How Different Actual Practice of Law is from Law School - Essay Example

Workplace Journal The Young Lawyers Survey conducted in 2004 by the Law Council of Australia discovered that “almost half of the young lawyers indicated that they did not see themselves practicing law in five years time.*1” Moreover, an annual survey of the legal sector carried out by SEEK discovered that 55 percent of respondents were unhappy in their jobs.*2 Since the legal profession is now evolving into one of the highest paid professional occupations second only to the medical profession, my reflections upon my placement experience also extended towards the projection of my skills into actual practice. My placement experience helped me to realize how different actual practice of law is from law school. According to McDockery, “the study of law is different from the practice of law”*3 and he highlights the fact that apart from writing and research skills, not much of what is learned at law school will be particularly relevant in practice. My placement experience corroborated this claim, because I discovered that mere academic knowledge and the theory of law is not as important as interacting well with clients and professional code and ethics in actual practice. It was a revelation to me, as I watched my supervisor interacting with our clients and I realized that legal interviewing needs to be approached from a different angle as compared to other interviews.*4 The fact finding mission that this entails often meets with subtle resistance from clients and especially poses a challenge when dealing with clients who are not familiar with English, since there is a possibility for distortions during translation.*5 Such clients are often unaware that client privilege is their fundamental civil right as established by the Courts*6 and they are reluctant to be completely honest with their lawyers. But this was not the only area where I discovered that practice is different from theory. While law school provided me with the background of the law, actual practice concerns the application of the law. Earlier, my understanding of the law was directed towards its mechanics, whereas I obtained a clearer perspective of the law that conditions a lawyer’s actions during my placement experience. As Bernie Marden puts it, professions today operate in a world where “public policy applies regulation, co-regulation and self regulation in varying degrees”*7 and this is why it was deemed necessary to introduce the Professional Standards Act of 1994 in Australia. The profession of law has been tainted through common perceptions among the public about mercenary traits in lawyers and their lack of ethics and values*8 and I realized that armed though I was with the tools of law, the actual practice would entail facing up to and overcoming such unfavorable public perceptions about lawyers and their integrity. Moreover, I also realized that the expansion of liabilities under the tort of negligence in professional conduct*9 are likely to present complex challenges in actual practice. I discovered that in some ways, the study of law is as complex as philosophy, since the practice of law presents a challenge whereby sparsely available principles need to be applied within a wide variety of dissimilar situations, where clear precedents may not exist in the statutes and case law.*10 I attend CLE meetings on a regular basis and also use the CCH reference books, which has helped me to feel like an active participant rather than merely attending these sessions mechanically. The weekly department meetings have also helped me to move out of the purely academic sphere of law into its actual implementation, such as for example, our discussions about the new vendor duty in New South Wales*11 and the implications these are likely to produce for our clients, such as stamp duty, etc. While initially, many of the CLE meetings would go above my head as I did not understand many of the terms that were being used, my placement experience helped to make this a more rewarding process for me. Another aspect about practice that became clear to me through my placement experience is the fine line that exists between giving legal advice and financial advice. The “dominant” purpose of communications between client and lawyer in Australia has been established as the seeking or giving of legal advice.*12 This involves privilege, which I discovered to be a complex area of law, because the aspect of confidentiality of lawyer-client communications raises the issue of advice privilege vis a vis litigation privilege and in an areas such as property law, advice on property matters can often slip into advice on financial issues which may not be proper and ethical.*13 I realized that the confidentiality existing in lawyer client communications can often lead to clients soliciting financial advice, but from the perspective of ethical professional conduct, this is not acceptable and in practice, I would have to exercise discretion in client communications in order to refrain from overstepping the bounds of legal advice. The complexities inherent in maintaining the ethical dimensions of professional practice is one area which no amount of learning from books could have given me, but where my placement experience was very helpful and revelatory. By observing the interactions of my advisor and other legal professionals, I was able to gauge the unspoken and unwritten rules of professional conduct within the setting of property law.*14 I realized that in spite of the fact that privilege would render my communications with clients virtually impregnable, the professional code of ethics of the legal profession indicates that I should direct my clients to appropriate financial advisors in their best interests and not attempt to appropriate that role to myself, since as a paralegal, that would involve taking on work that is not in my area of expertise and would harm my reputation in the legal fraternity.*15 In general legal professionals are expected to adhere to standards of ethics that will not be derogatory to the profession itself and individual indiscretions will result in the professional legal fraternity calling for compliance with the unspoken rules of conduct that are motivated by the need to build a reputation based on integrity rather than the goal of profit maximization.*16 I was able to appreciate the practice of law and the tremendous opportunity it gives me to make a difference for myself and my clients as urged by Dimmerman and Adler,*17 especially when it is conditioned by professionalism in practice. Lillian Corbin describes professionalism as an organizing concept of “how lawyers are regulated and deliver legal services”*18. In Australia, an investigation conducted by the Trade Practices Commission discovered that the legal profession overregulated and in need of reform.*19 The Law Council of Australia has released its policy statements on reservation of legal work and multi disciplinary practices, which allows lawyers flexibility in choosing how they wish to practice so long as professional standards are maintained*20. Lillian Corbin clarifies that the stamp of professionalism is not necessarily granted through the possession of a law degree, but that the codes and conduct that are expected from a true professional are linked to honesty and integrity, and to advancing the cause of justice rather than achieving monetary gains.*21 I also realized the importance of maintaining the highest degree of personal integrity in my practice of law. Several law students in Australia are not being allowed to practice law after graduation due to cheating.*22 It is also important to be discreet and maintain client confidentiality by not indulging in loose talk about one’s cases, even if client identity will not be divulged, since the implication between the client attorney privilege is that all communications between a client and his/her lawyer are meant to remain confidential.*23 Through my placement experience, I realized how important personal integrity is, to advance the cause of justice and to remove the blot on the reputation of lawyers, perceived to be sharks out to leach money from clients. I am inspired by the exhortation of the Hon. Sir Daryl Dawson who emphasized the social trust element of a lawyer’s role*24. Chief Justice Gleeson recommends that existing ideas of professionalism which are based on ethical codes of conduct should be retained and in fact, others should also be encouraged to adhere to such ethical principles in conduct.*25 Professor Seligman in an article exploring the reasons why young lawyers are unhappy, believes that while pressure is irrevocably a part of law practice, it is not additional monetary benefits that can serve to re-inspire young lawyers, but a return to the grass roots of the profession and the need to serve people and the cause of justice through the practice of law.*26 This was one of the most important aspects that became clear to me during my placement experience. In today’s highly competitive and money driven scenario, coupled with the natural pessimism that lawyers need to maintain in their profession, it is vital that a lawyer should demonstrate a commitment to the community, especially through pro bono work, to affirm the original cause of justice, in service of which the legal profession was implemented. Pro bono work is the antithesis of mercenary goals; it means offering legal services free of cost or at reduced rates to the poor and economically disadvantaged sections of the population, and is vital under present day conditions.*27 During my placement experience, I realized that pro bono work is not only satisfying in a moral sense, but is also one of the best ways in which legal skills can be acquired through actual practice with real clients and the pressure to perform well is even more in the case of poor clients, since they are so dependent upon the lawyer to provide them the justice they so desperately need. Pro bono work also provides recognition, in the form of awards and merit listings, which contribute towards downplaying the unfavorable public perception of lawyers and their ilk.*28 In fact, David Kutik emphasizes the elevating aspect of pro bono work as follows: “Doing pro bono work connects us to people. We make the law and the justice system work for people who have nothing to give us but their gratitude.”*29 This has been one of the best aspects of my placement experience because it has provided me an opportunity to observe and interact with clients who are poor, yet can be served by the cause of justice to make the practice of law a truly rewarding experience. However, on an overall basis, it was the differences between what I learnt from my textbooks and what was actually involved in law practice which was the most revelatory in my placement experience. I agree with Mr. Dockery who states that most law schools don’t teach what it’s like to actually be a lawyer – “basic practice skills, negotiating skills, skills in handling clients and fellow lawyers….”*30 Law School does not teach us that our job is not to provide pat solutions for our clients based on precedents or statutes that magically fit the particular circumstances of each client’s case. During my placement experience, I learnt that we can only provide options to our clients, present the pros and cons and possible alternatives. It is then up to the clients to make their own decisions and professional conduct must be conditioned by the realization that it is the client who makes the decisions, while our job is only to provide the legal advice based upon our expertise. While law school provided me a vast plethora of law related material, it was during my placement experience that I was really able to consolidate the knowledge I had gained and apply it in actual practice. For example my research work at the CCH has unearthed the land Title Practice Manual and this invaluable resource has literally become my Bible, because it is such a treasure trove of knowledge that is practical and relevant from an application point of view. My experiences during my placement have provided me with the necessary practical knowledge that I need, as well as the realization that as a lawyer, I must be growing continually, keeping up with the latest developments and thinking critically, in order to be an effective professional. Through the facility of intelligent discussions and the applicability of legal principles, through an enhanced understanding of the principles of property law and its applications which I have gleaned through my interactions with legal professionals actively involved in practice, I have entered a world of challenge and opportunity, a world of reality, that has helped me to gain a clear understanding of actual practice in a real world situation as opposed to a classroom. The materials that have been available to me through the research facilities available to me, including the Land Title Practice Manual, have helped to consolidate my knowledge in my chosen field of specialization. The opportunity to evaluate and assess existing legislation as well as developing legislation and their impact on clients, especially in conjunction with other experts, has been a challenging and thrilling learning experience. My placement experience has helped me to develop my critical thinking and application skills into a realistic legal framework, which I believe will be very helpful to me when I actually start practicing. Bibliography * Australia dealing with cheating law students (2005). Law Path. [Online] Available at: http://www.emplawyernet.com/lawpath/1005.cfm; accessed 1/03/2005 * Chay AJ and Smith J. (1996). Legal Interviewing in practice. LBC Information Services, North Ryde * Comments of McDockery of the law firm of Jenkens and Gilchrist, Texas; available online at: http://www.lawcrossing.com/article/index.php?id=978 * Corbin, Lillian. (2001). Professionalism redefined: More than ethics. Alternative law Journal, 26(3) at 139 * Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) HCA 429, 7th November 2002. * Dimmerman, Harper J and Adler, Michael E (2005) What we never learned in law school . GP Solo Magazine, October/November. [Online] Available at:  http://www.abanet.org/genpractice/magazine/octnov2005/neverlearnedinls.html; accessed 1/2/2006. * Dawson, Hon Sir Daryl. (1996) The Legal Services Market 5 Journal of Judicial Administration, at 147 * Esso Australia resources Limited v Federal Commissioner of Taxation (2000) 168 ALR 123. * Gleeson, Murray. (1999) Are the professions worth keeping? Text of speech given at the Greek-Australian legal and medical Conference in 1999, available online at: http://www.hcourt.gov.au/speeches/cj/areprofe.htm * Hedley Byrne v Heller(1963) 2 All ER 575 * Kutik, David A (2005) Pro Bono: Why bother? GO Solo Magazine. October/November. [Online] Available at:  http://www.abanet.org/genpractice/magazine/octnov2005/probono.html; accessed 1/02/2006 * Lewis GD, Kyrou, EJ and Dinelli, AM (2004) Lewis and Kyrou’s Handy hints on legal practice , 3rd edition, at Chapter 9. Law Book Co * Manohan G. (2001). Essential professional conduct: Legal Ethics. Sydney: Cavendish Publishing * Marden, Bernie. (2001). Professional Standards Schemes – the Australian Model [Online] Available at: http://www.findlaw.com.au/articles/default.asp?task=read&id=5198&site=GN#eightfn; accessed 01/02/2006 * McConvill, James and Edney,Richard (2005). “How happiness can save the practice of law” Online Opinion. Available at: http://www.onlineopinion.com.au/view.asp?article=3437; accessed 12/28/2005 * New South Wales vendor duty. See http://www.freehills.com.au/publications/publications_1412.asp * Pearce, Russell. (1995). The Professionalism Paradigm shift: Why discarding professional ideology will improve the conduct and reputation of the bar. 70, New York University law review, at 1232-3. * Pivar, William H and Halan, Donald L (1995) Real estate ethics. Chicago: Real estate Education Company * Policies of the Law Council of Australia. Available online at: http://www.lawcouncil.asn.au; accessed 01/03/2006 * Recommended Action Plan for national coordination and development of pro bono legal services dated 14 June 2001 of the National Pro Bono task force; available online at: http://law.gov.au/aghome/commaff/flad/legal_aid/final report * Report of the Trade Practices Commission (1994) Study of the professions: legal, Summary of final report A at pp 3. * Robinson, Rudmilla (1994) Handbook for legal Interpreters. Law Book Co, North Ryde. * Ross Y (2001). Ethics in Law: Lawyers Responsibility and Accountability in Australia. 3rd end, Butterworths Australia * Seligman, Martin, Verkuil, Paul R and Kang, Terry, H ( ) Why lawyers are unhappy. Deakin law review Read More