is better than losing your practising certificate.
An independent legal profession is also fundamental to democracy. As the right to practise law in Australia is conferred by the Court rather than by the government, lawyers cannot be pressured or manipulated by the government to support its policies and cannot be punished by it for not doing so. Provided lawyers act lawfully and ethically, the courts will protect them when they fearlessly defend the rights and interests of their clients and the community generally.
Independence is of the essence in judicial office. Constitutionally, the judiciary is the third arm of government and performs the key role of ensuring that the other arms of government, the Parliament and the executive, do not exceed or abuse their powers. The independence of judges is underpinned by their security of tenure and other constitutional guarantees. Unlike in some other countries, Australian judges cannot be removed from office simply because the government is not happy with their decisions. Independence enables judges to strike down invalid laws and to order the government to cease acting in an unlawful manner. Through a writ of habeas corpus, a judge can order that a person be released from unlawful detention. By standing between the state and its citizens, judges protect fundamental human rights and liberties. They can only do that if they are truly independent.
Upon his or her appointment, each judge of the Supreme Court of Queensland takes the following oath of office:
I … do sincerely promise and swear that … [a]s a judge of the Supreme Court of Queensland, I will at all times and in all things do equal justice to all persons and discharge the duties and responsibilities of the office according to law to the best of my knowledge and ability without fear favour or affection. So help me God!
The words ‘without fear favour or affection’ mean what they say. A judge must make decisions in accordance with the law irrespective of his or her personal preferences and without having regard to whether a decision will be unpopular with the government or will generate adverse publicity. Because judges are independent, powerful institutions such as the government, the media and large corporations know that they cannot influence judges through threats, intimidation or bribes. There are no backroom deals in the judicial system. All the processes are transparent and decisions are made according to law in open court. Parties that are unhappy with a judge’s decision cannot seek retribution against the judge. Their sole remedy is to appeal to a superior court which is also comprised of independent judges.
Impartiality
The next attribute is impartiality, which is closely aligned with independence. At first blush, it might be thought that impartiality is not relevant to lawyers because they have a duty to be loyal to their clients and to protect their clients’ interests. However, blind and unquestioning loyalty by a lawyer is not in his or her client’s interests. Those interests are best served by a lawyer who remains objective and at arm’s length from the client so that the advice that is provided is correct and not simply what the client wants to hear. A lawyer who is too close to a client and who loses his or her objectivity is more likely to exercise poor judgement.
A lawyer’s loyalty to a client must be subordinated to his or her duties to the Court, including the duty of candour and the duty not to abuse the Court’s processes. He or she must refuse to comply with a client’s instructions insofar as they are inconsistent with these duties.
Impartiality lies at the heart of the judicial role and is reflected in the oath of office. Everyone who comes before the courts must be treated equally regardless of whether they are wealthy and powerful or poor and marginalised. If a Minister of the Crown has infringed the law, a judge will make a finding accordingly and will not give the Minister any special treatment. If a judge were to compromise his or her decision-making so as to curry favour with the rich and powerful, or in order to receive positive media coverage, he or she would cease to be impartial and would seriously undermine the rule of law.
Communication skills
I will now discuss communication skills. Good communication skills may not be an attribute in the strict sense but they are certainly essential for a successful legal practice. They are vital because knowing the law and legal processes is insufficient if you are not able to communicate effectively with clients, other practitioners, court officials and other organisations that interact with the legal profession.
Clients do not know the legal learning that is in your head; they will determine whether you are a good lawyer who deserves their business on the basis of how you communicate with them both orally and in writing. If you cannot explain the law and legal processes to them in a way that they will understand, they will think that you do not know what you are talking about and will go elsewhere even if you have a first-class honours law degree hanging in your office. Likewise, if a barrister presents oral or written submissions in a confused and incoherent manner which the client, the instructing solicitor and the court do not understand, it is unlikely that he or she will receive repeat business or gain the respect of the court.
Good communication skills are also essential for judges. Judges are required to make rulings in the course of a trial and to give directions to witnesses and jurors. They must do so in a manner that can be quickly understood by those who must comply with the rulings and directions. In civil trials without juries and in appellate courts, judges must deliver written reasons for their decisions, often on complex factual and legal issues. The reasons must be clear and succinct so that the parties and other interested persons can understand them. If judges lack good communication skills, the administration of justice will suffer.
As a personal preference, I avoid using Latin phrases in my exchanges with counsel and in my judgments except for phrases that are legal terms of art with no English equivalent. My view is that clients sitting behind their lawyers and members of the public in court have a right to understand every word that is uttered in court. Also, imagine how a relative of a murder victim would feel when a court official announces that the court is adjourned sine die. I prefer to adjourn the court to a date to be fixed. Some US courts use the phrase: ‘Adjourned without date’.
Patience
The next attribute is patience. It is commonly said that patience is a virtue. It is also an important attribute for lawyers because the law and its processes are very complex and clients have difficulty understanding them. You must take time to explain them to clients in simple terms so that clients can make informed decisions. If you rush or cut corners, not only will you risk making clients unhappy and losing business, you might also be sued for negligence.
Patience is also important in professional communications. Clients and other practitioners sometimes send misleading or insulting letters and emails which cause immediate offence and anger. The temptation is to instantly dispatch a response. However, a hasty response written in anger may well inflame the situation and possibly give rise to a complaint of unprofessional conduct. Delay your response until you have calmed down and you are able prepare a reply that is brief and which explains the correct position in clear and non-emotional terms.
Judges also need to be patient, particularly when listening to evidence that is implausible or to submissions which are dubious. Natural justice requires that the parties be given a fair opportunity to present their cases before a decision is made. If a judge acts impetuously by expressing fixed views prematurely or by cutting off a party before its case is completed, an appellate court might order a new trial.
The patience of judges is often tested by self represented litigants who are unable or unwilling to comply with normal court processes and judicial directions. The best way for judges to manage a trial with a self represented litigant is to carefully explain the issues and each stage of the process in simple terms and to keep reminding the litigant of them every time he or she deviates.
Cultural awareness and tolerance
The next attribute is cultural awareness and tolerance. The cultural diversity in the Australian community is reflected in the client bases of law firms. Lawyers are best able to understand their clients’ legal problems if they know the cultural context in which they have arisen. Also, lawyers can avoid inadvertently offending and alienating their clients by learning the basic rules of etiquette that apply within particular cultural groups. A culturally insensitive or intolerant lawyer is destined to have a narrow client base.
Equality before the law is an important element of the rule of law. Every person who comes before the courts, whether as a party, a witness, a lawyer or a member of the public, must be treated with equal respect irrespective of how different they are or how unpopular their cause may be. Judges need to be culturally aware in order to avoid the performance of any of their functions being inappropriately influenced â whether consciously or unconsciously â by assumptions that are based on cultural stereotypes. If a judge is ignorant of the cultural dynamics that may affect the expressions that are used by a witness or the manner in which the witness gives evidence, the judge may misunderstand the evidence or make erroneous credit findings.
Courtesy
The next attribute is courtesy. This is not only an essential human quality but an important attribute in legal practice. Courtesy towards clients assists in gaining their trust and loyalty. Courtesy towards other practitioners helps make legal practice more pleasant and also facilitates negotiations and settlements. On the other hand, offensive behaviour causes misunderstandings, disputes, delay and frustration. Sometimes, it leads to complaints to the Legal Services Commission.
Regrettably, there seems to be a growing view in the profession that increased competition requires increased rudeness. As a judge, I see correspondence between solicitors and increasingly between barristers that is aggressive, self-serving and often directed at the person rather than the issue. This is not only inappropriate but also counterproductive. I can tell you that this type of correspondence is one of the biggest sources of annoyance for judges.
In correspondence with opponents, seek to persuade rather than to offend. If you receive offensive correspondence, do not respond in kind. If you do, you are no better than your opponent and both of you are bringing down professional standards. Instead, retain your composure and your focus. Respond to the substantive issues as succinctly as you can and ignore the rubbish. I can guarantee that if the correspondence ever reaches a judge, that is precisely what the judge will do. A judge will find more persuasive reasoned arguments stated in courteous language than personal attacks on an opponent that are laced with vitriol or sarcasm.
Practitioners should also be courteous in court. Barristers should not throw barbs at each other in an offensive or disruptive manner, shout at witnesses or seek to humiliate them. Courtesy is not incompatible with effective advocacy.
Courtesy has not always been associated with the judiciary. In past eras, some judges regarded aloofness and gruffness as adding to judicial authority and to the mystique of the office. Those days are gone. Everyone who comes before the courts is entitled to be treated with courtesy and respect. That includes self represented litigants, people suffering a mental illness and those who are accused of heinous crimes. There is no place for judicial bullying of litigants or their lawyers.
Judges should listen without interrupting except where this is necessary to clarify a point or to ensure there is order in the court. They should also refrain from making sarcastic or condescending comments. I believe that judicial courtesy bolsters the authority of the court rather than weakens it. I also believe that if judges treat people with respect, the community’s respect for the judiciary will improve. Community respect is fundamental to a strong and independent judiciary.
Compassion
The next attribute is compassion. Empathy towards clients, particularly in areas of practice with a strong emotional overlay, is a desirable quality. It puts clients at ease and gives them confidence that their lawyer understands them and will do his or her best for them. That is not to say, however, that compassion requires a lawyer to totally identify with a client. As I have already stated, a lawyer must retain his or her objectivity and independence.
The strong pro bono tradition in the legal profession is underpinned by compassion towards the disadvantaged and marginalised in the community.
In my opinion, compassion — or, more accurately, a sense of fairness — has an important place on the Bench. That does not mean that a judge should find in favour of a civil litigant because the judge feels sorry for him or her or should reduce an offender’s sentence based on subjective considerations. The law must be upheld and must be applied consistently in all cases.
However, judges are not computers that can be given particular inputs and then programmed to achieve an outcome which can be predicted with precision. Disputes involving laws that are so clear that they can be interpreted and applied precisely tend not to come before the courts. In many civil cases that come before the courts, the opposing positions are at least arguable. In clarifying ambiguities in the law there is often scope for a judge to adopt a common sense approach. Common sense and compassion often go hand in hand. If the law confers a discretion on the judge, there is often legitimate scope for the judge to achieve a result that is not only legally correct but is also in accordance with what is fair in the circumstances of the case.
Humility
The next attribute is humility. The simple point I want to make about this attribute is that a good lawyer is sensible enough to know when he or she is out of his or her depth and seeks advice and guidance from those who have more experience. A good lawyer also has in his or her vocabulary the words, ‘I do not know, but I will check’. It is better to be honest and admit that you do not know the answer to a question rather than guess the answer and get it wrong. A conceited lawyer who thinks he or she knows everything or pretends to do so will inevitably come unstuck. On the other hand a careful lawyer who knows his or her limitations is likely to make fewer mistakes and have a more sustainable practice.
Humility is also not out of place in the judiciary. Where judges are assisted by counsel in the course of a trial, it is appropriate to acknowledge this at that time or at the end of the trial. Likewise, where a judge is under a misapprehension in a case, it is not inappropriate to acknowledge the error and to thank the party that clarified the position. Such respect and cooperation strengthens relations between the profession and the Bench and instils a sense of confidence in the humanity and integrity of the legal system in the eyes of court users.
People skills
The next attribute is people skills. The success of a legal practice depends on the perception of its clients about the quality of its legal services and the manner in which they are delivered. A new lawyer with excellent technical legal skills cannot develop a successful legal practice if he or she treats clients with contempt.
A good manner with clients can complement good legal skills and can provide a secure base for a viable legal practice. A good manner with people is also important in a lawyer’s interaction with staff. Employees are usually more motivated and productive when they feel that they and their work are valued and appreciated. Also, if you are courteous and respectful towards other practitioners, it is likely that they will reciprocate.
Although judges do not have clients and their income is not affected by the perceptions of court users about how well they perform their functions, people skills are nevertheless important to them. Judges interact daily with lawyers, witnesses, jurors, members of the public and court staff. A judge with good people skills is better placed to manage trials efficiently and harmoniously than a judge without such skills.
Sense of perspective
The next attribute is a sense of perspective. By this I mean the ability to distinguish between what is important and what is not worth worrying about and to prioritise your time and energy accordingly. This attribute is critical for lawyers when they are under intense work pressure, when they make a mistake or when something goes wrong. In these situations, a lawyer without a sense of perspective may panic and become incapable of functioning properly. Worse still, he or she may do something that exacerbates the situation, such as covering up a mistake.
On the other hand, a lawyer with a sense of perspective who is confronted with a similar situation will remain calm and focus on finding a solution to the problem rather than being overwhelmed by it. With quiet reflection, the problem may not be as bad as it may have appeared and the solution may become readily apparent, particularly if advice is sought from a colleague who can assess the situation objectively.
A sense of perspective is also important for judges, particularly when presiding over a difficult trial. A trial may be difficult for a variety of reasons, such as the complexity or volume of the evidence and submissions, or misbehaviour by a party, a witness or even a legal practitioner. Self represented litigants, in particular, pose serious challenges for judges. Where these difficulties arise in a trial, the judge must remain calm and be able to promptly make rulings and give directions for the proper management of the trial. In assessing voluminous material and submissions, particularly where an urgent decision must be made, the judge must be able to quickly identify the material issues and put aside those that are immaterial.
A judge who is distracted by peripheral matters which do not have a bearing on the case or who self-indulgently discusses an irrelevant academic point can disrupt the flow of the case and waste precious court time.
Ability to cope with stress and willingness to seek assistance.
The next attribute is an ability to cope with stress and a willingness to seek assistance. The practice of law is a serious business with important obligations and responsibilities which can often cause stress. Stress can have a range of adverse consequences such as low morale, inefficiency and depression. Clients are usually good judges of character and can sense when a lawyer is happy and positive or glum and negative. Like most people, clients prefer to work with lawyers with a positive personality and outlook. If you are constantly irritable and in a bad mood, you will probably lose some of your clients and your practice will suffer.
In order to be successful and enjoy your work, you need to develop strategies to cope with stress. A balanced lifestyle, interests outside the law, a down to earth personality and supportive family, friends and mentors usually help. What you must not do is cut yourself off and suffer in silence or try to cope by engaging in harmful practices such as excessive alcohol consumption. You should not pretend there is no problem or be too proud to seek help. Without help, matters can sometimes spiral out of control.
These issues can also affect the judiciary. I have seen judges before whom it had always been a pleasure to appear become rude and short tempered during times of personal crises such as a divorce or a family tragedy. Judges must be able to separate their personal problems from their judicial functions. If they cannot do so and their work is affected, they must be willing to seek support from colleagues or to obtain professional help. The same applies where a judge is finding it difficult to cope with incessant exposure to cases involving exhibits depicting horrific injuries or other disturbing images.
Sense of humour
The final attribute is a sense of humour. A good sense of humour can increase a lawyer’s enjoyment of legal practice and a judge’s enjoyment of the judicial role. Although the courtroom is not the place for lawyers and judges to engage in hilarity, a good sense of humour and the other qualities that I have already mentioned can contribute to the happiness of lawyers and judges. They can assist in ensuring that the mood in a legal firm, in barristers’ chambers and in the courtroom is positive. This, in turn, can ensure that the legal practice and court hearings are conducted in an efficient and harmonious manner.
There are many other attributes that I can discuss, such as a respectful manner, decisiveness, a good work ethic, efficiency and good organisational skills. However, I would be here all night if I tried to cover them all. Perhaps I should mention an attribute that was highlighted by Chief Justice John Marshall of the US Supreme Court. He said: ‘The acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says.’
Let me conclude with a true story about one of my colleagues whom I will call Justice X. Like me, Justice X uses public transport. However, whereas my public transport card does not contain any identifying details, Justice X’s card contains his photograph and describes him as Justice X because he travels from the country. One day, a burly ticket inspector asked to see his card. Justice X proudly gave the inspector the card, expecting that the inspector would treat him with courtesy and respect once the inspector saw that he was a judge. The inspector looked at the card, then looked at Justice X and after looking at the card again said, ‘So, Justin, how are you today?’ So much for recognition and respect!
* An earlier version of this Oration was presented as a paper to the Australian Italian Lawyers Association in Melbourne on 7 March 2013. Modified versions of the paper were published in (2013) 23 Journal of Judicial Administration 130 and (2014) 88 Law Institute Journal 52.
