Professionalism and Commercialism: Conflict or Harmony in Modern Legal Practice?
![handle is hein.journals/aslnlwjunl84 and id is 797 raw text is: Professionalism and commercialism: Conflict
or harmony in modern legal practice?
James Allsop*
The following is in substance the paper delivered at the 2009 Australian
Academy of Law Conference in Perth, 17-19 September 2009. It seeks to
expose some of the competing considerations concerning the practice of the
law as a profession and as a business. It raises the question whether, if the
fiduciary relationship is properly recognised and enforced, some of the
apparent problems might be seen to be ones not for agonising over, but for
remedy.
Let me begin with a question about practical affairs, drawn from anecdote. (Those who know my
interests will no doubt sigh. But indulge me.) The question is: Despite the size of merchant marine
tonnage owned by maritime powers such as Japan, Korea, China, Malaysia, Russia, the countries of
Europe and India, the proportion of commercial shipping tonnage still owned or controlled by often
tightly owned family or clannish Greek interests under a variety of flags is still significant - something
in the order of 18%.1 By and large, through the consistent use of arbitration clauses in their operative
charterparties, Greek shipowners still overwhelmingly choose London for their dispute resolution, as
their fathers and grandfathers did in years past. Why is this so? I will return to discuss the answer to
this question in due course.
On the occasion of the launch of the Academy in July 2007, the former Chief Justice of Australia,
the Hon Murray Gleeson AC, noted that one object of the Academy is the support of professional
values in a time of what he referred to as the increasing mercantalisation of legal practice.2 He
continued:
[T]he single-minded pursuit of private gain has never been consistent with a full acceptance of the
ideals of professionalism. It is of the essence of professional values that the pursuit of personal interest
is modified by an acceptance of responsibilities, to the public, and in the case of lawyers, to the court.
Those responsibilities may in some circumstances conflict with the dictates of private interest:
In a similar vein, the Chief Justice of New South Wales, the Hon James Spigelman AC, said in his
speech at his swearing-in:
[the operation of a market gives absolute priority to the client's interest. A profession gives those
interests substantial weight, but it is not an absolute weight. In many circumstances, the lawyer's duty
to the Court prevails over a client's interest, let alone the client's enthusiasms.4
In October 2005, one of the most senior practitioners in the country, Bret Walker SC, gave a
forthright speech confronting directly and bluntly what he saw as important structural failings of the
legal profession and an overemphasis on commercial factors in the contemporary practice of law.5
It cannot be sensibly doubted, in my opinion, that the maintenance of the highest standards of
ethics and professional skill and responsibility is not only essential for the maintenance of a healthy
system of the administration of justice and the rule of law, but it is also essential for the long term
'President. New South Wales Court of Appeal.
UN Conference on Trade and Development, Review of Maritime Transport 2008, p 39, Table 12: The 35 Countries and
territories with the largest controlled fleets, as of I January 2008 (http://www.unctad.org/en/docs/rmt2008 en.pdf).
2 Gleeson M, Speech deeivered at Australian Academy of Law Launch, Government House, Brisbane, 17 July 2007
(http://www.academyoflaw.orp.au/events/cimg.pdt).
3 Gleeson, n 2, pp 7-8.
Swearing In Ceremony of The Honourable J J Spigelman QC as Chief Justice of The Supreme Court of New South Wales.
25 May 1998 (http://www.infolink/lawlink/supreme court/ll sc.nsf/pages/SCO speech spigelman 250598).
'Walker B, Lawyers and Money, St James Ethics Centre Lawyer's Lecture 2005, 24 October 2005
(http://www.ethics.org.au/about-ethics/ethics-centre-articles/ethics-subjects/law-and-ustice/article-0465.pdf).
(2010) 84 AU 765
765](ViewImageLocal?handle=hein.journals/aslnlwjunl84&div=118&collection=&method=preview&ext=.png&size=3)
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