Graduate lawyers are being forced to sink or swim – sometimes with devastating consequences.
Tom was barely six months into his graduate year at a mid-tier law firm in Sydney when his senior partner called one Sunday night, telling Tom he would need to appear in court – alone – the next morning. He would be charging the time out to the client at the partner’s rate, and the partner’s name would remain on the court list. The only time Tom had been to court previously was for his admission ceremony a few months prior.
“I had never done a mention before,” says Tom, who won’t give his second name in case the firm identifies him. “I stayed up all night trying to figure out what to say and how to say it. When I rocked up to court I was sweating through my suit and first on the list to appear. The gaggle of older lawyers behind me were all having a good chuckle. The registrar was getting frustrated because I clearly had no idea what I was doing.”
Tom stayed at the Sydney firm for a year before getting “fed up” and leaving to work for an international firm in Melbourne. He says such appalling lack of guidance from senior lawyers was a daily part of his graduate experience. Partners and senior associates would lump him with legal tasks he had never done before, then refuse to spare any billable units to instruct him or answer his questions about the work. “Look it up on the internet” was their most common response.
“They assumed that LexisNexis and Austlii would have an answer for everything,” says Tom. “Often, I’d get lambasted for not having looked hard enough. So I’d go away and do some research on a topic, then the partner would yell at me for charging too many hours on research. It was a no-win situation.”
A wider problem
A 2006 survey of more than 300 lawyers who graduated from the University of Newcastle law school, published in 2008 in the Legal Education Review, found that young lawyers were more likely to receive professional support from a colleague (74 per cent) than a supervisor (58 per cent) or a mentor (41 per cent). One telling response published in the survey’s findings said, “Initially, the level of supervision was inadequate, and I don’t think I realised how inadequate [it was] but I certainly do now … I was mainly getting advice from the secretary.”
Tom agrees that his graduate experience was by no means unique. Stories shared over Friday drinks with peers from other firms have confirmed that. And every one of the lawyers interviewed for this story recount similar tales of being sent unprepared and petrified to court within their first few months of admission.
“It wasn’t just a bad way to learn,” says Tom. “It was bloody terrifying.”
In April, newspaper headlines issued an ominous warning to senior lawyers around Australia. Sydney firm Atanaskovic Hartnell (AH), known for its high-profile clients including Coca Cola, James Hardie and Westfield, had been dragged into a multi-million-dollar fraud case for “failing to supervise” one of their lawyers. That lawyer was Brody Clarke and it was alleged he stole almost $10 million from the firm’s high-profile client and CEO of WIN Corporation, media mogul Bruce Gordon. Clarke was a senior associate at the time.
Plenty of lawyers were gobsmacked by the boldness and extent of the alleged fraud. But just as many have been left squirming at the thought of the hefty negligence claim that now threatens the firm.
A Sydney lawyer who once worked with Clarke at AH says it’s “absolutely possible” for similar frauds to go unnoticed in other firms lacking supervision.
“The Clarke case is an extreme example,” says the lawyer, who feared backlash from his former employer and will be referred to by the alias James. “In this case, the amount of money was huge. But all it would take to commit a smaller-scale fraud is for a lawyer to give their personal account details as the firm’s trust fund.’’
Principals have professional obligations to supervise their junior staff, and if an error by a junior costs the client, a negligence claim could fall back on the firm for failing to adequately supervise that junior.
Assistant Commissioner, OLSC
Gavin Connor, head of the Law Society of NSW Trust Accounts Department, says this method is a popular one for cunning solicitors who are in a tight personal or financial situation and see an easy way to make money.
“As the old saying goes, ‘fraud follows opportunity’,” says Connor. “The client trusts the lawyer and will do what the lawyer tells them. If there is a lack of supervision by the principal solicitor, the solicitor can manipulate that trust.
“It often happens when lawyers bill clients for disbursements, which are either made up or not paid out to a third party. One recent case I dealt with involved a conveyancer juggling settlement funds in a way that would leave her with a surplus.”
Gavin and James note that most large firms require a partner to sign off on communications sent to clients regarding bills or trust fund payments. But smaller firms with more limited resources often trust the senior associates to do this kind of work with very little oversight from partners.
“Stealing money or misappropriating funds? It could absolutely be done,” James says.
What is the danger?
In the best case, an unprepared junior lawyer like Tom could stumble through a preliminary court mention and get the desired result – albeit requiring double the number of billable units a partner would need, and multiple times the frustration levels of court registrars.
In the worst case, a junior lawyer could lose the hearing and be left to shoulder any devastating consequences that follow. That was the fate of a young public prosecutor appearing for the NSW Police in the bail hearing of Lindt café gunman Man Haron Monis in 2014. The coronial inquest that followed the 2015 Martin Place siege found that the inexperienced lawyer, who did not challenge Monis’ bail application, had never appeared in a bail hearing before and had no formal training in NSW bail laws. The only instruction he was given was reading through the Director of Public Prosecutions’ online summary of the relatively new legislation and recent cases affected by it.
Samantha Gulliver, Assistant Commissioner at the Office of the Legal Services Commissioner in NSW (OLSC), says the most obvious risk for law firms is that a failure to supervise could lead to a costly professional negligence claim, like it has for Brody Clarke and AH.
“Principals have professional obligations to supervise their junior staff, and if an error by a junior costs the client, a negligence claim could fall back on the firm for failing to adequately supervise that junior,” Gulliver says.
Rule 37 of the Australian Solicitors’ Conduct Rules says a “solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services for that matter”. The legislation does not define “reasonable supervision”, but the Queensland Legal Practice Tribunal provided guidance in the 2005 case of Legal Services Commissioner v Michael Vincent Baker: “a practitioner’s legal and fiduciary duties to a client are not avoided or reduced by delivering that client into the care of an employee, whether or not that employee is legally qualified”.
And yet, Gulliver says the OLSC hears stories “all the time” from young lawyers about being sent to court with very little (if any) preparation.
The 2015-2016 Annual Report of the OLSC recorded 2,709 written complaints were made to the OLSC that financial year. Each complaint can list up to five issues to be reported. Of the total number of issues reported in those complaints, Gulliver says 15 per cent raised issues of negligence by junior lawyers.
“It seems a fairly small proportion but perhaps it’s because the partners are claiming responsibility for mistakes, or clients direct their complaint to the senior lawyer,” says Gulliver.
Initiation and burnout
“It seems like it’s a bit of a sport at some firms to send junior lawyers to court with no preparation,” says Michael Bradley, Principal Solicitor at Marque Lawyers in Sydney. “There are, to some extent, initiation rituals.”
Bradley trained as a graduate lawyer at Gadens in Sydney almost 30 years ago, and his first court appearance was in the NSW Supreme Court. A senior associate had told him to simply go and “get a two-week adjournment, it’ll be fine”. The opposing counsel met Bradley’s request with a long list of time extensions and defaults the defence team had already gotten away with.
“The judge said, I’ll stand the matter down to 2pm and you run down to the office and tell the partner to be here at 2pm,” recalls Bradley. “And he’s lucky I’m not making a judgment against his client.”
I can remember walking back from the Federal Court in Perth all the way down St George’s Terrace and crying the whole way back to the office.
Senior associate, Marque Lawyers
Bradley’s colleague at Marque, Giselle Finnane, had a similarly steep learning curve at a firm in Perth. She started in the tax litigation practice group and was “dropped straight into it, appearing in court all the time”.
Finnane says the lack of guidance gave her terrible anxiety. Her mind was overrun with negative perceptions about her work performance and she dreaded heading to the office each day.
“I can remember walking back from the Federal Court in Perth all the way down St George’s Terrace and crying the whole way back to the office,” she says.
“There were so many times that I nearly walked out. It was awful.”
Finnane would not be the first young lawyer to leave after such an intense “initiation” period. A 2015 survey of 1,000 lawyers by UK law firm Gunnercooke found almost three in four lawyers were suffering from burnout or were worried about the condition, but the most stressed-out age group was junior lawyers aged between 20 and 30. Many of those young respondents cited the high pressure on their work, accompanied by the low levels of supervision and guidance, as direct causes of their stress.
The 2006 Australian survey by the University of Newcastle previously mentioned in this story also found that young lawyers in their first two years of practice were the most likely to leave the law or change firms. The paper that has published the survey, titled “Lawyer Dissatisfaction, Emotional Intelligence and Clinical Legal Education”, noted that it is not necessarily the stressful nature of legal work that is forcing young lawyers to leave, but the “oppressive regime of managerial practice, with inadequate supervision and support”.
Bradley believes part of the problem is the “old-school” billing practices that many law firms cling to, which discourage senior lawyers from allocating training time to their juniors.
“One of the first things to feel the strain under a billable-hour model is optional training time,” says Bradley. “Because there is no incentive within the model to do it.
“The time-cost model drives everyone’s focus down to the next six minutes, which is extremely short-term thinking.”
What needs to change?
James Howard, Judicial Registrar of the District Court, says it’s easy to paint a dark picture of absent senior lawyers. But young lawyers also need to harden up – to an extent.
“As a junior there are certain things you can do to take initiative and train yourself,” says Howard. “Go down to court and watch what is going on. Take hints. Ask questions from seniors at your firm and try to get their help.”
Howard says it can be frustrating for registrars and judges tapping their watches as completely unprepared juniors fumble through a hearing. But the court will offer some leeway as long as the junior has done their homework.
“Everyone has to start somewhere,” says Howard. “Most of the time we can tell if a junior solicitor is representing, and we do what we can to accommodate that. But senior partners should be aware that if something goes wrong, the case will be adjourned, and we will make a costs order for the time spent. That can range from a few hundred dollars to a few thousand.”
Glenda Carry, a Regulatory Compliance Solicitor at the Law Society of NSW, believes senior lawyers should be taking more positive steps to supervise and train their juniors in light of cases like Brody Clarke and AH.
“The proverbial office ‘open door’ policy is unlikely to meet the required standard for a proper management system,” says Carry. “Rule 37 implies a positive obligation to supervise. Declaring that your ‘door is always open’ shifts the responsibility from the supervisor to the supervisee. An inexperienced employee may not appreciate the extent of a potential problem until it is too late.”
Lawyers are notoriously stubborn, and it would seem unlikely that either juniors or seniors be forthright in copping blame for any lack of on-the-job training pointed to by the examples in this story.
But perhaps we are pointing blame in the wrong directions. It seems relevant that most firm billing targets do not allow for time invested in personal wellbeing, mental health, ethics, or education of junior staff. Those things have become “optional extras” that lawyers tend to when they have spare time – a commodity that is becoming as rare as a fixed desk place in modern firms.