Law graduate job market 2016 – what will the new year hold for graduate lawyers?

The years 2013 to 2015 were not good years for law students to graduate. The law graduate job market retracted at the same time that the number of law students graduating and job hunting increased significantly. Will 2016 offer improved opportunities for law graduates trying to get their foot in the door? While the downward trajectory in legal demand continues, there are some positive signs for graduates trying to get their first job as a lawyer, particular if law graduates are looking in the right places. In this blog post I have drawn from my own experiences and understanding of the legal market as well as the Melbourne Law School and Thomson Reuters’ Australia: State of the Legal Market 2015 available here.   

Traditional commercial law firms

Demand for commercial legal services in the Big 8 Firms (Allens, Ashurst, CU, CCW, HSF, KWM, Minters, Norton Rose) and larger firms has been on a downward trajectory for the past five years and the trend continues, with demand falling 2% in 2015 and a 3.8% decline in the number of lawyers employed in commercial legal services. The decline in demand is particularly prevalent in the industry’s three biggest practice groups – dispute resolution, banking & finance and general corporate advisory. Some Big 8 and large firms have continued to use offshore low-cost legal process operations in places like India for work like discovery, due diligence and document management services. While some of this work would ordinarily be given to graduates, most of this work is very basic and is more likely to effect the number of paralegals and administrative/support staff a firm employs than the number of graduates.

The outlook is not all doom and gloom for law graduates seeking a career in commercial law. Large law firms have been conservative in the number of graduates they have recruited the past three years, and in some cases, have under recruited. This could lead to an increase in graduate positions offered in 2016. Demand for legal work in some practice groups increased in 2015 including:

1.       Mergers & Acquisitions;

In 2015 there was a 2.1% increase in demand for M&A work. The weaker dollar has caused an increase in international investment in Australia, as investment is cheaper and there is a reduced risk of currency fluctuation for bidders. Australia is the second largest M&A region in the Asia/Pacific, second only to China. There is indication that these conditions for M&A will continue in 2016. There is potential for even greater growth in M&A, with the imminent review of the Foreign Investment Review Board. Large firms will look for graduates who have a keen interest in M&A, as this is a growth area in an environment where demand in other traditional areas of commercial law are in the decline.

2.       Real estate, property, constructions and projects;

In 2015 there was a growth in real estate and projects work, especially among the Big 8 firms.

3.       Intellectual property; and

4.       Tax law.

If you are interested in a career as a GST lawyer look out for a spike in recruitment if the rumoured GST reforms take place.

If you have a keen interest and/or experience in one of these growth areas, you have a stronger chance of obtaining a graduate position at a large firm. These growth areas could also lead to large firms engaging in strategic hiring – that is hiring graduates to settle directly into a team rather than undertaking the traditional rotation training program. These opportunities will usually be advertised separately to the ordinary graduate program and sporadically throughout the year, so make sure you regularly check your target firm’s website. Demand for services of Big 8 and large firms increases significantly in November to December (before the January slow down). Firms anticipate this and often recruit extra graduates in September/October. Law graduates applying at this time of the year are usually required to start work immediately. If you missed out on a position earlier in the year, or finish half way through 2016 make sure you watch out for these opportunities.

Law graduates keen for a career in commercial law should also look at medium sized firms that are rapidly growing such as Mills Oakley and HWL Ebsworth. In the past three years HWL Ebsworth increased its revenue from $102m to $219m. More growth means more jobs for graduates. Note that medium sized firms that have seen rapid expansion may not have had a formal graduate program before, so you will probably experience a few teething issues, such as less comprehensive formal training than if you were working as a graduate at a large firm. However, the benefit of working at a rapidly growing firm is that you will likely be given more responsibility earlier on and will always have enough work and billable hours. Medium sized firms are more likely to hire graduates on shorter term contracts, such as 6 months and 12 months, but don’t let this put you off. Any experience in the legal sector is better than none.  

New law

The last two years has seen the rise of the unconventional law firm, which commonly use technology and pricing structure to differentiate themselves. Examples of new law firms include HiveLegal, Nest, LawPath, and LawCentral. New law firms are increasingly seen as a threat to traditional small and medium sized firms, as they are able to contain pricing through use of digital solutions. Many are experiencing double digit growth.

What can these new law firms offer law graduates? You will be surprised that some new law firms, such as Legal Vision, regularly recruit graduate lawyers. These positions generally offer very interesting work and a young, upbeat and relatively relaxed working environment, so are perfect for law graduates who would like to work in commercial law but are not so keen on a strict corporate environment.

Government sector

Obtaining a job as a government lawyer at the Commonwealth level has been difficult the past few years as graduate programs were cut and an APS freeze was in place on new permanent ongoing employees. This freeze has now been lifted, so prepare for an increase in law graduate positions in 2016, particularly at AGS, which has survived its movement into the Attorney-General’s umbrella and is once again thriving. At the state level, getting a position as a graduate lawyer has been cut-throat for some time. For example, NSW Crown Solicitors are rumoured to take on only three graduates a year. However, the programs remain in place, and are up for grabs. Remember that government recruitment processes take much longer than private sector, so start applying at least 6 months before you would like to start a government job. Formal graduate recruitment programs often recruit 12 months in advance.

In-house lawyers

The trend towards having larger in-house teams continues and is likely to continue in 2016. Companies are performing an increased amount of legal work internally, relying less on advice from external law firms and briefing barristers directly instead of through law firms. Some in-house teams are large enough to constitute their own law firm and recruit graduates and junior lawyers. Companies to watch out for include Telstra, Lend Lease, Woolworths, Coles Myer, Microsoft, Google and Yahoo.

Multi-disciplinary practices (MDPs)

Consultancy and business advisory firms are expanding their portfolio to include legal.  PricewaterhouseCoopers (PwC), KPMG, EY and Deloitte have all indicated they will grow their legal capacity. Each of these firms already has over 1,000 lawyers working for them and the numbers continue to increase. These positions are predominantly in tax advisory law. If you have an interest in this area, it could be a good alternative to working at a Big 8 law firm.

Community legal sector

Community legal centres have been under severe financial strain for years, mainly due to government funding cuts. In December 2014 the Productivity Commission released its Access to Justice Arrangements report. The Productivity Commission looked at a broad array of factors effecting access to lawyers and legal services including the level of demand for legal services and the economic and social impact of the costs of accessing justice services and securing legal representation. The Productivity Commission recommended an immediate increase in government funding for legal assistance services of $200 million per year. A full twelve months after the report was released the Productivity Commission is still to receive a formal response from the government and the community legal sector continues to operate on the verge of collapse. Community legal centres can barely afford to pay their current employees, let alone employ and train graduates. Law graduates keen for a career in the community legal sector may have to obtain initial experience elsewhere and volunteer at a community legal centre until they can work in their dream job full time. 

How to get a job as a government lawyer

If you have a passion for government and law, there is no better job for you than working as a government lawyer. Sure, some law firms do work for government clients. However, nothing compares to actually working in the heart of government, contributing to government accountability, and working on matters that have an impact on the community. Getting a job as a government lawyer as a graduate is difficult. The process is even more competitive than getting a job in a private sector law firm. This is due to the complete withdrawal or narrowing of most graduate government lawyer programs and a freeze in the Commonwealth sector on recruiting new permanent employees. In this blog post I explain the types of government lawyers out there and provide tips on the application and selection process.    

Types of government lawyers

The Commonwealth and state governments all have a myriad of lawyers working for them:

1.       In-house government lawyers

Often referred to in government-speak as “Legal Officers”, “General Counsel”, or “Legal Advisers” these lawyers work in government departments, government agencies, tribunals and commissions. Some government departments, such as the Department of Defence have very large in-house legal teams. Other in-house legal teams are much smaller. In-house lawyers generally provide their employer advice on a broad range of legal issues that may arise. If you are a government lawyer in a smaller in-house team you may be required to work on issues as broad as leasing/property, contracts, procurement, employment and industrial relations matters, privacy, freedom of information, defamation and intellectual property. The legal problems will be referred to you by other non-legal teams within your department/agency, such as Human Resources, corporate or customer service.

2.       AGS/Crown Solicitors

Working at Australian Government Solicitors or a state government’s Crown Solicitors is similar to working at a large law firm except all of your work is government work from government clients. Teams are specialised like at any law firm, so expect to see Property, Commercial, IP/Copyright and Litigation practice groups, as well as specialised public law practice groups such as Constitutional law, Administrative law, and Freedom of Information. Lawyers at Crown Solicitors are highly specialised and receive referral work from in-house teams or directly from Departments and government Agencies. For most matters except Constitutional law and some other areas of public law, AGS and Crown Solicitors compete for government work with private law firms.

3.       Law reform lawyers

With budget cuts in recent years, the number of lawyers working in law reform has declined significantly. The Commonwealth Attorney-General’s Department employs a number of lawyers in law reform positions, as do state agencies like the Law Reform Commission of NSW. Government lawyers working in law reform generally make recommendations to the Attorney General who then attempts to implement changes in parliament.

4.       Legislative drafters

If you studied “Interpretation” at university and loved it, legislative drafting may be for you. Legislative drafters are lawyers whose full time job is to write legislation and/or regulations. Positions for “junior drafters” are not common, but I have seen one or two positions advertised before. Positions within government departments drafting Regulations are more common, especially in Regulation heavy areas, such as the NSW Office of Land and Heritage which looks after a large amount of Regulations which are predominantly enforced in the NSW Land and Environment Court.

5.       Criminal lawyers

Governments are responsible for prosecuting crimes in their jurisdiction. Those interested in criminal law should look at state DPPs and the Commonwealth DPP. Some government departments will also employ criminal lawyers, such as the Department of Immigration and ASIC (for corporate crime).

6.       Freedom of information and privacy lawyers

Complying with the Freedom of Information Act and the Privacy Act and their state equivalents can be complicated and arduous. Most government departments and agencies will have trained staff processing freedom of information requests and processing privacy complaints. Most departments will also have a Freedom of Information and Privacy lawyer to advise on the difficult matters. This is a very niche area, but there are many career opportunities within government if FOI and privacy is a particular interest of yours.

Which departments and agencies have graduate programs for lawyers?

Unfortunately, many graduate programs for government lawyers have been cut completely in recent years. Remaining programs have shrunk in size, so that only one or two graduates are taken instead of 10 or 15. The good news is that there are more positions for government lawyers with 2+ years’ experience, and if you can’t get a position straight from university, it will be easier to get a position after obtaining some legal experience elsewhere. Some people may recommend accepting a non-legal graduate position in government and then trying to convert to a legal position later. I would advise against this, as getting legal experience early in your career is vital and it is not easy to change to a legal position within government after people have categorised you and seen you in a non-legal position.

Here is a small selection of government lawyer graduate programs. Other graduate positions will arise on an as-needs basis, so always keep an eye out:

Commonwealth

1.       The Australian Securities and Investment Commission (ASIC);

2.       The Australian Prudential and Regulation Authority (APRA);

3.       Australian Government Solicitors (AGS);

4.       Attorney-General’s Department;

5.       Commonwealth Director of Public Prosecutions;

6.       Administrative Appeals Tribunal recruits graduates to be Associates/Tipstaff to AAT Members.

State

1.       NSW Crown Solicitors; WA State Solicitors Office; SA Crown Solicitors Graduate pool; Victoria Government Solicitors Office;

2.       NSW DPP and other state DPPs;

3.       NSW Office of Environment and Heritage usually takes one or two law graduates a year;

4.       State Tribunals such as NCAT and VCAT employ graduates a Associates/Tipstaff to Members.

Look outside the square

1.       Legal Officer in the Defence Force;

2.       NSW Police Accelerated Prosecutor Recruitment Program - become a police prosecutor through an accelerated program which helps you avoid the usual 3 year mandatory service in general police duties;

3.       Legal Aid Victoria Junior Lawyer Program –Legal Aid is an independent statutory body funded by the Commonwealth and relevant state government.

Why working as a government lawyer is amazing:

1.       Government lawyers do work that matters. The public interest must always be at the forefront of your mind. Examples of making a small difference in day to day work include ensuring a member of the public has a fair hearing or ensuring a member of the public’s freedom of information application is dealt with appropriately.

2.       The work of a government lawyer is generally high profile, topical and often covered in detail in the media. While you are not able to join in the conversation, working on such high profile work is exciting.

3.       Many government lawyers are able to contribute to law reform in some way.

4.       The type of work junior lawyers are given is generally much more challenging and interesting than if you were a junior lawyer at a large commercial law firm. This is because government legal departments are top heavy. Most lawyers are very senior. The few junior lawyers that are employed by government tend to get interesting and challenging work. Large law firms tend to be bottom heavy in that there are a lot of junior staff around, meaning that interesting work is spread more thinly, and junior lawyers spend much more time doing “trudge work” like due diligence and assisting with preparing documents for litigation.

5.       The work is extremely varied and interesting. The variety of areas of law the average government lawyer has to adapt to is extensive.

6.       Government lawyers have additional layers of responsibility such as abiding by the model litigant rules, ensuring their standard of behaviour is of the level expected from the public sector, and understanding any document produced could be subject to a freedom of information request and potentially end up in the media.

7.       There is a large emphasis on professional development and support for further study. Colleagues tend to be positive and love the work they are doing. This makes for a great working environment.  

Do not apply for a position as a government lawyer unless:

1.       You enjoy working in complicated areas of law. Most areas of law have additional levels of complication when applied to the government. If you hate statute heavy areas of law and despise statutory interpretation, working as a government lawyer is probably not for you.

2.       You like working hard. I have yet to meet a government lawyer who does not work extremely hard. Budget cuts the last few years has left legal departments very lean. Junior lawyers are often given challenging work that is beyond their experience level. You need to have a positive approach to survive.

3.       You must be adaptable, as you will have to deal with areas of law you may not have seen before.

4.       You must be patient. Government must be accountable for everything it does, so making changes can take time, as the correct process has to be followed. This can be frustrating for lawyers who come from the private sector.

5.       You are happy to be constantly performance reviewed. Government lawyers are paid with tax payers money. Just as government is accountable, employees must also be accountable. Government lawyers will constantly be on a quarterly or six monthly performance plan. This is a positive process, as you will get formal feedback from your supervisor often, and will be able to fast track your legal development.

6.       You are happy to have a “no frills” workplace. There is no free tea/coffee/cookies/Friday night drinks in the public sector. This doesn’t bother me. However, if you are the kind of person who can’t go without a free fruit bowl/free dinner after 7pm/free taxi home, the public sector is not for you.  

A few tips for applying

The recruitment process for getting a job in government goes for months, and is even longer for graduate recruitment where there are hundreds and sometimes thousands of applicants. The usual recruitment timeframe from the application closing date to an applicant being chosen is 3 months. For graduate recruitment the time frame is more like 5 or 6 months. I would start looking for a job in government at least 6 months before you would like to start working as a government lawyer.

Applicants will be subjected to more than just two rounds of interviews. There are additional tests for most jobs in the public sector. For example, NSW DPP and NSW Crown Solicitors both have written tests for applicants in their graduate programs (like a mini exam). Make sure you have learnt the name of your Department head and the Minister responsible for your Department/Agency. Some government recruitment processes also involve attendance at a selection centre. Awareness of where your Department/Agency fits into the government as a whole is important. If you are going for a Commonwealth government position, make sure you have revised the APS Values, model litigant rules and ensure you are on top of any recent legal developments in the area you are applying for.

ACTING AS A MODEL LITIGANT – A CRASH COURSE

In a nutshell what is required of a model litigant?

In civil litigation, it is not enough for government litigants to act honestly and according to court rules. The state and its agencies are held to a higher professional standard in civil litigation than other litigants and must act fairly with complete propriety. I flesh out what these higher professional standards mean in practice below.

Who has to act as a model litigant?

The state and its agencies must act as a model litigant in civil litigation as well as in dispute resolution. The Commonwealth government, state governments, local councils, and government departments must all act as a model litigant. Lawyers working in-house for the government and lawyers in private practice acting for government clients need to be aware of the obligations of the government as model litigant, as the principles place limits on strategy and conduct commonly used in civil litigation.

Why are government litigants held to a higher professional standard?

The obligation to act as a model advocate can be traced to the broad concept of the rule of law. Everyone, including the government, must abide by the laws of Australia. No one is above the law. All are to be equal before the law. It is assumed that the government is the more powerful party in civil litigation. To address this power imbalance and therefore respect the rule of law, government litigants are held to higher professional standards than other litigants. The model litigant principles also reflect the fact that government and its agencies must act in the public interest. A set of principles is required to assist government lawyers act in the public interest and ensure government power is not abused. 

Where can I find the law and who can enforce the model litigant principles?

Model litigant principles were first developed by the courts and can be found in the common law. Most Australian jurisdictions have usefully summarised these principles either in regulations or policies. It is important to note that individuals cannot enforce the model litigant principles as a cause of action in separate court proceedings. This was clarified by the Federal Court in Caporale v Deputy Commissioner of Taxation [2013] FCA 427 where the court stated the relevant model litigant policy was created by the Commonwealth for their own internal supervisory purposes. The model litigant principles did not give rise to private rights. The issue of non-compliance is to be dealt with:

1.        Through the government’s own mechanisms; and

2.       By the judge in the original court proceedings.

In practice, the model litigant principles are monitored by judges during the matter and are monitored by the relevant government audit authority after the dispute resolution or litigation has concluded.

At the Commonwealth level, the model litigant principles can be found in the Legal Services Directions 2005 (Cth). Breaches are investigated by the Office of Legal Services Coordination.

NSW government and its agencies are bound by the Model Litigant Policy, which contains detailed guidelines on best practice. This statement of principles reflects the existing common law. If an individual wishes to complain about a government litigant’s non-compliance with the policy, complaints are referred to the CEO of the relevant government agency. Victoria has its Model Litigant Guidelines 2001 (revised 2011), and other states have similar policies or guidelines.

The obligations of a model litigant include:

1.       Promptly dealing with claims

Unnecessary delay must be avoided. This means some delay tactics commonly used in commercial litigation may be inappropriate. Agencies should not purposely prolong litigation.

2.       Paying out legitimate claims

This may extend to partial payment of a claim even before litigation commences where it is clear the matter will be about quantum and government liability will be at least that amount.

3.       Acting consistently in handling claims and litigation

4.       Avoiding litigation, where possible

There are a few reasons why model litigants must strive to avoid litigation. First, litigation is expensive and it is in the public interest not to waste resources or tax payer money. Second, it is assumed alternative dispute resolution assists to overcome the perceived power disadvantage of persons in a dispute with the government. There is a real focus on alternative dispute resolution within government and their agencies. Government agencies should attempt to settle outside of court through offers of settlement, offers of compromise and alternative dispute resolution.

5.       Making an early assessment of the case

Related to the above point, a government agency should ensure early assessments are made of matters to identify the government’s likelihood of success in pursuing the case and the government agency’s potential liability.

6.       Keeping litigation costs to a minimum including:

a.       Not requiring the other party to prove a fact where the state knows it to be true; and

b.      Not contesting liability where the state knows the real issue is quantum rather than liability.

Government agencies should ensure they do not incur extra costs by taking technical points. The focus should be on the real issue in dispute. Rule of thumb: “good points should be pressed hard; technical points should not be”. There are some situations where taking a technical point would be permissible, but technical points should only be pursued where the government’s interests would be prejudiced by the failure to take that technical point.

7.       Not taking advantage of claimants with limited resources

Resources include money and knowledge. Government lawyers should be particularly alert where the other side is an individual who is self represented.

8.       Not appealing unless there is a reasonable likelihood of success or there is a public interest in seeking the appeal

If the government decides there is a justifiable reason for appeal the decision to appeal should be made as soon as practicable.

9.       Apologising where the state or its lawyers have acted improperly

It is important to note that the obligation to be a model litigant does not prevent the government from winning cases or putting their best case assertively forward. The obligation to be a model litigant does NOT prevent the state from:

1.       Acting firmly and properly protecting its interests;

2.       Enforcing costs orders;

3.       Claiming legal professional privilege or other forms of privilege;

4.       Claiming public interest immunity;

5.       Pleading limitation periods;

6.       Seeking security for costs;

7.       Opposing unreasonable or oppressive claims or processes;

8.       Requiring opposing litigants to comply with procedural obligations; and

9.       Making applications to strike out untenable claims.

If you are the lawyer and your client is a government agency, it is your responsibility to ensure that your litigation and dispute resolution work reflects the obligations of the model litigant. Situations could arise where there is a conflict between what your government client is instructing you to do and your obligations as model litigant.

Key cases:

The obligations of the model litigant have been described in the key cases as requiring “the State and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards”. This catchphrase has been adopted in the model litigant policies of most jurisdictions. For further information see the earlier key cases of:

1.       Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342;

2.       Kenny v State of South Australia (1987) 46 SASR 268 at 273; and

3.       Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.

Highlights of judicial commentary in recent cases includes:

1.       Morely & Ors v Australian Securities and Investments Commission [2010] NSWCA 33

 This case was one of the James Hardie group asbestos cases. The NSW Supreme Court discussed the model litigant obligations and emphasised that government litigants do not have a private interest and their actions should reflect this. The NSW Supreme Court held that the failure to call a particular witness was a breach of ASIC’s obligations as model litigant:

“[716] the government agency has no legitimate private interest of the kind which often arises in civil litigation. It acts, and acts only, in the public interest as identified in the regulatory regime.

In partial answer to the first of the questions, whether its failure to call a witness can constitute a breach of the obligation of fairness, in our opinion it can.”

2.       ACCC v Australia and New Zealand Banking Group Ltd (No.2) [2010] FCA 567

The Federal Court held ANZ had failed to follow its obligations as model litigant and the ACCC was ordered to pay 80% of ANZ’s costs. The ACC’s breach centred on the nature of their interrogatories, which included 98 separate and unclear questions:

“[26] ACCC must frame the interrogatory in a way which does not cast an obligation on the other side to do the best it can with the interrogatory and reframe it. The intention must be made clear...if the intention is not clear, the person interrogated does not have an obligation to frame what it perceives to be the intention.”

3.       Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470

The Federal Court emphasised the importance of government litigants being “impartial”, as they do not have a private interest akin to an individual in litigation.

“[192] The submissions were, in my opinion, a little too partisan at times for a statutory officeholder. By partisan I mean infused by a measure of zeal rather than detachment. I would have thought that the Ombudsman should aspire to be a model litigant rather than a partisan one.”

4.       LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90

This case suggested that acting as model litigant is particularly important where independent legal representatives are not involved.

“Speaking generally and without reflecting on counsel who appeared before us, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards.

This obligation may require more than merely acting honestly and in accordance with the law and court rules.

… [A]s Melbourne Steamship Limited v Moorhead (1912) 15 CLR 333 at 342 reveals,  that expectation, even a century ago, was of long standing. To bring the matter up to the present we note that in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 286 ALR 501, Heydon J said ASIC accepted that there was, in the words of Griffith CJ in Moorhead, an “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”. Its powers are exercised for the public good. It has no legitimate private interest in the performance of its functions. And often it is larger and has access to greater resources than private litigants. Hence it must act as a moral exemplar ….

In our opinion, counsel representing the executive government must pay scrupulous attention to what the discharge of that obligation requires, especially where legal representatives who are independent of the agency are not involved in the litigation.”