Lawyers or Grave Robbers
The grizzly truth
When one enters the world of inheritance, and the legal profession become involved, it soon becomes apparent that this place is as real as the rain that falls from the sky, the sun that gives us life and the wind that brings us fresh air every day.
The goblins become the lawyers. The pots of gold are their fees and the fortress one finds has been built up by an elite group of unaccountable, untouchable humans, who justify their existence though the rule of privilege. They are what we term the judiciary (the keepers of the law).
Unlike most other professions the legal fraternity when acting as paid professional executors remain largely unaccountable and can only be judged by their peers. A consumer of their services is not provided with any quality standards or guidelines as to how lawyer/executors behave. If one has concerns about inefficient and costly procedures, they are impossible to pin down. They are a law unto themselves. In jurisdictions of criminal, business and financial disputes, it is possible to argue that there is a need for adversarialism. In the event of a parent’s death and the passing on of the centuries of accumulated family wealth to the distressed and grieving relative’s different skills are essential. Skills of conciliation, negotiation, mediation and selflessness upon which the beneficiaries of deceased estates can rely.
Currently the legal fraternity do not require specialised training in order to become professional, paid executors of their client’s deceased estates. There are no standards on how they should treat the beneficiaries of the estate. The beneficiaries, unless they hold executorship are not considered by the law to be worthy as the lawyer/executor’s clients. They have no recourse in regards to the procedures used by the lawyer/executor in the management of the estate. There is no disciplinary body available to evaluate whether or not the lawyer/executor is behaving in a combatative manner in order to benefit himself by racking up fees and charges on the estate. There are no formal venues available in which to mediate these types of concerns by the beneficiaries, apart from an application to the Supreme Court. This type of application is extremely expensive and substantially reduces the values of deceased estates as a result of the obscene legal fees.
The impotent regulators
I find it bizarre to have a situation in Australia in 2005 whereby a self interested lawyer/executor whose procedures are combative out of financial self interest can further gain through the process of action in the Supreme Court.
Bizarre because it illustrates the gulf between community thinking and that of some members of the legal profession, who are acting as legal practitioners as well as executors, without any accountability whatsoever apart from the constraints of the Supreme Court.
To challenge such professionals in the Supreme Court allows these lawyers to charge the estate whilst defending their own tardy actions and not those of the estate. It illustrates how biassed the law is towards such professionals and how vulnerable the beneficiaries of an estate can become to some of these professionals. There are no standards to define conciliatory versus combative behaviour. In the late eighties sexual harassment in the work place became an issue and standards were written.
In my case by following the sequence of events it is clear the lawyer has acted in a combative manner.
A legal system
Out of touch out of time
KATE HAMOND’S office handled 820 complaints in 2004-05, compared with 807 the previous year. The Law Institute handled 1715 complaints (1921 in 2003-04) and the Victorian Bar handled 93 complaints (86 in 2003-04). Most complaints were about negligence, including poor case-handling and advice, and concerns over costs and bills.” i
Kate Hamond was the peoples advocate in relation to the legal industry. When she attempted to raises the concerns of the public interest to the Law Institute of Victoria, instead of the president John Cain embracing her concerns and working closely with her to address these concerns, he critised her comments in the press, made a vicious attack on her contribution to change for our legal system and formed a position that can only be described as a childish denial of the need by the profession to develop into the twenty first century. This view is reinforced by comments made by Jack Rush QC in an article attacking the Legal Ombudsman published in Barristers monthly.
Response by The Legal Profession
Headed Of Barristers and the Legal Ombudsman
The main attack on the Bar’s position concerning self-regulation has come through the office of the Legal Ombudsman. Regrettably this attack has been marked by unsupported allegations, blind ideology and a reluctance to engage in reasoned debate.
The public campaign of the Legal Ombudsman, Kate Hamond has cranked up this year. Hamond has used the media to attack the profession, in lopsided and extravagant terms. The Ombudsman’s rhetoric appears to be based on the following propositions: The current system “ is wasteful because of enormous duplication”. It would save $3 million a year if her office investigated all complaints.
The annual monitoring by her office of [the Bar’s] investigation files results in recommendations for improvement and, every year, the basic benchmarks “her office sets are pretty much ignored”.
There is a need for “independence and impartiality” in legal regulation.
The “mood of the public” is for change. “Everybody agrees that change is needed.”
See Lawyers Weekly 28 February
2003, The Sunday Age 8 December 2002,
In this article the legal profession typically describes the Legal Ombudsman’s concerns as an attack. This is to be expected of a profession trained in adversarialism, that sees itself as justified in utilising partisan tactics upon the public interest as advocates for their clients. The idea of being conciliatory and taking criticism as something that is useful and constructive is a completely foreign concept to the Anglo Saxon way of thinking. Most of industry within Australia has matured to the point where we take on board constructive criticism and learn from it. It appears as if the legal profession needs to grow up, get out of their nappies and stop crying.
What of the allegation of the Ombudsman that the “mood of the public” is against the Bar being involved in regulation?
The Bar strenuously disagrees. There is no demonstrated groundswell of community opinion against the Bar regulating barristers. In any event it is reasonable to speculate that, if the “members of the public” to whom the Ombudsman refers were properly informed as to the Bar’s role and history of regulation, any concerns would be greatly allayed.iii
This statement by Jack Rush is indicative of a profession that is out of touch with community expectations. Many other industries are now accountable to consumers via independent regulators and have adopted quality standards as an integral component of their day to day running practices. The community assumes that every profession is accountable and when confronted by the lack of accountability, lack of standards and self regulation of the legal profession they quite often feel disempowered and give up in disgust. The costs both financial and emotional required by an individual to make a legal professional accountable defy comprehension. When one understands the enormity of its power base one can see the insurmountable challenge. A challenge that even Don Quixote would think twice about undertaking.
The charge that the Ethics Committee is not “independent” begs the question, independent of whom? The Bar has no interest at all in protecting barristers who engage in misconduct. Such barristers reflect badly on the whole Bar. The Bar is interested in identifying and eliminating such conduct.
The present system of regulation imposes professional self-reliance and responsibility for regulation on the Bar as a whole. In particular, the system promotes a sense of responsibility for the ethical conduct of one’s own colleagues and maintains the standards of professional conduct through constant peer review. The present system is a vital component in ensuring the independence of the Victorian Bar. It is a system that has worked to the benefit of the Victorian community, the administration of justice and the Bar. No compelling argument has been produced to justify the changes sought by the Legal Ombudsman, let alone her extravagant claims.
Jack Rush QC
The statement by Jack Rush illustrates the degree of denial held within the legal profession on its need to meet community expectations. He uses the rationale that beecause it has worked in the past it must now be working and therefore there is no need to change. This is despite the fact that the legal system emanates from a group of very powerful, privileged, unaccountable people, who do not have any standards through which the public can monitor their actions. The public sentiment has enabled government to implement changes that have made many other professions and industries accountable, by incorporating the principal of being accountable via independent regulation. The legal profession needs to come out of its denial and fall in line with many of its forward thinking counterparts.
This is a typical response by an organisation that has its origins in adversarialism and is itself adversarial towards any proposed improvements to itself for the good of the nation.
The following statement by Jack Rush
The Bar strenuously disagrees. There is no demonstrated groundswell of community opinion against the Bar regulating barristers. In any event it is reasonable to speculate that, if the “members of the public” to whom the Ombudsman refers were properly informed as to the Bar’s role and history of regulation, any concerns would be greatly allayed.
Is cause for public concern and illustrates how out of touch and out of time the legal profession has become with public sentiment.
His sentiments are refuted by Christine Parker in her introduction to: Regulation of the ethics of Australian legal practice: Autonomy and responsiveness.
Why is it that the wider community finds lawyers’ ethics of practice so troubling and the responses of the profession to ethical issues so unsatisfactory? The way in which the ethics of legal practice is regulated in Australia perpetuates a mismatch between the ethics that the public expects of lawyers (an ethic of responsiveness) and the ethics that the legal profession has traditionally adopted for itself (an ethic of autonomy). Despite important reforms, the most significant regulatory controls on lawyers’ ethics continue to be the traditional requirements ofadmission, discipline and liability for breach of fiduciary duties. It is helpful to examine the assumptions about the role and ethics of lawyers that lie behind these regulatory controls in order to evaluate their suitability for meeting public policy goals. The traditional controls are not responsive to public concerns about justice and customer service. Rather, the profession and its regulation were intentionally built on a foundation of ethical autonomy. The profession decided for itself what was in the best interests of clients, the public and the administration of justice. Other perspectives were disregarded because non-lawyers were thought to lack the expertise (and frequently the inclination) to comment intelligently on the ethics of legal practice.
A plethora of reform proposals for the legal profession show that the Australian community now expects the legal profession to fulfill its public role in the administration of justice and delivery of legal services by reference to consumer and justice concerns. However half-hearted, reforms aiming to generate responsiveness have been patched onto a system that remains essentially autonomous. In recent times, a series of reforms have been reactive rather than genuinely responsive to community concerns.vi
II Traditional `Professional Controls – Autonomy.
The traditional approach to lawyers’ ethics institutionalises lawyers’ autonomy. Firstly, the regulation of lawyers’ ethics adopts a self-regulatory model. The legal profession sets ethical standards for itself either through legal professional associations, within law firms and barristers’ chambers, or using the rules of court.vii
The ideal of lawyers’ ethics is the combination of extreme partisanship with moral non-accountability. The principle of partisanship requires advocates to advance their clients’ partisan interests with the maximum zeal permitted by law; and the principle of non-accountability insists that an advocate is morally responsible for neither the ends pursued by the client nor the means of pursuing those ends, provided that both means and ends are lawful. General moralconsiderations and community values (including any that the lawyer himself or herself personally holds) are therefore irrelevant to the lawyer’s role as advocate for his or her client.
The only considerations that dilute the duty to the client are the overriding duties to neither break the law, nor breach the lawyer’s duty to the court. These overriding duties have traditionally been interpreted fairly weakly by courts and disciplinary authorities, and have rarely been applied except when a lawyer is actively dishonest to a court. The ethical stance of the adversarial advocate is most strongly justified by the lawyer’s role as agent for the client in the adversary system. However it extends beyond trial practice to all aspects of lawyers’ practices. Citizens of modern liberal democracies, it is assumed, are unable to understand, exercise and protect their own rights in a complex legal and administrative world. The rule of law therefore requires partisan, loyal lawyers who will advise citizens and advocate for their rights in a variety of contexts without fear of being held ethically accountable for doing so.
I leave you the reader to reflect.
Unfortunately bereaved relatives of moderate estates within Victoria are being churned through the legal system at great expense to the estates and to the mental health and well being of the families who are involved. The only real beneficiaries are lawyers. If we believe we should have laws formed from the community rather than laws that have grown out of a thousand years of feudal tyranny. Why are the bodies that are responsible for protecting the public interest, failing to implement standards for the legal professionals involved in the writing of wills and the administration of family inheritance?
Personally I can only assume that the lack of action is due to the money pit that is available to the legal profession. Isn’t it about time that as people we demand from our government a different legal system for managing our family inheritance? A system based upon compassion and the well being of our families instead of a lawyers` “bank account”.
I conclude with the following and final joke.
What is the difference between an elephant in a banana patch and a lawyer executor in a deceased estate?
The elephant behaves like a wild animal.
The lawyer executor behaves like a barbarian.
Our adversarial legal system has originated from William the Conqueror. Its origins are from barbarism and not from community. The laws emanate from a principal of ‘rule over’, rather than one of being generated by community. This is very clear when the actions of the lawyer/executor of my mother’s estate are seen for what they are. Laws, which he and his firm have applied over the requests, by a living and functional family, to benefit himself through increased fees and charges. Laws condoned, by the regulators and his own professional body. They are laws emanating from barbarism; laws that support the destruction of productive harmonious communities made up of families. Laws that condone “grave robbing”.
Here endeth the lesson.
To The Hon Matthew Guy
I am writing to you as a follow up on my last correspondence to you in November headed “Our society must protect the wishes of the dead”.
The NSW government and the Victorian Government are currently both reviewing their Inheritance acts. Once they are rewritten they will be rolled out through Australia. These laws will have a major bearing upon how we as a nation treat inheritance through legal process. Since approximately 80 billion dollars per year or one trillion dollars during the next ten years will be processed under these laws it is obvious they will have a significant.
These laws will be written by lawyers with almost no input from independent groups who have the interests of families at heart unless our duly democratically elected members of parliament insure that the interests of their constituents are well represented, the constituents being comprised of Australian families. If this intervention does not occur It will mean the status quo will remain.
Unfortunately our legal profession is not immune from abusers, as with any institution involving humans there are the good and the bad. The behaviour of some members of the Catholic Church and the delayed actions by the church in addressing those problems is a good example. The abusers were sheltered by the public perception that all men of god are good people and therefore how could they do bad things to children. As humans it is more comfortable for us to maintain our beliefs than to see the truth and deal with the problems.
We trust our legal profession because we have to and because we believe we can trust the system that administers it. When a lawyer lies for his own benefit it is contrary to our belief structure and it is more comfortable for us to believe he didn’t lie rather than face the truth.
We trust our legal regulator to act in an unbiased manner when investigating complaints against lawyers who abuse family inheritance rights as did we trust the church to investigate the complains against the priests who were sexually abusing children. When the victims of this abuse complain it is more comfortable for us to maintain our belief structure than face the truth that the abuse is really happening.
The legal services commissioner received over 900 complaints from families over a three year period against lawyers who were dealing with inheritance issues.
I have sent you an open letter which outlines my concerns as a person who has experienced the failings of our Inheritance Laws and our Legal Services Commissioner.
I have also rebuilt my web site in the form of a submission which I have already sent to
the N S W reform committee. The current link is www.lawyersorgraverobbers.com
The submission explains the reasons why family interest must take precedence over lawyer’s income and power when forming administering and practicing our inheritance laws.
I trust you will take my recommendations on board so as to make Victoria and Australia an even better place for our families to live in in the coming century.
If you would like any further information I will be happy to assist.
11 Traditional `professional` controls autonomy pg 679.
11 Traditional `professional` controls autonomy pg 679.
11 Traditional `professional` controls autonomy pg 679.- 680
111 Contemporary regulatory controls – responsiveness. B Complaints Grafted onto Disciplinary Controls. Pg692