The Honey Badger Manifesto

A lawyer’s role involves the fearless and independent advocacy of her client’s interests. Whether that involves appearance in court, negotiating a contract, attending a police interview or simply providing advice, the role is the same; to represent the client ahead of, and without regard to, the lawyers’ own interests.

This role, one of selflessness for the benefit of the client, is a cornerstone of our legal system. And that duty is surpassed only by the higher duty a lawyer has to the Courts – recognition that the rights of the individual are subservient as a whole to the rights of society, reflected in our laws themselves.

It may sound trite, most certainly clichéd, but a properly functioning legal system is the golden thread that binds the fabric of society. Without law, properly administered, where all before it are equal, society would descend into chaos, or as history has shown, often something much worse.

It is axiomatic then, that the legal system that operates as a fundamental part of a civilized society must be afforded a level of honesty and deference by the members of that society who wish to prevail upon her. And not just the members of society, but the officers and participants that ensure the system functions.

Without adherence to that overarching duty, the legal system would prove to be no more than a modern-day coliseum – a venue for parties and their gladiators to fight to the death, figurative and literal, by any means possible.

All too often, both as lawyers and even just as simply functioning human beings, part of that greater set of people that make up the society we serve, our day to day existence is ground out without much thought.

Sure, we may think about exactly what we’re doing – where to put that full stop or comma, how to spell ‘interlocutory’ and so forth.  There may even be some vague thought in the back of our minds that, ‘this is helping me feed myself or my family, maybe paying for a holiday’ at some distant time in the future.

But we all know secretly that pretty much any paying job could do that in varying degrees.  Rarely however, do we ever give much thought, when we drag our sorry arses out of bed in the morning, or when we turn off the light to our office, or all the time in between, as to just wtf we are doing.

More to the point, ‘WHY’ are we doing it?

Why do we put our own interests behind the interests of those who we barely know, who more often than not see us as part of the problem rather than the solution?  Why do we pull 24-hour shifts preparing for trial, or spend all week documenting a deal that must be done only to find out on completion the deal has fallen over? Why do we descend into the bowls of the earth in some prison to rub shoulders with smack fiends, convicted murderers and paedophiles, among others?  What is it that makes us stand up to a dozen gun toting police who represent and can call upon all the power of the State, armed ourselves only with a pen, and say “no, you cannot talk to my client without my permission, and if I don’t want him to answer your questions he wont, so go away”?

The short answer, I expect for many of us, is simple.  Because we can.  Honestly, I’d be lying if I said there wasn’t a selfish sense of smug satisfaction that comes from winning a court case, getting a deal done for your client or standing up to coppers and closing the door in their face.  That is real power in a sense.  And one cannot deny that power such as that brings with it a warm inner glow, maybe even if only by reason of the sense of security that satisfaction.

That is not to say that is necessarily a bad thing either, provided it is kept in check; subject to one’s own self-awareness and of course those overriding duties that are designed beautifully for that very purpose.  However, there is also something more, which keeps us coming back for more punishment.  There is only so much smug self-satisfaction one can handle. And besides, for every win there’s a loss.  And the self-reprobation and dissatisfaction that comes from a loss is inversely proportional to the joy that comes from a win.

And that smugness comes from something deeper too.  No, floating in the back of our minds somewhere, perhaps right alongside those thoughts of a holiday if I can ever get to the bottom of my ‘to do’ list, is the recognition that it is truly a greater good that we enjoy.  There is, and I jest not, a degree of altruism in the practice of law that goes largely unnoticed by the by.

Former Chief Justice of the Supreme Court of Queensland, and now Governor of Queensland, Paul De Jersey used to regularly say at admission ceremonies that there is more justice administered in solicitors’ offices across Queensland on a daily basis than in all the Courts in a year.  He’s right.  Disputes are settled, fences mended, relationships repaired, risk avoided, contracts settled and business done in every law firm across the country every day.  Most of which happens without people going anywhere near a court.  What would happen to society on all levels if this did not occur?

How could that be without a degree of selflessness?  Without the ability to put one’s own interests aside for the benefit of others, no justice (or at least not the type with which we are all familiar) would be done in such a fashion.  And it is that, ignored on a conscious level, but there nonetheless just in the back of our minds, which is what truly makes us get out of bed every morning.

And for all that, rather than being venerated as the saints we so obviously are (at least if you accept the above arguments), the legal profession is widely regarded by society as a bunch of self-serving sharks and shysters who are only looking out for themselves.  At any gathering of folk, the slightest suggestion a lawyer’s calling involves any degree of altruistic intent brings out looks of incredulity and sidesplitting guffaws.

Of course, this is despite all the practical evidence that indicates self-interest is not the motivating factor for the practice of law.  The system just would not work, at all, if the legal profession served itself before it served its clients or the law.  But then, the truth never was a good story.  I suppose it is arguable that it doesn’t work, at least not in the ideal fashion.   It does not help that our brothers and sisters in the profession do little to help themselves.

The adversarial nature of our profession leads to constant conflict in the life of a lawyer.  Conflict with one’s partners, clients, opposition, judges, bureaucracy; the list goes on.  Our training forces us to dissect what has been told to us, to establish the veracity of any facts, take an opposing point of view to test an opinion, and in a very Socratic way, to get ultimately to the truth.  Indeed, the legal system and Courts in particular serve to determine, the, or an, objective truth of things. At least to the extent that is at all possible,

Of course, the rest of the world (outside science perhaps) does not operate that way.  For the rest of the world, getting on with its life, the truth is subjective, and perception is the only reality.  And reality can change. It is malleable for folks in the real word.  Whether that is a good thing or bad is not something we need to concern ourselves with here.  It just is.

A profession trained in, and accustomed to, constant conflict and the dissection of language to get to the truth of matters is bound to be feared or loathed by those without that training and knowledge.  Lawyers stand divorced from those we serve by how we are trained to look at the world.  The good lawyers, the ones with sufficient self-awareness and self-confidence, can work in both worlds.  They are capable of transition between the fluid reality of perception and everyday life and the concrete rules of the law. They are rare, for we are all too human.

And, despite the overwhelming need for solid self-confidence that is demanded by the profession, I suspect it attracts an awful lot of folk who are anything but confident or self-aware.   They cling, like a limpet to a rock, to the certainty that is offered by the profession, practice and the law.  “But that’s the law’, ‘they’re the rules’, common refrains, like some holy writ. As though the law is the only truth and without it we’d be washed away by the ocean of perception and uncertainty.

Dogmatism rarely goes down well with those less informed about the rules, particularly if the rules enable one particular group to have, in appearances at least, a degree of power over or greater than the rest.  And it is no surprise it suits others, with competing power and influence (government, media, etc.), to paint lawyers with a bad brush.

The simple truth is people fear what they don’t understand.  And, in the main, they do not understand the law. Or how it is used.  Jo Public may be able to access the laws more so than ever before, but just because he can read does not mean he can understand.

One would think that as paid communicators and advocates, the profession would do a better job at educating the public it serves as to its benefits.  For a profession made up largely of people lacking in self-confidence (appearances are not to be believed) it doesn’t do a lot to ensure its members are liked.  This may stem from the innate lack of confidence and resultant fear that if the public is educated there’d be no real need to do the job.  Is the profession really that weak that it cannot take strength in the true value of what it does?

The professions’ strength, that is derived from honouring its obligations to others, is also its greatest weakness.  Self-promotion in a profession where you’re only as good as your last case, the evidence and varying degrees of luck tend to get short shrift.  Combine that with a constant state of conflict among your peers, no matter how collegiate, and you very effectively muzzle any attempts by the profession as a whole to advance its cause.  Hard to tell the world what you’re doing for it when you’re too busy fighting among yourselves, or secretly too scared to pin your colours to the mast where they can be easily torn down.

The irony is all too bitter.

And of course, maybe I’m wrong.  Wouldn’t be the first time.  Maybe self-interest is the true motivation for lawyers. After all, why should they be any different to the rest of society?  Perhaps all this talk of altruism and fiduciary duty is just a cleverly designed system of words and bureaucracy designed by the lawyers themselves to disguise their self-interest with the thin veneer of respectability.

That too would explain why the profession is generally treated with such poor regard.  The hypocrisy is galling I guess.  Pretending to be nobly placing your interests behind those of the client, just so he can’t see your hands in his pockets.  A gross breach of trust drowned out by the furore of proclamations and protestations as to the very trust being abused.

And it’s not a hard conclusion to draw.  Take the most typical manner in which a lawyer is retained.  The prospective client is required to negotiate a contract with their lawyer.  Now, usually these client agreements are reasonably complex and reflect a serious bent toward protection of all the lawyer’s rights.  I would never sign one as a client.  Very few of the terms benefit the client, save some statutorily mandated ‘entitlement’ to a costs review.  You can see the problem of course?  The client starts from a position of complete inequality in bargaining power, obliged to ‘trust’ that the lawyer will look after the client’s interest.  Should they get a lawyer to advise them on the contract with their lawyer?  They should but they won’t.

But that is only the half of it.  Given that the lawyer is paid by the client for the amount of time the matter takes, every incentive exists for the lawyer to take as long as possible to do the matter. Indeed, she is rewarded for her inefficiency.  The bright or experienced lawyer, that solves a problem with a phone call, or heaven forbid tells the client there really is no case, by definition charges much less than the dim-witted or inefficient lawyer that plugs away for two years on a losing case.

So, provided the lawyer’s work has some bearing, no matter how slight, to the client’s instructions in a matter (e.g. defending a claim, drafting a contract) then the assessment is going to include all the time spent on the matter, and with absolutely no regard had to the utility of the work done to the end result for the client.

The overwhelming majority of lawyers and law firms operate in this fashion.  Firms that eschew time recording and charge fixed fees or value billing are considered ‘innovative’, a bit ‘out there’ even and looked on with both suspicion and mild, patronizing, and very vague, amusement.

The ultimate irony of all of this is that when the client complains about such a rort, the lawyers have the galling temerity to say, ‘but you agreed to this.  See, here is the client agreement you signed’.  A deal with the devil.

And you know what is truly frightening about all this?  It’s the scale. There are literally thousands of lawyers plugging away at their timesheets across the country every day.  A minimum of 6 – 7 hours per day per lawyer – for around 300 days a year. More if the firms can get away with it.  The highest billers are the stars. Untouchable in all other respects, no matter how sociopathic they may be, or the actual results they achieve for their clients. Benefit?  We’re not rewarded for benefit. We’re rewarded for time spent on a file. That is all. The sole and singular focus.

Now I don’t begrudge anyone making a profit, no matter how tidy. But when it’s as a result of a statutorily mandated protection racket it is a bit much.  Particularly when it’s at the cost and detriment of the client whom we are supposed to serve.

And it is not only the client that suffers.  Many lawyers, most even, join the profession with the aspiration of doing well. Good work, good help, intellectually stimulating work at the very least. Whatever it is, they want to be lawyers.  But this system generates a bunch of worker bees who are slaves to the time sheet.  Workers whose sole purpose is billing 6 hours per day.

Their role is not to finish the job in the most commercially expedient and effective fashion for their client.  Their role is not to even ‘win their client’s case’.  It’s astounding really. Their very employment and livelihood depend upon reaching the daily target.  Not particular inspirational at the best of times.  And sadly, it is a system, which breeds sociopaths and encourages greed, at the expense of the client and the law.

You either get with the programme or you burn out or leave. The profession has lost many a bright spark and future leader through its blind and unthinking adherence to this unsustainable swindle.  Any right-thinking person, when exposed to the process for any length of time realizes it for what it is. But like any good institutionalization process, by that time you’re complicit.  And so, it goes on, perpetuated by one and all with a duty to do better, who know better, who may even (secretly, but don’t mention it out loud lest the managing partner hear) want to do better.

How can such a profession of apparently clever people be so stupid? How can a profession that has a line-up of some history’s bravest people (Sir Thomas More, Gandhi, Mandela, Martin Luther King for example) be so collectively cowardly and self-interested?  It is no wonder that not even lawyers like lawyers.

Given all this, it isn’t surprising that the legal profession has one of the highest levels of depression among all professions.

But it doesn’t have to be this way.  It is possible for the profession to regain the respect of the public it serves.  That we can practice law in the ideal of service to others for a greater good is not just a pipedream. We can realign the interests of the law firm with those of the client, where the client is no longer ‘the enemy’.

And paradoxically, even though this involves abandoning outmoded concepts like time costing, and measuring the profitability of every matter, it can even mean the practice of law is more profitable than ever; just not at the expense of the client’s interest.

Despite the common assumption, lawyers do not sell ‘services’ or legal advice.  Many think they sell their time (which is of course why at some point all clients reach a point where they’re sick of paying for that time).  No, lawyers sell satisfaction, protection and relief from legal problems and risk.  And for every client the measure of those things is unique; that is where the value lies.

Once lawyers understand that proposition, that each client or their matter is not some bunch of potential units to be converted into dollars but a real person with genuine fears and aspirations, and they relate to the client on that basis rather than as some potential law claim, lawyers can tap into the most amazing thing they will experience in a lifetime of practice – a true relationship with clients that will last the test of time.  Something wonderful that smashes the discreet boundaries we try to place between ‘work’ and the rest of our life and brings true meaning to what we do.

The law recognizes, at least in spirit, the huge power imbalance between lawyer and client.  That imbalance exists almost entirely through the simple fact of knowledge of the law.  Many laymen don’t even recognize their lack of power on a conscious level.  This of course is one factor in their inherent distrust and dislike of the profession.  Much of their attitude to lawyers is no more than a reflection of a sub-conscious fear arising by virtue of that power imbalance.

Consequently, when a client is led to understand and believe that his lawyer appreciates, and accepts, that powerlessness as one of the biggest barriers to communication (the key to any successful bond) is removed. Once a lawyer recognizes and respects both the power clients place in him and the fear that attends any involvement in the legal process it is possible to discuss with the client the real value in the lawyer client relationship.  That is then a discussion that inherently leads to trust.  Once value is understood and agreed upon, it is also a metric by which the strength of the relationship is easily measured and maintained.

However, talk is cheap. Ultimately action is the true means by which any long-term relationship will survive.  And so it is that not only must lawyers provide their clients with an understanding of the value of the profession, they must reflect that value in the manner in which their services are provided.  All the talk and understanding in the world will not undo the trashing of goodwill that occurs each and every time a 6-minute unit is billed. Lawyers must change the way they practice. Their business model, if you can call it that in the context of a profession, must change to echo the sentiment.

It is easy to talk of services that are client focused and designed to achieve satisfaction.  However, the only way to deliver on such promises is through the discussion of, and agreement on, the value of the relationship (not the price of the service).  Once that discussion is had, the lawyer can concentrate on being a lawyer, and the client on being a client.  The usual cause for distrust and disagreement in the relationship, having ready been thoroughly resolved.

Ready and constant access to reliable and skilled legal services, and the protection that comes with that, is a real enabler, a force multiplier if you will, for businesses.  It is not something that ought to be considered a luxury.  Yet for all of the reasons I have set out above, it has certainly come to that point.  Only the most successful businesses seem to be able to afford to have legal services on call.  And the crazy thing is, that is largely the fault of the profession itself.

There is no good reason for the legal profession to prefer a model for business where the client is saddled with all the risk and pays for the privilege of doing so.  It is the lawyer’s problem if his or her firm is not profitable, not the clients’; and no lawyer should ever be determining whether to take a client’s matter on the basis of its profitability.  Either the firm is profitable, or it is not.  That is not the client’s problem. Once retained, it is the law firm’s duty to put its own interests aside and serve the client.

In the legal profession, it is very easy to fall into the trap of taking oneself all too seriously.  The above treatise on all that ails the profession is a case on point.

As the natural world’s most fearless animal the Honey Badger is emblematic of what we do on a daily basis.  “Honey Badger don’t give a shit’ or ‘Honey Badger don’t care’ is a common refrain in pop culture.  But rather than reflecting some lack of interest, it in fact represents the very essence of what we do as lawyers.  The Honey Badger represents that vital independence and lack of self-interest that we must bring to our profession. The need to not ‘give a shit’ for yourself and get on with the job.

Taking a stand which, some might see, or say, is against the profession, or which seeks to put us on a pedestal, indubitably requires a ‘don’t care’ attitude.  We have to wear the barbs, slings and arrows from those with vested interests in maintaining the status quo or those with a lifetime of distrust in the profession.  That really does require a tough and fearless attitude.

We are not ‘holier than thou’.  We are not better than our peers.  Many of them are no doubt far better lawyers than we could ever hope to be.  But we love the profession of law and everything it is supposed to stand for.  And it is that love of the law, which drives us to be better than what we have been.

And the Honey Badger is our symbol that represents all that it takes to be better.