Wearing it on the sleeve
Author: Edwin Montoya Zorrilla (TLF NSW)
Law firms generally take a highly guarded approach to any form of political expression. Beyond the occasional submission to a public inquiry, law firms will rarely put out political statements. From a commercial perspective, it makes sense to be judged by your ability to deliver results for clients rather than the views you hold, and to avoid alienating clients who might disagree. From an institutional perspective, this might be seen as a reflection of the impartiality courts purport to hold.
This does not mean that the interests of law firms are not aligned with political parties. Last year, the Australian Financial Review surveyed the donor disclosures published by the Australian Electoral Commission to find that several firms had made donations in the year 2015-16. Maurice Blackburn donating $49,000 to the Labor party was unsurprising; after all, this has been their policy for decades and is in line with their stated support of workers’ rights. There were some more surprising inclusions, namely Holding Redlich’s $92,700 courtship of the Labor party at several levels. Norton Rose Fulbright, in contrast, spend about $22,000 on donations to the Liberal party. More saliently, law firms throughout Australian history have been at the other end of the revolving door of career politicians- Malcolm Turnbull, Julie Bishop and Julia Gillard being the most recent and high-profile examples of this trend.
Big commercial firms do, after all, share the interests of their clients in financial and regulatory conditions that ensure a market full of investment, new contracts, and mergers and acquisitions, interests that are political insofar as such conditions generate winners and losers across society. One must only look at the divisions being exposed and created by the property bubble. However, it is also the formal role of firms to advocate on behalf of their clients without appealing to a particular agenda, but rather by formulating arguments that appeal to the interests of the legal system or regulatory consensus. In this environment, there are clear disincentives for lawyers to be seen as outspoken or closely associated with the agendas of certain interest groups.
Yet the status of opinion and discourse in society today is such that any claims to common values or rights, any media representations or even objective facts are heavily contested on ideological grounds. It is inevitable that some form of politics will erupt through any set of social relations. In the legal profession, what is known as “law firm politics” is never too far from politics in the broader sense. Recruitment practices are increasingly being evaluated on the basis of the levels of diversity they create. Progression through a law firm invokes questions of intergenerational politics, and in some instances, sexual politics. Billing practices invokes questions of access to justice and rights in the workplace. Increasing media exposure and outreach puts lawyers in the court of public opinion.
Much of the work of The Legal Forecast is about encouraging those entering or within the legal profession to be proactive, rather than reactive, about such questions. On a Monday afternoon, I entered the offices of Sydney Criminal Lawyers. After only one email expressing interest in speaking to someone from the company, I was asked if I would like to interview Ugur Nedim, the principal of the firm. This is a firm that entered my radar, like those of many of its clients, through social media. As Ugur told me, for the last fifteen years the company has maintained a strong online presence, and this has placed it in the middle of several important conversations. Criminal law is not my area, but it was my guess that the personal stakes and the range of cases lawyers deal with would generate broad discussions and a range of viewpoints. His interview, which he encouraged me to publish in full where possible, revealed much about what lawyers do and don’t openly discuss.
Could you please tell me a little bit about who you are and what makes you tick as a criminal defence lawyer?
I started back in 1998 as a criminal defence lawyer but before that I worked casually about five or six years as a clerk in a firm, once or twice a week, that had mainly criminal law but also some general practice. I quickly saw that I wanted to do crime so after I graduated I began looking for criminal law jobs and after some time I found a job in a specialised criminal office.
Working in criminal defence for the firm, I tried to get cases finished in a timely fashion. I was very keen and I worked very hard, very long hours. But after a while with the practice, I got the impression that it was more to do with the money rather than trying to get good results for people. I was pulled up by my principal when I had cases withdrawn because, of course, once the case gets dropped the firm doesn’t make any money from it and I think that’s a short-sighted view. If you want to have a practice that’s successful and you know does the right thing and gets a good reputation, you need to get the results done in a timely manner and for a price that’s reasonable rather than trying to drag cases from court date to court date and doing very little in between. Historically, criminal lawyers have been known to push cases to a defended hearing in the local or district court or a jury trial in a higher court. Some of these cases should never reach those stages. Lawyers should try to negotiate with the other side to have such cases withdrawn.
Soon, I started wanting to open my own place which was focused on client satisfaction, getting results and getting the cases finished in a timely manner, rather than just turning cases over and getting as much money as you can from people. So that was my focus from when we started as Nedim Lawyers- Criminal Defence Specialists to later, when it became Sydney Criminal Lawyers. In my view, a person runs a criminal law firm should be looking at the firm in the long term, that is, developing a good reputation- getting good referrals from people who are happy about the outcome in their cases. And that comes through doing high quality legal work, rather than focusing on billing, billing, billing.
Where I came from was a background of seeing from the inside how criminal law firms work and trying to do things a little differently. When I first created a website at the end of 2001 very few firms had websites back then and now all firms have websites. In 2004, I published fixed fees, which no other criminal law firm had done. Others in the profession, including my former boss, weren’t happy because I was putting out there a certain price for a certain type of job and they saw as undercutting others, whereas I saw it as financial transparency. If you’ve got a criminal law case, traditionally the lawyer would sit down with the client and try to suss out how much money they can pay and give an estimate accordingly.
Nowadays, other firms also publish fixed fees for certain areas of criminal law, and I think that’s a good thing. Today, we include many other things on our Sydney Criminal Law website including many blog posts every week and we also run a NSW courts website and a number of other websites to give information to members of the public. The goal is, in my view, sharing legal information, having people know that you are trustworthy law firm, having people come to your law firm and doing the best job you can in every single case that’s going to get you good reviews it’s going to get you a good reputation and it’s going to really make you feel good at the end of the day.
I want you to elaborate a bit more on other ways that criminal law practice may have changed since you started back in the early 90s, and also what hints law students should take from that if they’re interested in going into this profession.
I think it has changed with the advent of various websites, especially with Facebook, social media, Google reviews, thankfully, firms are becoming more client oriented rather than before. Where before, if a firm didn’t do a good job for a client, they may have a upset client who will speak badly of them to a few people, now anyone can get on to Facebook or Google and really have a voice. And I think that’s a very, very valuable and positive and good check on law firms.
It’s also changing the way that students enter the criminal law. I think it’s a good idea to do your research before you apply at a particular firm or particular firms. You can get an idea of how reputable the firm is and their internal billing systems just by doing Google searches, or even on seek by reading comments from former employees.
If you are just coming into the law you might find that if you do work in a general practice, the area that you are drawn to may be different from the area that you thought you would have been drawn to. So for example someone might think that they like criminal law and they find that family law gives them the chance to do the best for children or they might find they might like certain aspects of civil or criminal law or even conveyancing.
I think it’s important to get some initial exposure to different areas to see what you actually like in practice, rather than in theory through law school.
The Sydney Criminal Lawyers blog has recently had articles, on discrimination on the grounds of sexuality on the need for a treaty with indigenous people and the media ratchet regarding the Sudanese crime wave. In the past you’ve interviewed indigenous activist Gary Foley and you also interviewed formal High Court Judge Michael Kirby. What is the vision behind being vocal on these kinds of issues and why do you think such figures would say yes to getting interviewed by a criminal law firm?
That’s a good question. I think that the mainstream media sensationalises issues a lot of the time and ignores a lot of very important issues a lot of the time. You mentioned the so-called Sudanese crime wave. You don’t really see in the mainstream media much scrutiny on the reports about whether that is correct or not, whether it’s fact or fiction. And, you know, when you read The Daily Telegraph, Sydney Morning Herald, 7 and 9 News, and all you tend to see is a clip of some Sudanese-looking young people running around, then you wouldn’t see that it was perhaps a different nationality of people actually just running around or something. I think it’s important to have the statistics and the proper research put out there to the public. That’s what we’ve tried to do in terms of keeping a check on media sensationalism and hysteria which politicians often try to capitalized on for votes or popularity.
In terms of interviewing people- people like Michael Kirby and indigenous former magistrate Pat O’Shane have a great amount of experience and insight in the criminal justice system. I believe their views on the criminal justice system and on how society should operate generally should be out there and they should be out there verbatim, rather than in the form of extracts.
And in terms of doing these articles on matters which such as racism and sexism in the criminal justice system and so on, I think it’s important to set the record straight in that regard, rather than to just look at things that are on the mainstream media.
Have you ever directly or indirectly received some pushback on the kind of post the firm has made given that they have some political dimension?
We receive a hell of a lot of inbox messages and posts or comments on our posts with negative commentary from people who disagree with what we’re writing and that’s especially in terms of people from nationalist perspectives and people who believe what the mainstream media are saying. And that’s just part and parcel of being out there, we don’t expect everyone to agree with everything we’re saying. Especially some of the posts that we put out there exposing police corruption or misconduct or brutality will get a lot of people stating that they disagree with us and far worse than that.
My response has been- ‘the more that you swear at us, the more that you tell us that we can’t report on this sort of stuff, the more resolved we are to report on this sort of stuff.’ These types of feedback aren’t going to get us to stop doing what we’re doing. I always remember that quote, maybe from Gandhi that goes ‘First they ignore you, then they laugh at you, then they fight you, then you win’ (interviewer’s note- this quote is often misattributed, and the earliest reported mention is from American labor union leader Nicholas Klein).
On the topic of fearlessness. Do you think that too many lawyers, especially junior lawyers, shy away from expressing their opinions on certain matters for fear of offending others in the profession?
I think that occurs throughout the profession, whether it’s junior lawyers or experienced lawyers. I know that lawyers have Facebook groups in which they express their opinions on certain issues but they won’t turn that into submissions or blogs on those issues.
This is probably more so with unior lawyers for fear of jeopardizing their career prospects. Yes, a lot of lawyers neglect to express how they feel on issues for fear of reprisals or negative feedback or offending people.
Do you think it’s important for people with strong opinions on certain matters to submit to public consultations? Do you see other ways?
Absolutely- there are a number of organizations who regularly submit on certain issues and I think that it’s very important that they do that and also that they publish what they’ve written to the public as well. Without those types of voices, parliament’s more likely to pass legislation which goes against the interests of certain groups. So I think it’s important to make those types of submissions. The concern that I have is we have two main political parties at the moment who share very similar views and are passing a lot of harmful legislation with bipartisan support. That comes through in our blogs.
I would hope that the people at the top the politicians will listen to those submissions more and act upon it more than they do. But these parties seem to agree on views that are not conducive to the protection of human rights. But even if a lot of these organisations feel like their submissions fall on deaf ears, they should put them out to the public, even mainstream media organisations, so that they can be heard. That’s what we try to do with the writers we have.
How important is diversity in a firm for producing a diversity of viewpoints?
Sydney Criminal Lawyers has a lot of gender and racial diversity. But it’s not only race, it’s also people with different levels of familiarity with Australian society, or other cultures. These people bring a lot of value to the firm.
The way that we speak with and get along with each other is how we hope other areas of the community could get along with each other. We get along with each other very well, whether it’s the admin, the lawyers or the writers, or the suppliers that we have, everyone gets along very well. And I think that not only does it enrich the firm to have people from different backgrounds, I think that it’s a rewarding experience to be within a practice that is so diverse who can talk to people not just about the law, but about the backgrounds about the insights into different areas of human behaviour based on their past experiences.
So what kind of reputation do you think criminal lawyers have among the broader populace? And to what extent is this influenced by the media?
Well clearly they don’t like us. All the movies show lawyers as greedy, as unethical, and generally as people who would do anything for their own purposes. I have been in the criminal law for a long period of time. Nothing can be further from the truth. I think that lawyers can be ethical in terms of how they conduct themselves within the courts and within general practice despite what I said about some law firms trying to a lot of money. I think that lawyers are ethical in terms of their obligations towards clients and towards the courts and I think that criminal lawyers aren’t generally greedy on an individual basis, although I think some firms are running their practice in a way that pressures lawyers and encourages greed. I think individual criminal Lawyers, for example, will meet their budgets because they have to meet their budgets or otherwise I’ll get in trouble but I think they are ethical towards the clients generally.
On the Sydney Criminal Lawyers blog there are a few articles on access to justice. Do you think there is an access to justice issue within the criminal law?
Definitely. Unlike in the United States where everyone has a right to legal representation in criminal cases in more serious criminal cases, and despite the fact that we have the case of Dietrich which essentially says that people who are charged with serious crimes in the District or Supreme Court need to be legally represented; despite all that, at a base level, especially at the local courts, there are a lot of people that are underrepresented because they do not have enough money to pay for a criminal lawyer and are ineligible for legal aid. So from between both of those ends, there’s a justice gap, there’s those 45,000 people or so per year who self-represent, according to the Law Council of Australia, because they can’t afford a criminal lawyer or a family lawyer. Often, they’re up against very well-funded professional prosecutorial teams and they might not even know the rules of evidence or how to present at the hearing. And that’s very unfair, and some might say ‘what the heck, I’m just going to plead guilty’. And that’s not justice. Because you can only get justice if you’re on a fair playing field.
Yes, in Australia, there is a significant problem in terms of access to justice. A lot of people are up against it.
If you would like to be interviewed or offer your thoughts on a recent event, book or article, please contact our Editor In Chief, Michael Bidwell.