Ask a lawyer… but which one?

Since I’m on holidays (again) the time gives me a chance to reflect and think about some of the broader things involved in being a lawyer. Often I report and explain the work which has happened during the past day or week; when no work is happening, I get to think a bit about how I came to be practising this most surprising (and rewarding) vocation of law.

Sometimes when I’m introduced to someone they ask what it is that I ‘do’. (I don’t really like the question: it often seems that it alters the attitude that follows. Am I really a different person, now I am a lawyer, than when I was receiving unemployment benefits some years ago? No. But I digress). After the initial question of what I ‘do’ is out of the way, people often then tell a story about an experience they’ve had with the law, and then ask my advice.

Well, there are a few problems with that.

First, I’m not getting paid! 🙂 It’s okay, you know that doesn’t really bother me and I’m a big believer in pro bono legal work. Actually I enjoy talking about the law; especially if it helps the person understand the legal system better. So money isn’t the problem.

It still usually isn’t appropriate to give actual legal advice in a social context. The advice can be misunderstood, it isn’t being recorded, and it usually isn’t confidential. In short, it’s a bad idea to give advice outside of work.

What I can and do do, though, is explain the broad areas of law and how they relate. This helps the person find a lawyer who will be able to assist in resolving their problem, as opposed to one who may perhaps be not really qualified in the area.

Some of the major areas of law are property, wills and estates, family, civil litigation, and crime. Within these there are further divisions: a for example, a criminal lawyer may practise in victims of crime assistance, or may work in defence of those accused of crime. There are times when this can cause a conflict of interest (more on that another time).

So this is the reason you might get a fairly blank look from your lawyer when you ask, during the drafting of documents for the sale of your house, whether your cousin who has just been charged with flying a kite to the annoyance of another person is likely to get a criminal record! The lawyer will most likely refer you to another practitioner in the same firm who specialises in that area. (There are still sole practitioners who more or less ‘cover the field’, but they are becoming less common.)

I think it’s helpful to know a bit about all the areas, which is why I’m presently running a few civil litigation files alongside my main work in criminal law. But I’ll never be a property law specialist, I’ll leave that to those who enjoy reading the fine print in mortgage documents (thanks John Grisham in The Street Lawyer for the quote)

In summary, if you need a lawyer, make sure you get the right one. Just because Dennis Denuto has a framed law degree on his wall, it doesn’t necessarily mean he’s qualified!

For the vision splendid-

The Outback Lawyer

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Reasons to weep: number one

(An unsuccessful application for bail)

 

When the two year old girl looks at her mother and says,

‘Daddy not come home for Christmas?’

Because dad will stay in gaol.


For the vision splendid-

The outback lawyer.

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Not so legal advice

Occasionally I have cause to say to a client something like, This is not legal advice, but…

Now I’m pretty sure that when we were at university such behaviour was warned against. We were not accountants. We were not taxation consultants, nor were we counselors or financial advisors, and so we were not to give information that was not strictly legal advice. It was sound advice, and certainly designed to prevent many young lawyers falling into all kinds of traps. And as one should with wise advice, I heed it well and generally confine my dealings with clients to giving legal advice within my expertise.

But then I broke the rules. I suggested to my client (off the record, of course, and certainly with the appropriate disclaimer that it was not legal advice) that perhaps court action was not the most helpful next step in their situation. My suggestion was that they make a time to have a cup of coffee with the person who they were going to take to court, and see if they couldn’t figure it out between themselves first.

Hopefully, I’ll never see them again.

Holidays

For the American readers, if you’re still there, translate vacation, (or if you’re English, maybe, ‘going away to the seaside’).

Like we all should do, I went on holidays last week and spent five or six days picking up rocks from the beach, spending an hour with a cup of coffee and a book while watching a small town wake up, and generally taking a long time to do almost nothing.

The late flight yesterday brought me back to work and to what some would call reality. Strange to say, I do miss it, and the tasks of the morning were enjoyable. I don’t think it’s an adrenaline junkie thrill-of-closing-the-big-deal sort of thing (because I’m not closing any big deals) but it was still satisfying to be back at work.

Having said that, when the firm does close for Christmas that will be satisfying too… I might go back to my little town, my newspaper and my long macchiato with milk on the side. (It’s ok, I don’t really ask for that. Not often, anyway. Actually, I’m just as happy with a well brewed plunger coffee.)

For the vision splendid-

The Outback Lawyer.

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Refugee policy, and police as lawmakers

First Thought

I haven’t made it all the way through Julian Burnside’s book Watching Brief yet, but in light of the recent boat tragedy at Christmas Island, I think that there must be changes to Australia’s policy on refugees arriving by boat. His book deals largely with the failings of the Howard government. A change in leadership doesn’t remove the problem, it just provides a new opportunity of dealing with it.

An interesting collection of laws

There lurks in the depths of our laws in Victoria a lovely piece of legislation called the Summary Offences Act 1966. It contains those classic types of laws which are reported in places like the ‘odd spot’ section of the local paper. Here are a few laws (which I urge you not to break) for your edification.

Section 4(d)

Any person who… in a public place:

(i) flies a kite; or

(ii) plays at a game

to the annoyance of any person… shall be guilty of an offence.

(perhaps we could report the entire Collingwood football team)

Section 8(c)

Anyone who drives a dog or goat harnessed or attached to a vehicle in or through a public place… shall be guilty of an offence.

Section 46

A person other than the owner shall not shoot kill wound or in any other way injure destroy ensnare catch or take a homing pigeon.

These provisions are perhaps a little outdated and not often used. The effect of the laws becomes interesting when we realise that parts of the same Act are still used frequently. Section 14 creates the offence of being drunk and disorderly in a public place, for example, and Section 49E prohibits the escape from lawful custody. Both these offences are relevant today.

Police discretion is inherently powerful in the criminal process. Unrepealed laws which repose unused in the depths of our legislation can be invoked to charge a person with an offence which society in general may not be aware of, and to which arguably, recent Parliaments have not turned their mind. Notice how the assessment of what is objectionable behaviour effectively moves from the legislature to the executive. Nobody is ever charged with playing a game to the annoyance of another person, but what if the enforcement agency for some reason wants to charge them with something? It might then be convenient to dust off an old law and bring the charge.

This can be good in some circumstances: a client of mine some time ago was charged with a serious offence, the client acknowledged the facts and wished to plead guilty, but the magistrate was of the view that the offence itself was not made out. The police then proceeded along exactly the lines I described above. A search was made through the Summary Offences Act for a convenient provision, and one was located. The charge was then brought, pleaded to, and sentence was passed. The reason for this story is simply to show how much power in the criminal process actually resides in areas other than Parliament- with lawyers, the police, magistrates and others.

I’m not drawing conclusions here, but raising questions. Just two brief examples from today of how this issue is important. The Israeli group Breaking the Silence released a new book on the Israeli Defence Force’s actions in Gaza; one of the claims is that the IDF failed to enforce laws against Israeli settlers (This is not an evaluation of those claims, but an illustration to make a point). Observe how the discretionary power which resides away from the legislature can be abused. When a law enforcement agency decides which laws to enforce, they become lawmakers. And again, the US government appears to be on a hunt for laws which might have been breached by Julian Assange. When a government decides which individuals to pursue and prosecute, that government is deciding what the people as a whole ought to decide.

Questions or comments? Please post them and I’ll give my thoughts. Contributing to the community’s understanding of law is part of what this blog is all about.

For the vision splendid-

The Outback Lawyer.

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Outback at the beach; defend the accused, & Julian Burnside QC

Sand, river, ocean, beach- ah it’s great to be back! I have a week off, starting today, in a very small cabin in a very small town near where I grew up. Hopefully it will give us some time to rest after the pace of the last three months.

Actually the town is not as small now as it was… I spent the morning today wandering through it and comparing the changes 1992 – 2010. It’s almost twenty years ago I used to catch the bus down with my surfboard, get told off (wrongly!) by the driver who thought I was wagging school, surf for a few hours and catch the bus back. There are lots of new shops, the pace seems a bit faster, but the beach is the same. Just beautiful.

Whilst it’s a break, I’ve found myself wondering about clients and work a bit already. Did I properly sort out that email I received? Was the advice to that other client complete? Should I ring work and check? I suppose such concerns are common to most people on holidays, and I’m no exception. By tomorrow I probably won’t be thinking about it at all.

Last week we had a plan ready to deal with appearance work in several courts across the state. We intended to drive to the first court where I would leave the senior lawyer and the practice manager, and continue alone another hundred k’s or so to the next court. As it turned out, the weather stopped us getting through. Severe flooding combined with a semi-trailer losing its load closed the road entirely, and the detour was unsealed- definitely 4WD only.

So I ended up at the first stop with the others and appearing in a matter which I had already briefed another lawyer to handle. It was satisfying; after several months of preparation work I took the defence to the final step of appearance, and we achieved a very good outcome.

Maybe this is a good point to address a common question society asks about defence lawyers. Before I get to the question I have a little story. A barrister friend appeared recently for a client who was charged with crimes which, in the eyes of many, were despicable. He was surrounded by hostile, angry and vocal people on his way out of the court. As they say, he ran the gauntlet. I found myself asking (though I knew) why this had happened.

The reason it happened, of course, is that some people do not understand what a good defence lawyer does. A good defence lawyer presents the client’s case. I don’t really think there is much more to it than that. My experience so far- and it’s limited, as you know- is that most lawyers advise their clients of the case against them, seek instructions from the client and act on those instructions. They simply assist the client by helping them navigate correctly through the law.

How does the community know if a person is guilty? Through the trial! There is no other test that I know of save the one we possess in the criminal trial. The judge doesn’t know. The defence lawyer doesn’t know. The prosecutor doesn’t know. And you can be sure the crowd outside who were mobbing my friend last week didn’t know.

It is difficult to see what alternative such protesters have in mind when they take the decision away from courts and into their loungerooms and pubs and offices. Are they are more impartial decision making body? Of course not. The courts provide the mechanism for a person accused of a crime to speak in their own defence- often, through a lawyer. It is a very important process, and while it is (and should be) subject to critique, it must also be allowed to function.

Of course, this doesn’t mean it’s easy for some of those involved. I understand that there is a lot of pain for victims and their families and friends during a criminal trial.  Friends of mine who are lawyers do a lot of work assisting victims of crime; this is another critical facet of the legal process.

Back to my holiday for a while- I picked up a copy of Julian Burnside QC’s book Watching Brief at the opp shop last week. Has anyone read it, what did you think? It looks great so far, and I plan to give some thoughts when I’ve finished.

For the vision splendid-

The Outback Lawyer.

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Working together

For those of you ( and you are many) who have been pleading, badgering, reminding and asking me to continue posting- here is a post.

Today was a big one. We spent the whole morning working on one matter in the Magistrates’ Court, trying to arrive at a solution which would best meet the needs of the client. When I say ‘we’ I mean all the court staff; police prosecutors, court clerk, informant, magistrate and myself as defence lawyer. We were all wrestling with some archaic legislation and trying to apply it to a case that was, at the very least, somewhat unique.

It almost felt like we were working in a civil law system, and to some extent, that is how the matter progressed. Put very simply, a civil law system is generally inquisitorial: the court looks into the matter, gathers from the parties the information it requires, and then makes an order. Our Australian common law system is adversarial. The prosecution bring their case, the defence answer, and the magistrate or judge makes a decision.

My endeavour this morning was to be a constructive defence advocate. My first duty (as that of any lawyer) is to assist the court, and my second is to represent my client. The outcome reflected this endeavour. The court arrived at an order which took account of my client’s submissions, whilst setting out realistic conditions to ensure the goal would be realised. In the event we were all working for the client’s best interests, and they were served.

As you can probably tell, I am treading fairly carefully in the wake of that one severe criticism I encountered a month or so ago. As to that matter, I have related the events to my employer, colleagues, other lawyers, friends and family, and received only support for The Outback Lawyer. Many readers have related to me how great a benefit the posts have been for their own understanding of the legal system. One particular follower described how reading had removed many negative connotations about the law in general, simply because the stories explained how and why the courts worked as they did. In that same week a County Court judge in a case I was working on made extensive remarks on how important it was that the community understand the operation of the courts.

I believe that stories like this do make a difference to the public perception of the legal system. They increase public faith in the law. And because of that I intend to risk criticism, and continue writing. Please let me know immediately if you consider anything I write to be unprofessional or inappropriate.

Alternatively, if you gain from reading, I’d like your comments too!

For the vision splendid-

The Outback Lawyer.

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Outbacklawyer returns

After a few weeks away, my journal has begun flowing again.

For those of you who never read the original stories, the first post is here in full, followed by the story of why the site has been out of action for a while.

*  *  *  *  *  *

Outback law begins

Tomorrow I begin the first day of my life practising law.

It’s been a difficult road in some respects, from learning the law of property with a six month old on my knee, through to sitting exams in a dingy reception centre in the middle of Brunswick. The vast amounts of coffee consumed were, quite probably, the key to my eventual success. I should name the Pelican Pantry cafe in Hastings as one of the greatest study environments of all time.

Although entitled Outback Law, it is somewhat of an exaggeration to claim that I am truly working in the ouback. My real claim is that the work is more than five hundred kilometres from Melbourne (or any other capital city, for that matter), and so there may be some contrast to the practice of law as it exists in the various chambers and offices which line William Street. I suppose we shall see.

My two children are sick and tonight promises to be difficult, and as to tomorrow, who knows? I hope to report back, in more or less a day’s time, at least something interesting and worthwhile.

For the vision splendid-

The Outback Lawyer

*  *  *  *  *  *

The original site was taken down because of a strong criticism of its content. Because that input came from someone whose experience I respect, I took some time to consider carefully that view.

I have been sharing gritty, real and challenging stories from country towns and courtrooms in rural Australia. I feel that there is real value in these stories being heard. As every journalist knows, writing is risky. The question for me has been: will I retreat into silence because there is some small risk in writing? And the answer I have come to is: I must not.

I think a lot of people struggle to understand the legal system. If they could understand it better, their experience of it might be more positive, and perhaps less painful. Courts are not usually pleasant places for people to be. I think it may be unanswered questions about the legal process which can sometimes cause the greatest difficulty. If this journal can continue to provide some frank insight into the workings of the law, then in my view, it has been worthwhile.

I will continue to be respectful in my writing. I will continue to represent my employers honestly. I will continue to maintain client confidentiality. But most of all, I will try to tell you my stories.

I am now a couple of months into the work here, and it’s going well. Today was a bit quiet; I had to fall back on preparing resource folders and researching obscure legislation to keep myself busy. However, the one client whom I did directly assist was grateful, and that is reward in itself.

Next week we start duty lawyer rosters again, so the quiet times will be no more. Often a lot of our ongoing work flows out of the matters that arise on these days. It’s a bit like the emergency department of a hospital: you never know what’s going to walk through the door! Hopefully there will be some good outcomes from our work.

Enjoy the weekend.

For the vision splendid-

The Outback Lawyer

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