Why you should consider moving interstate to kick start your legal career

Starting your legal career will be one of the biggest struggles of your life. In your penultimate year of law school, dozens of applications may or may not lead you to a clerkship. If you miss out, you might do another hundred applications to get a graduate job. Once you have secured a job, you will likely experience long working hours, new areas of law, and colleagues who may edge towards the “so functional they are dysfunctional” edge of the spectrum. Just surviving at work feels like a massive accomplishment. Why on earth would you add an extra level of complication like moving interstate away from your friends and family? In this blog post I explain how moving interstate could be the best way to kick start your legal career. It is time to get comfortable with being uncomfortable.

Why should I consider moving interstate for a legal job?

1.       You live in a state with a slow economy

This is the number one reason you may have to move interstate. There are significantly more legal jobs in Sydney and Melbourne, and in the graduate market where it is often a case of getting in enough applications, you may find moving interstate is your only option. If you manage to get a job locally, you may have to move interstate after a year or two to progress your legal career. I am from Adelaide but moved interstate to study at the University of Sydney. Most of my friends who stayed in Adelaide and went to law school at the University of Adelaide either moved interstate immediately on graduation or had to move interstate for career progression two or three years into their careers.

The states with the highest unemployment rates are South Australia (6.9%), Tasmania (6.5%), and Queensland (6.4%). The ACT and NT have the best employment rates at 3.8% and 4.1% respectively. These are general employment figures and are not specific to the legal sector, but give you an idea of the relatively poor employment prospects in SA, Tasmania and Queensland.

2.       The area of law you would like to practice in requires you to move interstate

If you are set on a career as a lawyer in the Commonwealth government, you will likely have to move to Canberra. You might as well move there immediately post-graduation so you can to build your networks and reputation. In Australia, legal jobs in mergers and acquisitions are practically non-existent outside of Sydney and Melbourne. Lawyers specialising the mining sector may have to move to WA or commute every single week. If you are interested in working in the community legal sector, you are more likely to get a job in Melbourne than Sydney. Identify the area you would like to work in and go for it, regardless of where it is located.  

3.       Your firm has offered to place you on an interstate project

If you are working at a national or global firm, you may be placed interstate for six to twelve months to assist busy teams on larger projects. You may be “asked” whether you would like to relocate, but in reality if you do not take this opportunity you need to consider whether you are serious about your career. Working on large projects is fantastic for your resume, and can help you justify pay rises and promotions. You will also have the opportunity to network with lawyers and clients interstate and learn about the law in new jurisdictions.

4.       You practice across jurisdictions and need to develop your legal knowledge

It is not uncommon for practitioners to operate across jurisdictions, and if you work in state based employment law or property you may want to work in a different jurisdiction for a while to enhance the services you can provide to clients who operate across jurisdictions.

5.       You are in your mid-20s and still live at home

A typical scenario is as follows: You were born in Sydney, went to school in Sydney, went to university in Sydney, got a graduate job in Sydney, have never moved out of home and still live with your parents despite being in your mid 20s. Living at home is a nice cushy experience when you are working long hours. It is pretty convenient to come home to dinner every night, have your bills paid for and never run out of clean socks. You are best friends with your parents and are secretly scared your Mum will never let you move out. If you fall into this category it can be difficult to move out and your life can begin to feel stagnant. Moving interstate is a fantastic excuse to move out of home without causing offence or fuss. Even if it is just for 12 months, your family will get used to the new state of existence and you can move back to your home city (if you want to after experiencing the intoxicating pleasures of interstate life) without being pressured to move back home.

6.       You want to get outside your comfort zone

Moving interstate to a city where you know no one to start a new job where you know no one is intimidating for most people. This is a good thing – see next paragraph.

The flow on effect of getting outside your comfort zone

Conventional wisdom is that making easy incremental adjustments is best for long term change. Moving interstate is the complete opposite of this approach. You will be making many massive life changes at once. Starting a new job, moving house, and having to make new friends are some of the most stressful situations a person can live through. You have to put the effort in or you just are not going to be a success. For me, the “shock” of dealing with all of these new situations at once had an amazing flow on effect on other aspects of my life. The extra effort I had to put in at work and into starting a friendship group from scratch when I moved to Melbourne meant I also put extra effort into other aspects of my life. It helped me think more clearly about where I want to go as a lawyer, make a long term career strategy and be a hyper organised individual. Getting outside your comfort zone will not only make you a better lawyer, but have a positive flow on effect to other areas of life. After you conquer moving interstate, your confidence will gradually develop and other obstacles in your life will seem easy to overcome.

Is it difficult to get a legal job interstate?

The difficulty of getting a job interstate will depend on the recruitment market in your target city (Adelaide, Hobart and Brisbane have average economies and relatively stagnant recruitment markets) and the type of law you would like to practice. Prior to moving to Melbourne I applied for jobs in four different states. There does appear to be local favouritism to some extent as I received many more interviews in Sydney where I was living than in Melbourne. The smaller the city, the more there appears to be bias towards recruiting locals. However, where you are passionate about moving because the job is your dream job, you will likely be one of the best candidates. The fact you are willing to move interstate for this job speaks volumes about your commitment.  

Don’t hold back

Moving interstate to a new city is not a life-long sentence. If it does not work out you can move back to your old life and get a job in your home city. But if you never take the opportunity and never try to get that dream job, you might miss the opportunity to kickstart your legal career.    

Scared? Good. Now back yourself and make the move. No one else can do that for you. 

Attwells v Jackson Lalic Lawyers [2016] HCA 16 – High Court rules on the advocate’s immunity from suit

On 4 May 2016 the High Court handed down its decision on whether to extend the advocate’s immunity from suit to situations where negligent advice is given which leads to the settlement of a case by agreement between parties and consent orders. This case summary has been written for junior lawyers working in litigation and law students studying Ethics and the Legal Profession.

The advocate’s immunity from suit

The two High Court precedents on advocate’s immunity are:

1.       Giannarelli v Wraith (1988) 165 CLR 543

The advocate’s immunity was said to extend beyond conduct of a case in court to “work done out of court which leads to a decision affecting the conduct of the case in court” (at 560). Mason CJ described two tests for determining whether work outside of court will attract the immunity:

a.       “work done out of court which leads to a decision effecting the conduct of the case in court” (at 559)

b.      “where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing” (adopted from the New Zealand case of Rees v Sinclair [1974] 1 NZLR 180) (the “intimately connected” test).

In D’Orta the High Court held that these two tests are essentially the same.

2.       D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 (applying Giannarelli)

In D’Orta, the High Court confirmed there are two categories where the immunity arises (inside of court and outside of court) and approved Mason CJ’s scope of the immunity for work occurring outside of court. The High Court held the immunity applied in the facts before it where an accused was given negligence advice to plead guilty, as the acceptance of this advice to plead guilty effected the determination of the case by the court as the court cannot conclude its function until a conviction is recorded, and the decision about a plea of guilty is intimately connected to the hearing of a criminal case as it is a decision made preliminary to the hearing of a charge which effects the conduct to the matter before the court.

Facts in Attwells v Jackson Lalic Lawyers

Gregory Attwells was a guarantor of payment of liabilities of a company to a bank. The company defaulted on the payments and the bank commenced proceedings against both the company and the guarantors (see Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335). The guarantors were represented by Jackson Lalic Lawyers in the proceedings. Proceedings settled (on what turned out to be negligent advice from Jackson Lalic Lawyers). The settlement was reflected in consent orders. The negligent advice from Jackson Lalic Lawyers included that the guarantors would be liable to pay the bank $3,399,347, when the guaranteed amount was $1,856.122, and the guarantors were not liable to pay more than this amount. The guarantors signed the consent orders based on this advice. The guarantors commenced negligence proceedings against Jackson Lalic Lawyers in the NSW Supreme Court, where Smchmidt J ordered that the question of whether Jackson Lalic Lawyers is immune from suit be decided separately from the other issues in the negligence proceedings.   

Legal question

Does the advocate’s immunity extend to negligent advice which leads to the settlement of a case by agreement between the parties?

Court of Appeal - Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335

The Court of Appeal held that Jackson Lalic Lawyers’ advice was within the scope of the immunity as the advice fell into the category of work done out of court affecting the conduct off the case in court, that the advice was intimately connected with the conduct of the guarantee proceedings.

High Court

The High Court held 5:2 that the immunity does not extend to negligent advice that leads to a disadvantageous settlement, even where the settlement is made into consent orders. Nettle J and Gaudron J dissented in separate judgments.

French CJ, Kiefel, Bell, Gageler and Keane JJ (the majority judgment):

a.       Intimate connection – look to the policy reason behind the immunity

The High Court majority began its analysis by identifying the policy reason behind the immunity. The rationale behind the advocate’s immunity is that the community at large has a vital interest in the final resolution of decisions by judicial determination, and that after a judicial determination has been made, it should not be open to collateral attacks seeking to demonstrate that a judicial determination is wrong ([34]). The immunity exists to protect the public interest in the finality of judicial decisions ([35]). This rationale is why the scope of the immunity is limited to conduct of the advocate which contributes to a judicial determination ([37]). The Law Society of NSW (as an intervener in proceedings) submitted that the immunity should be extended otherwise lawyers will not encourage their clients to settle their claims, as they will not have immunity from protection ([52]). The High Court rejected this argument, as it does not accord with the primary policy reason for the immunity.  Extending the immunity to advice which leads to the settlement of litigation takes the immunity away from its primary rationale, which is to protect the exercise of judicial power from collateral attack. The “intimate connection” between the advocate’s work and the conduct of the case in court must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision.

b.      Historical connection alone is not sufficient

The joint judgment discussed what would constitute an “intimate connection”, distinguishing “merely historical connections” from “functional connections” ([49]). The Law Society of NSW submitted that negligent advice not to settle is intimately connected with an ensuing judicial decision of the court so as to attract the immunity. The High Court rejected this “historical connection”, stating it is not sufficient that one event precedes another event to create an “intimate connection”. The “intimate connection” discussed in Giannarelli and D’Orta is a “functional connection” which is the connection required by the public policy reason for the immunity.

c.       Consent orders

The settlement was embodied in consent orders, and the respondent argued that this involvement of the court was sufficient to constitute an “intimate connection”. The High Court rejected this argument, as the substantive content of the rights and obligations in the consent orders were determined by the parties without any determination by the court. The terms of the settlement agreement “were not, in any way, the result of the exercise of judicial power”. The High Court left the question open as to whether it would be different in situations where “the making of the order itself requires the resolution of issues by the exercise of judicial power” such as where representative proceedings are settled or where proceedings on behalf of a person under legal incapacity are to be compromised.

The dissenters

Gordon J held that the advocates immunity does extend to negligent advice leading to settlement where the agreement is reflected in consent orders. Gordon J focused on a different aspect of the plurality’s judgment in D’Orta, being that the immunity plays a part in a series of rules which are “designed to achieve finality in the quelling of disputes by the exercise of judicial power” ([100]), equating the final quelling of disputes with “work intimately connected with” work in the court, and proceeded to focus on the final quelling of disputes rather than the intimate connection test the plurality focused on. While the majority distinguished Attwells v Jackson Lalic Lawyers from D’Orta, Gordon J argued that both cases involved a final quelling of the outcome, in that both admissions were given legal effect by authority of the court – in one case by entry of conviction, and in the other by entry of verdict and a judgment. Gordon J was careful to analyse the orders made by the court. Orders 1-9 constituted orders of the court recording a verdict and judgment made, whereas paragraphs 10 onwards in the orders merely noted the agreement made between the parties. The verdict and final judgment contained in Orders 1-9 constituted a final quelling of a controversy by exercise of judicial power which attracts the advocate’s immunity from suit.

Nettle J agreed with Gordon J’s reasons for dissenting, focusing on the final quelling of a dispute by judicial power. Even where the parties are agreed on the orders which should be made for the final determination of their rights and liabilities, it remains for the court to be satisfied that it is appropriate to do so to order, which involved judicial power and attracts the advocate’s immunity. 

Jurisdictional facts – what are they and why do we care?

Jurisdictional fact review is taught quickly at law school and soon forgotten altogether as students focus on more common grounds for judicial review. If you find yourself working in administrative law as a graduate, you may need to brush up on your knowledge. Read this blog post then go forth and impress your team with your understanding of a niche but important area of law.

Why do we care about jurisdictional facts?

As a rule of thumb, a factual error is not a ground for review of a decision. An exception to this rule exists for jurisdictional facts. Where an error has been made about a jurisdictional fact, this is a ground for review of a decision at common law. Jurisdictional fact review is unique in that the reviewing court can receive fresh evidence. For other grounds of review, the reviewing court is stuck with findings of facts made by the decision maker, as questions of fact are seen as belonging to the merits, and the task of a court is to inquire into the legality of the decision (this is known as the merits/legality distinction). In jurisdictional fact review, the evidence before and reasoning of the administrator in fact finding can be reviewed by the court and the existence of facts can be determined afresh. Jurisdictional fact review is an important ground of review to remember because of this opportunity it gives the review court to go beyond the merits/legality distinction.

How to identify a jurisdictional fact

Broadly speaking, a jurisdictional fact is a factual circumstance that must exist prior to a decision being made. A jurisdictional fact might be a certain event or requirement that must occur before a decision is made.  In Timbarra (see key cases below for summary) Spigelman CJ stated there are two factors to consider when determining whether a fact is a jurisdictional fact:

1.       Objectivity: Did parliament intend that the fact must actually exist or be objectively determined as opposed to the decision maker just been satisfied in something? If the act refers in objective terms to the belief, satisfaction would indicate subjectivity rather than objectivity. Note that when Spigelman CJ refers to parliament’s intention he is referring to the intention as evident from the words parliament chose to use in the text of the legislation. While the Explanatory Memorandum and other aids can be taken into account, normal principles of statutory interpretation apply and the starting point is always with the text of the statute.

2.       Essentiality: Did parliament intend that the absence or presence of the fact will invalidate the action. One important factor which is often determinative is whether the fact is preliminary to the exercise of power or arise in the course of exercising the power, if the fact is preliminary to the exercise of the power is not likely to be essential.

A jurisdictional fact will form the basis for judicial review of the decision if it does not exist or has been made in error.

Hypothetical examples:

1.       If legislation states a tribunal can only exercise its powers when sitting on a Wednesday, the fact that it is a Wednesday may be a jurisdictional fact;

2.       If legislation states a person must be convicted of a crime before a decision to revoke a visa can be exercised, the fact a person has been convicted of a crime may be a jurisdictional fact.

Do not confuse a jurisdictional fact with:

1.       A jurisdictional requirement

A jurisdictional requirement is a precondition that must be met before a valid decision can be made. Where a jurisdictional requirement is not met it may cause a jurisdictional error which is a ground for review. If you want to revise jurisdictional requirements the High Court’s discussion of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163 (Craig) is a must read.

2.       A jurisdictional opinion

Do not confuse a jurisdictional fact with a jurisdictional opinion (see Spigelman CJ’s objectivity/subjectivity distinction above). As Aronson, Dyer and Groves put it in Judicial Review of Administrative Action (4^th ed) a jurisdictional fact “is purely factual”. Note though there are differing opinions on how “purely factual” an opinion must be (see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 per Gummow J). If you do not understand the difference between a jurisdictional fact and a jurisdictional opinion, you may want to go right back to basics to review the difference between a fact and an opinion and then go from there. Where you have a jurisdictional opinion, not a jurisdictional fact, the normal principles of reviewing a subjective power will apply and the court cannot accept evidence and decide whether the relevant subjective criterion was met.

Key cases

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (Enfield)

Facts:

The case of Enfield concerned the expansion of waste treatment plant. The developers had applied to the Development Assessment Commission (DAC) for approval of their expansion plan, which the Local Council strongly opposed. Where a development proposal could be classified as “special industry”, the development application required the consent of both local Minister and Council. The Local Council argued that the extension of the waste treatment plant was “special industry” as it would create smells and allow smells to escape to nearby land. The DAC considered the evidence about smells, formed the view the development was not a “special industry” and approved the application.

Legal issue:

Whether the “special industry” requirement was a jurisdictional fact or an opinion.

High Court:

Found that the characterisation of a proposed development as a “special industry” is a jurisdictional fact, as the legislative regime did not frame the requirement in terms of an opinion and the question of whether a development was a “special industry” played a pivotal role in the development approval scheme, as it was a trigger for public participation and other requirements. The “special industry” requirement was framed objectively as something to be objectively determined.

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 5 (Timbarra)

Facts: Ross Mining submitted an application to extend one of its goldmines. The legislation required a Species Impact Assessment (SIA) to be submitted with the application where the development was “likely to significantly affect threatened species”. Ross Mining did not submit a SIA, as it argued the development was not likely to significantly affect threatened species. Timbarra Protection Coalition, a lobby group, argued the mining development was likely to significantly affect a number of threatened species including frogs, bats and owls, therefore no “application” had been made and the council could not approve the application as a jurisdictional fact did not exist.

Legal issue: Whether the requirement to submit an SIA where the development was “likely to significantly affect endangered species” was a jurisdictional fact and whether fresh evidence as to the fact could be considered by the reviewing court.

First instance – NSW Land and Environment Court, Justice Tolbert:

Held there was no jurisdictional fact and no fresh evidence could be heard.

NSW Court of Appeal:

Found there was a jurisdictional fact and fresh evidence could be heard by the reviewing court. The legislation was expressed such that the SIA had a pivotal role in the statutory scheme as it ensured detailed information was available to decision makers. The submission of an SIA was necessary before consent was granted or not. Weighing against these factors was that reasonable minds could differ about whether a development would “significantly affect” endangered species. However, the Court of Appeal found the requirement was sufficiently objective and was therefore a jurisdictional fact. The matter was remitted back to the Land and Environment Court to hear fresh evidence about the significant affect of the development on endangered species.

Good luck identifying jurisdictional facts. Don’t be disheartened if you do not understand jurisdictional fact review or if you get confused between different grounds of review. I certainly did not understand the concept five years ago when I first encountered administrative law as a law student. Keep at it.

Law graduate who can’t find full time legal job sues law school - Is the United States trend of law graduate law suits about to come to Australia?

In the United States, disgruntled law graduates who have been unable to secure legal jobs have been bringing claims against their law schools under state consumer laws, which vary from state to state. Anna Alaburda’s case against the Thomas Jefferson School of Law (TJSL) which is currently before the San Diego Supreme Court could be more successful than other cases, as the consumer laws in California are believed to be more favourable to consumers than consumer laws in other states. Australian law graduates have been facing similar challenges to their American counterparts, with an increase in the number of law students graduating and a sluggish legal recruitment market creating an increasingly desperate situation. Could the trend of law graduates suing their law schools spread to Australia?

Previous cases in the United States

There have been a number of previous cases in the United States where law students have claimed their law school provided misleading statements on employment prospects for their law graduates. In the 2012 New York Supreme Court case of Alexandra Gimez-Jiminaz, et al v New York Law School, nine graduates of New York Law School brought a case claiming the entering classes of 2005-2010 had been misled as by graduate outcome statistics provided by NYLS, as facts were omitted that would have given prospective students a more accurate picture of post-graduation employment prospects. The 90% employment outcome advertised included graduates working in part time jobs and those working in jobs that did not required law degrees. The damages sought were the sum equal to “the difference between the alleged inflated tuition they paid because of the allegedly misleading statements and what they characterise as the “true value” of a NYLS degree, together with certain expenses incurred”. Many of the plaintiffs had successfully started their legal careers, including:

1.       Alexandra Gomez-Jimenez who had her own thriving immigration practice;

2.       Scott Tiedke who worked as a legal compliance officer at an investment management firm;

3.       Gergana Miteva who worked as a contract attorney for some time before finding full time legal employment; and

4.       Geoffrey Corsideo who worked at a New Jersey law firm.

Justice Schweitzer dismissed the case, citing the legal principle caveat emptor “buyer beware”, and that prospective law students are “are a sophisticated subset of education consumers, capable of sifting through data and weighing alternatives before making a decision regarding their post college options”.

Anna Alaburda’s Case

Anna Alaburda is a 37 year old TJSL graduate who completed her three year Juris Doctor in 2008 and had a student debt of about $150,000 on graduation. Alaburda struggled to find full time employment as a lawyer and felt misled by the employment prospect figures she claimed were decisive to her enrolling in the JD program at TJSL. In 2011 she filed her initiating application, claiming the TJSL statistics about alumni employment outcomes were misleading and had been inflated and that she would not have studied the JD at TJSL if she had known the true statistics. The matter took until 7 March 2016 to get to the San Diego Superior Court, as the law school made a number of applications to have the matter dismissed. Alaburda, who is currently 37 years old, has a student loan debt of about $170,000, as the interest rate on the loan is 8%.

What is the real issue?

While we can all feel sorry for Alaburda and her colleagues, the law suit distracts from the real issues. First, there needs to be some degree of personal responsibility, as people are not forced to enrol in postgraduate law. Second, there is currently a large surplus of universities offering undergraduate law and postgraduate law courses, and the quality of many of these courses is questionable. Steps need to be taken to prevent even more surplus positions at law schools becoming available and to ensure all law schools offer a quality education.

1.       Ranking and reputations of law schools

The first thing to note about Alaburda’s case is her choice of law school. TJSL ranks extremely poorly in comparison to other universities offering the JD course in the United States. The law school rankings given to TJSL are so poor that the US News Law Ranking system do not publish the rankings for TSJL and a number of other poorly performing universities (presumable to protect themselves from defamation claims). Students are aware of the ranking and reputation of their law school prior to enrolling. Students studying law are also aware that it is difficult to get a job as a lawyer and that not all graduates work as lawyers after completing their JD. Getting a job as a graduate lawyer in the United States is difficult and employment rates are far from 100%. For example in 2014, 40% of law graduates across the United States did not secure a job in the law within 12 months of graduation. While this would include graduates who do not wish to practice law, this 40% would also include a large number of graduates who want a legal career.

Similar cases to Ms Alaburda’s never made it to trial in states like Illinois and Michigan as the judges managing the cases in those states concluded law students chose to have a legal education at their own risk. Alaburda would have been aware of the difficulties of obtaining employment in the law prior to starting her JD. While Alaburda had solid grades and graduated near the top of her class, even top students would struggle to get a job after attending a law school with such a low ranking reputation. Further, while Alaburda has yet to find a full time job in the law, she failed to make the most of opportunities that arose.

2.       Not taking opportunities

On graduation, Alaburda sent her resume to 150 law firms. This is not out of the ordinary for a law graduate given the state of the legal market, though other students take the approach of quality over quantity of applications. She received several interviews and one job offer. This is more success than a number of law graduates have. She turned down the legal job as the salary ($60,000) was less than for non-legal jobs she had applied for. To me, this is a clear case of a graduate choosing a non-legal path. I have no sympathy, and neither should the courts, for law graduates who turn down an offer other law graduates would do anything for, and then later claim they could not get a legal job. The starting salary for law graduates can be relatively low, as a law graduate must be trained before they become self-sufficient and useful. Salaries quickly rise for competent graduates.  Alaburda later worked in a series of part time, temporary legal positions mainly reviewing documents for law firms, found this work unsatisfactory, could not get a full time position and filed an initiating application against TJSJ.

3.       Realities of working as a junior lawyer  

It is not unusual for junior lawyers to do copious amount of document review, discovery and due diligence related work as graduates. The reality of working as a junior lawyer is that most of the work will be less than exciting, especially when working at a large law firm, but quickly becomes more engaging as you are trusted with more complicated legal work and the next generation of graduates take on the more boring work. Alaburda had a series of part-time document review roles and found this boring. However, this kind of work is the reality for most law graduates.

Will the trend of law graduates suing their law schools spread to come to Australia?

Many of the factors leading to law graduate law suits in the United States are currently present in the Australian legal market:

1.       Increasing number of law schools offering sub-par courses

The number of law schools offering undergraduate and postgraduate law has increased significantly in the past 10 years. In NSW alone, the following law courses were accredited:

·         JD at the University of Sydney (2010);

·         JD at the University of NSW (2009);

·         JD at the University of Technology Sydney (2007);

·         JD at the University of New England (2005);

·         JD at the University of Newcastle (2013);

·         JD at the University of Notre Dame (2006);

·         LLB at the University of Notre Dame (2005);

·         LLB at the Australian Catholic University (2013); and

·         LLB at the Top Education Institute (2014).

The pattern in other states is similar. Law schools are easy to establish and tend to be high profit earners for universities, as they are low cost compared to other degrees. It is not just the increase in educational institutions offering law courses that is problematic but the quality of the courses, especially given the significant expense of postgraduate courses in particular.

2.       Increasing number of law graduates

The increasing number of law schools and expanding of programs offered by existing law schools has created a large excess of law graduates. I personally have several issues with the number of law graduates churned out of law schools. However, growth in the number of law graduates is unlikely to change, as the Productivity Commission’s Review into Demand Driven Funding System recommended that law schools’ numbers not be limited.

3.       Increasingly competitive to get a job as a lawyer

At the same time the number of law graduates has increased, the legal markets has stagnated and large law firms that traditionally employed large numbers of graduates have either reduced or maintained the number of graduates they employ. New entrants into the legal market, such as LegalVision are offering new opportunities for graduates, but there is still a significant gap between law graduates wanting to work as lawyers and positions available.

However, there are a number of factors that might prevent the spread of law graduate law suits in Australia:

1.       Less financial pressure

Law graduates in the United States face significant pressure on graduation to begin paying off their $150,000 loans, which usually have an interest rate of 8%+. Australian students do not face the same pressures, as a Commonwealth supported undergraduate combined law student will graduate with a debt of about $50,000 which need only be repaid in increments once the student has graduated and is earning a significant amount of money. Australian graduates therefore do not face the same financial pressures as their counterparts in the United States and are more likely to be able to survive part time and paralegal work for some time before securing a full time legal position, not succumbing to the temptation to accept a higher paying non-legal job. In the United States, graduates face more pressure to get a high earning job immediately to pay off their loans, even if the job is non-legal.

2.       Less focus on graduate outcomes during student recruitment

Law schools in Australia are generally very careful with statistics regarding employment prospects. Students are normally lured via alumni success stories and a university’s reputation rather than a focus on statistics. There is also a lack of statistics on law graduate outcomes available. Graduate Careers Australia undertakes an annual survey of short term outcomes for graduates 4 months after completion of qualifications (http://www.graduatecareers.com.au/research/researchreports/gradstats/). These statistics are for all graduates and do not provide university by university data. A response of “full time employment” includes full time employment not related to the person’s degree. There is a breakdown by bachelor degree, and in 2015, 74.1% of law graduates who completed the survey were engaged in full time work at the time they completed the survey, about 4 months after the completion of their qualifications.   

3.       Difficulties bringing a claim under Australian consumer law

Even if a law graduate did wish to commence legal action, it would be very difficult to bring successful action under Schedule 2 to the Competition and Consumer Act 2010, as the lead possible cause of action being misleading or deceptive conduct (s.18 Australian Consumer Law) requires the conduct to be “likely to mislead or deceive”. The test requires the identification of the audience, in this case, relatively intelligent, well-educated persons considering enrolling in undergraduate or postgraduate law. It would be difficult to mislead or deceive this target audience, as potential law students would generally consider several law schools and be aware of the general reputation and quality of the law school. The test is objective, so the fact a student was actually mislead or deceived will not be determinative if the relevant population segment would not have been misled or deceived.

It is unlikely the trend of law graduate litigation will spread to Australia. However, if the number of law graduates continues to increase and the legal graduate market fails to improve, we could see law graduates take legal action against their law schools in the future. 

Lessons to learn from Finberg v Efron [2015] FCCA 2470 – underpaid law student takes employer to court

The exploitation of law students in an increasingly competitive graduate environment is a growing issue. In Finberg v Efron [2015] FCCA 2470, a law student successfully took the law firm he worked at to court for underpayments and other breaches of the Legal Services Award 2010 (LS Award) and the Fair Work Act 2009.

Facts

Saul Finberg was a Melbourne law student who worked at a small law firm Efron and Associates run by a sole practitioner Graeme Efron whilst studying his final year of his Bachelor of Laws and Bachelor of Arts. Finberg worked at Efron and Associates for almost a year from 5 March 2013 to 7 February 2014. Finberg commenced action for underpaid wages, among other things in mid-2014.

What did the law student claim?

Like most law students working in a quasi-legal capacity at a law firm whilst studying, Finberg was covered by the LS Award. See this previous blog post for a summary of the LS Award - http://lawgradinpink.blogspot.com.au/2015/07/law-graduates-and-paralegal-working.html . Finberg claimed the following:

1.       Unpaid wages under clause 14 of the LS Award;

2.       Unpaid superannuation contributions in accordance with clause 23 of the LS Award;

3.       Unpaid annual leave loadings on accrued annual leave in accordance with clause 23 of the Award;

4.       Unpaid accrued annual leave and annual leave loading which was meant to be paid out when the employment terminated.

These four items amounted to a sum of $28,882.83. Interest on this amount was also claimed.

In addition, Finberg also brought action under the Fair Work Act 2009 for breaches of:

1. s.536 – failure to provide payslips with prescribed content and in the prescribed form; and

2. s.535 – failure to maintain employee records in accordance with the Fair Work Act and Regulations.

The employer’s behaviour

Efron and Associates’ initial behaviour was abysmal. The law firm denied the law student was even employed by them and claimed the law student was on a work experience placement. By the time the final hearing occurred, the employer had conceded the law student was an employee and that the LS Award applied.

Consideration by the Federal Circuit Court

1.       Breach of LS Award and Fair Work Act 2009

Judge Jones first considered which classification in Schedule B to the LS Award the law student fell under. The employment relationship had commenced after the law student approached Efron and Associates with a view to gaining experience in a law firm. The law student was given a range of administrative tasks and legal tasks which required legal knowledge and the application of legal skills. The dispute between parties concerned the award classification the law student was employed under, as there was disagreement about the extent of legal tasks performed, and the level of legal skill required.

Judge Jones came to the view that while the law student prepared legal research memoranda and briefs to Counsel, this was limited and involved the exercise of basic legal skills. Any other duties such as attending a property settlement unsupervised, were one off, and still required only basic legal skills. The legal work the law student undertook was of a limited and basic nature.

The employee submitted that his employment was Level 5 – Legal, Clerical and Administrative employee, while the employer asserted Level 2 or Level 3 was the applicable level. Judge Jones decided the appropriate classification was Level 4 – Legal, Clerical and Administrative employee, as the law student’s legal skills best fitted this category, and the employee was able to initiate research and engage in some tasks such as preparing Court books and maintaining files in a reasonably independent way.  Judge Jones then looked at the breaches of the Award:

A.      Minimum pay

Finberg was initially paid $9.62 an hour, until June 2013 when he was paid $10.13 an hour. The current minimum rate of pay under the LS Award for Level 4, Legal, Clerical and Administrative for a part-time employee is $22.32 per hour. This hourly rate would have been slightly less when Finberg was employed at Efron and Associates, but what Finberg received would still have been gross underpayment.

B.      Superannuation

As the employee was grossly underpaid, superannuation contributions were also below the amount required under clause 23 of the LS Award.

C.      Annual leave

Finberg was entitled to be paid out for accrued annual leave under s.90(2) of the Fair Work Act 2009 and the annual leave loading that accrued under clause 35.3 of the Award.  

2.       Breach of s.535 failure to maintain employee records

Section 535 requires an employer to make and keep for 7 years employee records of the kind prescribed in the regulations. Judge Jones was not presented with any probative evidence by the employer that s.535 had been complied with, so made the inference that s.535 had been breached.

3.       Breach of s.536 failure to provide employee pay slips

Finberg was not provided with any payslips until June 2013, which is a clear breach of s.536 which provides “an employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work”.

Law student had to pay the employer’s costs for Application in a Case for summary judgment

The costs question related to an Application in a Case heard by the court on 26 August 2014. The Application in a Case was an application for summary judgment under s.17A of the Federal Circuit Court of Australia Act 1999. Section 17A sets a very high bar for summary judgment to be made. The Court must be satisfied that the defendant has no reasonable prospect of successfully defending the proceeding or part of the proceeding. While the section states “no reasonable prospect of success” does not necessarily mean “hopeless” or “bound to fail”, the threshold for obtaining a summary judgment is high. On 26 August 2014 Judge Jones determined that there was not sufficient information to find there were no reasonable prospects of the law firm successfully defending the proceedings, and there was evidence that needed to be ventilated at trial. The law firm then pursued a costs order, under s.570 of the Fair Work Act 2009 which provides a party may be ordered to pay costs only if the court is satisfied that:

(a)    the party instituted the proceedings vexatiously or without reasonable cause; or

(b)   the party’s unreasonable act or omission caused the other party to incur the costs.

The Federal Circuit Court found (b) was satisfied. Key issues were in dispute, such as the classification of the employee, duties performed by the employee, and it could not be said the law firm had no reasonable prospects of success of defending proceedings. The law student had to pay $1,706 in costs for the Application in a Case. The law student was represented, and could potentially commence action in professional negligence against the law firm who advised to file an Application in a Case for summary judgment.

Outcome

The parties were to negotiate consent orders reflecting the breaches found by Judge Jones and the law student was to pay the employer $1,706 for the erroneous Application in a Case.

Lessons to learn

·         Do not assume you are being paid correctly by your employer. If you are working in a clerical or paralegal capacity while studying it is likely you are covered by the LS Award. To calculate rates of pay, you can use the Fair Work Ombudsman’s Pay Calculator http://calculate.fairwork.gov.au/findyouraward.

·         Read the LS Award and understand what your entitlements are. For example, if you are covered by the LS Award and are working a full day, you are entitled to a meal break of between 30 minutes and 60 minutes (clause33).

·         Do not assume that because you are a law student you will be able to successfully manage a case against your employer yourself. The Fair Work Ombudsman can commence litigation on your behalf using their enforcement jurisdiction.

·         Applications for summary judgment are rarely successful and should only be made if certain you will pass the threshold test, as it is likely costs will be awarded against you if your claim is unsuccessful. 

·         In dealing with breaches of s.535, failure to maintain employee records, the Federal Circuit Court used the fact that pay slips were not provided to the employee and the fact the employer provided no evidence to the contrary despite being put on notice to conclude s.535 had been breached. This appears to be a reverse onus of proof on the employer which is not reflected in the wording of s.535.

This blog post does not constitute legal advice. If you believe you are in a situation where you have been underpaid you should seek your own independent legal advice. 

Surviving imposter syndrome as a junior lawyer

You have spent 5 years at law school, another year at College of Law and 2 years on your probational practising certificate. You are a competent and successful junior lawyer and often receive praise for your work. Yet, you can’t quite shake that feeling that you are faking it, you got there by luck, and soon someone will find out that are not as capable/talented/smart as they think. This pattern of thinking is known as “imposter syndrome”. 

I am not a psychologist and I am not providing medical advice in this blog post. The purpose of this blog post is to share my experiences to help other junior lawyers identify and overcome imposter syndrome thoughts. 

What is Imposter syndrome?

In a nutshell, a person with Imposter syndrome feels inadequate despite significant evidence to the contrary. Others might see you as a successful, competent and smart law student, but you think you are inadequate and are just posing as a successful, competent and smart law student.

Psychologists Pauline Rose Clance and Suzanne Imes were the first to describe the imposter phenomenon in the 1970s. Imposter syndrome is not a diagnosis on the DSM, but has been identified as a very specific form of self-doubt that can be accompanied by other feelings such as anxiety and depression. Imposter syndrome is not an “all or nothing” condition, and junior lawyers can suffer from imposter syndrome in some aspects of their thinking or behaviour and not others.

Examples of thoughts and behaviour common to imposter syndrome:

1.       Feeling like a fake

You might feel like you got your graduate job because you managed to fool your interviewer into selecting you, despite the fact that you got the job because you performed well in two rounds of interviews and a written exam. You might also fear that you will be “found out” and kicked out or believe that you give the impression you are more competent than you are. You might question whether you are prepared for your graduate job and worry about the work you might be given.

2.       Attributing success to luck or external factors

You might believe it was luck that got you into law school. When you get a D or HD in an exam, you say you “got lucky” or point to something external like the assistance your friend in 5^th year gave you. People who find themselves with these thoughts might have significant fear they will not be able to succeed next time they have to complete a similar task.

3.       Discounting success

This category includes discounting achievement. For example, if you won a subject prize for Contracts and you say “it wasn’t that important” or “my tutor was an easy marker”.

What causes Imposter syndrome?

The research is mixed on the causes of Imposter syndrome. Clance and Imnes original research identified family dynamics as the main cause. To me, this seems quite Freudian, but I will very briefly outline the Clance and Imnes causes regardless:

1.       Family labels

For example, where children within a family are labelled differently, i.e. as “intelligent”, or “sensitive”. The child labelled “sensitive” can be lead to doubt her intelligence, even in the light of evidence to the contrary.

2.       Family messages of superiority

For example, where a child is over supported and is led to believe she is superior. Challenges arise which the child may find difficult, leading her to feel deceived by her family and leading to the development of the belief she is average or below average.

3.       Focus on achievement

Imes’ original research stated that a focus on achievement can confuse love, approval and self-worth, with self-worth becoming contingent on achievement. A familial focus on achievement can see mixed messages of over-praise and criticism, leading to imposter thoughts developing.

Additionally, being female can increase your chances of imposter syndrome thoughts. Originally in the 1970s, imposter syndrome was considered a female only phenomenon. Subsequent research has shown men also experience imposter syndrome, though “gifted” females are the group most likely to experience imposter syndrome. Other research has shown people from minority groups are also more likely to suffer from imposter syndrome.

Why junior lawyers are particularly susceptible to imposter syndrome

There are several reasons why junior lawyers commonly experience imposter syndrome:

1.       Imposter syndrome is commonly associated with high achievers

Undergraduate law courses at top universities tend to attract high achievers.

2.       Junior lawyers are embarking on new endeavours

Imes research showed that graduates are particularly susceptible to imposter syndrome as they are often asked to undertake tasks they may believe they are not ready to handle. Practising law is very different from studying law at University, and the challenging nature of the transition can cause imposter thoughts to develop.

3.       Imposter syndrome is commonly associated with perfectionist personalities

Perfectionist personalities are abound at law school and in the legal profession. The impostor phenomenon and perfectionism often go hand in hand, leading to the person either procrastinating, as they believe they will never be able to complete the task to high standards or over preparing and spending much more time on the task than is necessary.

4.       Female young professionals tend to attribute success to external factors

Attributing success to external factors can be a sign of imposter syndrome. Female professionals are more likely to attribute success to external factors than male colleagues. In Lean In, Women, Work and the Will to Lead (a book everyone should read), Sheryl Sandberg describes how women consistently underestimate themselves and how this pattern has serious long-term consequences. The following quotes were taken from the chapter “Sit at the Table”:

“For women, feeling like a fraud is a symptom of a greater problem. We consistently underestimate ourselves. Multiple studies in multiple industries show that women often judge their own performance as worse than it actually is, while men judge their own performance as better than it actually is.”

“Ask a man to explain his success and he will typically credit his own innate qualities and skills. Ask a woman the same question and she will attribute her success to external factors, insisting she did well because she “worked really hard” or “got lucky” or “had help from others”.

“In situations where a man and a woman each receive negative feedback, the woman’s self confidence and self-esteem drop to a much greater degree. The internalisation of failure and the insecurity it breeds hurt future performance, so this pattern has serious long-term consequences”

How to survive

There are several steps you can take to try and alleviate imposter syndrome thoughts:

1.       Identify feelings and automatic thoughts

A first steps is to identify thoughts that are tainted by imposter syndrome. Many of these thoughts are automatic and occur instantly without much thinking. For example, when your boss compliments you on a piece of work, in your head you might be thinking “phew, that was lucky”. This is an automatic thought. If a boss identifies a small error in your work, you might automatically think “I am not smart enough”. Identifying these automatic thoughts can help you gradually change thought patterns.

2.       Do your own reality check

Identify whether your thought accords with the objective facts. If you can, try and balance your thoughts. This may not be as easy as you think due to tendency of 20-something brains to retain negative memories more easily than positive memories.

In her thesis “30 is not the new 20: Why your 20s Matter”, Dr Meg Jay describes how the 20-something mind retains negative memories and experiences more strongly than positive experiences. This can be good for learning, as the 20-something mind remembers the negative experience and rarely makes the same mistake twice. However, it can be bad for self-confidence, as if your brain is focusing on the mistakes you have made at work, rather than the numerous times your boss told you they were very happy with your work, you can quickly come to doubt yourself and your ability. This is compounded by the fact junior lawyers make mistakes all the time, so your 20-something brain focuses on these negative experiences.

Acknowledge that you will remember negative feedback from your boss more vividly than positive feedback and then understand the difference between your feelings and reality. While this may sound ridiculous, it can help to keep a list of compliments and positive feedback on your work. When you get a negative piece of feedback you can then look at the objective evidence on your list and see that you are not doing so badly after all. Acknowledge that just because you think you are not smart, does not mean this is the reality.

3.       Talk about it

Do not be fooled, that law graduate in the team next door to you who seems to be oozing confidence might suffer from imposter syndrome thoughts too. Often people suffering from imposter syndrome do not talk about it, as they fear being found out. You don’t have to talk to that graduate, but finding someone who has similar thoughts or who has gone through the same process before to talk to may assist. For people experiencing strong imposter feelings of being found out or who are also experiencing anxiety may wish to talk to a psychologist. Being a neutral third party, the person with imposter feelings does not have to fear being found out when talking to a psychologist.

4.       Identify your expertise

Identifying your strengths can really help. Even if you are the most junior lawyer at work, you will still have strengths compared to other lawyers. For example, most junior lawyers are the best in their team at legal research and the most up to date in certain areas of law due to the fact they are fresh from law school. If there are more junior staff members, taking on an unofficial mentoring role could also help you, as you can see how far you have come from when you first started in the workforce.

5.       Manage your perfectionism

For those with perfectionist traits, acknowledging that perfect is not the goal but “well enough” will do most of the time can help.

Onwards

Life as a junior lawyer is hard enough without imposter syndrome thoughts. On a day to day basis you will be dealing with new law, new problems and new colleagues. With a bit of effort you can come to enjoy your accomplishments. Enjoying your achievements is important as a junior lawyer, where you will be making mistakes on a daily basis. You need to enjoy whatever small successes you achieve along the way.  Feeling fearful and anxious all the time does not have to be normal. For those with mild imposter syndrome, large changes can be seen merely by identifying thoughts and conducting a reality check. You are capable, smart and intelligent. Start believing it.