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. 

Budden v Finke Enterprises Pty Ltd [2016] FWC 562 – employer can direct you to change your hair colour and a retaliatory response could constitute reason for dismissal

Thinking of dying your hair a crazy colour for charitable purposes? You might want to think again, as an employer may be able to lawfully direct you to change your hair colour and a failure to comply with a lawful direction may constitute reason for dismissal. You should also think twice about the way you react to a warning about your hair colour or appearance, as your reaction alone may be a sufficient reason for dismissal. In the recent case of Budden v Finke Enterprises Pty Ltd [2016] FWC 562, the employee’s reaction to a direction to change hair colour was a valid reason for dismissal under s.387(a) of the Fair Work Act 2009.

Unfair dismissal – the basics

To come within the unfair dismissals jurisdiction of the Fair Work Commission, an applicant must first meet a number of qualifying criteria, including the minimum employment period of 6 months or 12 months for small business employers (s.383), and come within the limitation period of 21 days (s.394). An unfair dismissal will only have occurred where the criteria in s.385 are satisfied:

(a)    The person has been dismissed; and

(b)   The dismissal was harsh, unjust or unreasonable; and

(c)    The dismissal was not consistent with the Small Business Fair Dismissal Code (where applicable); and

(d)   The dismissal was not a case of genuine redundancy.

In Ms Budden’s case, the focus was on s.385(b), whether the dismissal was “harsh, unjust or reasonable”. In considering whether a dismissal is “harsh, unjust or unreasonable”, the criteria in s.387 must be taken into account:

(a)  whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)  the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)  any other matters that the FWC considers relevant.

While all the criteria in s.387 must be taken into account, the focus in Ms Budden’s case was on s.387(a), whether there was a valid reason for the dismissal related to the person’s capacity or conduct.

Facts

Ms Budden was employed part time by Finke Enterprises to work five hours a day Monday to Friday at Fused Café. Ms Budden was the most senior cook employed. She was passionate about raising awareness about breast cancer and persuaded the Directors of Finke Enterprises to raise funds for breast cancer research in October 2015. The Directors agreed to donate 10c from every hot beverage sold as well as part proceeds from the sale of pink slices cooked by Ms Budden. There were two separate issues that led to Ms Budden being issued with a formal warning on 17 September 2015 and later put forward as a valid reason for dismissal under s.387(a) of the Fair Work Act 2009:

1.       Making derogatory comments about her employer to colleagues after she dyed her hair fluorescent pink and was directed to dye it a more work appropriate colour; and

2.       Complaints from staff about intimidation and bullying.

Dyeing hair fluorescent pink

Without consulting with her employer, Ms Budden dyed her hair fluorescent pink on 10 September 2015 in preparation for the October breast cancer fundraising campaign. On 17 September 2015 Ms Budden was given a formal verbal warning giving her until the 21 September to change her hair colour. This was followed up by a phone call during which Ms Budden yelled and swore at a Director. A formal written warning was also issued reiterating the options for changing her hair colour, indicating her behaviour on the telephone was inappropriate and that any further issues would result in a review of her employment status.

Commissioner Saunders held that the direction to change hair colour was a lawful direction because:

1.       Customers of the café could see Ms Budden in the kitchen and Ms Budden sometimes interacted with customers;

2.       The owner of a café is entitled to require staff working in a café to have a neat and professional appearance;

3.       The owner offered a number of reasonable options including for Ms Budden to dye her hair a lighter “ash pink” colour for the duration of the breast cancer fundraising month;  and

4.       The fact the employer had previously accepted Ms Budden’s different hair colours did not matter, as those hair colours were not fluorescent.

While Ms Budden reluctantly followed the direction and dyed her hair a more subtle cranberry colour, she was not happy and vented to her colleagues. In particular, at an employee’s 21^st birthday in which many of her colleagues were present, Ms Budden approached a number of colleagues and indicated she was angry she had to change her hair colour and made statements such as “would you like me to show you what it looked like before they fucking made me change it?”.

A final meeting was held on 21 September 2015 with management to give Ms Budden an opportunity to apologise or provide a comment on her behaviour. Ms Budden stormed out a number of times, returning only to make angry comments and storm off again. The decision was then made to dismiss Ms Budden. 

While Commissioner Saunders relied more on the intimidation grounds for dismissal discussed below, he also found Ms Budden’s behaviour in bad-mouthing her employer to be a valid reason for dismissal as her behaviour viewed objectively was likely to cause serious damage to the relationship of trust and confidence with her employer. As Ms Budden had complied with the direction to change her hair colour, Commissioner Saunders did not have to consider whether a failure to comply with the direction would have been a valid reason for dismissal. It is likely it would have been a valid reason for dismissal given if the direction was lawful, as the refusal would likely effect the trust and confidence between parties in the employment relationship.

Staff complaints of intimidation and bullying

Prior to the verbal and written warnings issued on 17 September 2015 Ms Budden had received a number of warnings about her intimidating behaviour including yelling aggressively at staff, putting staff down, calling staff names such as “idiot”, slapping a staff member’s hand, criticising staff members behind their back, and criticising the café’s owners. There was also a particular incident where Ms Budden cornered a junior employee and asking if she was scared of her. The warnings on 17 September 2015 also included a further warning about her intimidating behaviour.

Commissioner Saunders found Ms Budden’s behaviour was a valid reason for dismissal, as an employer has obligations of health and safety to employees in the workplace and Ms Budden negatively impacted on the health and wellbeing of other employees. The fact Ms Budden’s “style” was direct and blunt and she did not personally see anything wrong with her behaviour did not prevent her intimidating behaviour being a valid reason for dismissal.

Conclusion

The case of Budden v Finke Enterprises is a good example of how things can rapidly spiral out of control for an employee who takes a direction from an employer too personally and does not think before they act to bad-mouth their employer. If you do plan to dye your hair a crazy colour, even for charity, ensure your employer is supportive of the change, as you will be required to comply with a lawful direction where an employer is entitled to require staff to have a neat and professional appearance. If you are directed to change your hair colour or appearance, the best course of action will usually be to make the change as directed and refrain from bad-mouthing your employer, especially to colleagues. This includes bad-mouthing your employer on social media, as tempting and satisfying as it may seem at the time. An apology or considered explanation for certain behaviour can go a long way to preventing dismissal if you do act in a way that diminishes your employer’s confidence in you.    

How to put together a brief for a barrister

An essential skill for a law graduate is being able to put together a brief for a barrister. Even if you work in an advisory practice and rarely work on litigious matters, you may have to brief a barrister to provide advice or settle a contract or other document. If you worked as a paralegal prior to graduating, you may already have experience putting together a brief. Law firms expect law graduates to be able to put a brief together, yet the skills required are rarely taught. Mastering the ability to put together an accurate and succinct brief is important as it will help you gain the trust of your team, the barrister you are working with, and can lead to increased responsibility such as drafting observations and managing matters with a barrister directly.

1.       Identify purpose of the brief

To identify the purpose of the brief ask yourself what work the barrister will be doing for you. Will the barrister be attending court, attending conciliation, settling a document, writing an advice, providing oral advice, or providing other legal services? At this point you may want to consider the Bar Rules which provides guidance on what work a barrister can and cannot do. In NSW, Bar Rule 74 states:

74. A barrister must confine the barrister’s professional work to:

a) Appearing as an advocate;

b) Preparing to appear as an advocate;

c) Negotiating for the client with the opponent to compromise the case;

d) Representing the client in a mediation;

e) Giving legal advice;

f) Advising on documents to be used in the client’s affairs;

g) Acting as a referee, arbitrator or mediator; and

h) Carrying out work properly incidental to the kinds of work referred to in (a)-(g).

The briefs you are most likely to prepare as a graduate are:

·         Brief to advise (on a legal question, on evidence, etc.); and

·         Brief to appear (at a hearing, at directions, at a costs hearing, etc.).

2.       Select your barrister, ensure a retainer is in place and communicate need to use barrister with client

If you work at a law firm, chances are a barrister has already been selected, a retainer is in place and your client is aware of the need to involve a barrister in their matter. Ask your team’s secretary or assistant to ensure the barrister knows the brief is coming. If unsure, phone Chambers ahead of time to ensure the barrister is able to take on the brief. If you work at a smaller firm, the client’s budget may be smaller and may dictate which level of barrister you use, so it is important to communicate with your client about their budget and expectations prior to selecting a barrister.

3.       Write observations

If you are fresh from university, a more senior lawyer is likely to have written the observations for you. If that is the case, ask if they need you to proof read the observations. Even if you do not need to proof read the observations, you should read the observations thoroughly, as they will identify the documents you will need to locate and collate for the brief.

Points to note when drafting observations:

·         Prominently position the text that explains what you expect the barrister to do (e.g. attend a hearing on 17 March 2016) and any timeframes (e.g. please provide a written advice on this matter within two weeks of receipt of this brief);

·         You should include a short narration of key facts, but you can refer to documents included in your brief such as a chronology or facts contained in a client’s affidavit or draft affidavit;

·          The focus on the brief should be the legal issues you have identified and any analysis you have undertaken of these key issues;

·         Refer to all documents you intend to attach to the brief as this will help put the documents in context for the barrister;

·         If you are going to include documents of marginal relevance, justify why you have included them in the brief;

·         Number your paragraphs;

·         Triple check spelling and punctuation.

A full blog post on drafting observations is coming soon, but for the meantime, look at observations colleagues have drafted in the past to help you understand what content should go in the observations.

4.       Collate and prepare documents

All relevant but no irrelevant documents should be provided to the barrister. Irrelevant documents waste the barrister’s time and may unnecessarily increase costs for your client. Ordinarily a document should only be included if it is referenced in the observations. If a document is not important enough to be mentioned in the observations, the barrister probably does not need the document. If you have not written the observations yourself, and you are coming into the matter cold, to find out which documents to collate, read the observations, as observations should refer to each key document included in the brief. You may also have to prepare documents from scratch. Unless exceptional circumstances exist, your brief should include a chronology. If no chronology has been made, take the initiative to make one yourself.

If you have created a quality legal research memorandum for the matter, include this in your brief. Not only will this help the barrister with authorities, the document will have your name on it, and is a good way to start getting your name out there. If your boss does not want it included, they will let you know when they review the brief.

5.       Select folder and dividers

Many barristers edge on the OCD end of the personality spectrum. They like to have new white folders and the more expensive looking dividers. For the uninitiated, there are two types of folders you will encounter as a lawyer:

1.       D-Ring –a basic folder with two (or four) D-Rings at the centre. To open the D-Rings you snap them open with your hands. This is the cheaper variety which barristers generally do not like. If you look at the hands of older barristers you will see faint scar lines from past altercations with such folders.

2.       Lever Arch – similar to the D-Ring, but with a lever mechanism that opens the rings for you in a civilised and safe manner. Generally these folders will be stronger and more robust than the basic D-Ring. There are a variety of different brands out there, but if you go to Office Works to have a look, the best ones available are the Bantex A4 2 Ring Lever Arch File. A Lever Arch costs between $6 to $10, so if it is cheaper you are probably not looking at a Lever Arch. Always purchase white. Black and coloured folders are for lawyers who do not know what they are doing.

When the matter concludes, the barrister is meant to return the brief back to you in the folder(s) you provided, so if you are working at a law firm and not paying for the folder yourself, you may as well give them the best. When selecting dividers, choose plastic over paper, as they are more robust. If you only have paper dividers, try and at least use the dividers with reinforced hole punches. Some QC’s and SC’s have preferences when it comes to types of folders (2 binder or 4 binder – but always white lever arch), photocopying (double or single sided – if in doubt copy single sided), and securing documents (staple, paperclip or nothing), and types of dividers (i.e. A-E or 1-5). Ask your Senior Associate or other colleagues if they know about the barrister’s preferences. If in doubt phone the Barrister’s Chambers. You may be asked to redo the whole task if the barrister is not impressed on your first effort.   

6.       Insert cover page and index

Check if your firm has a template for the cover page and/or index. Your team’s legal assistant may be able to help you with this if you are struggling. If you are making the folder cover from scratch it should contain:

1.       Type of brief – brief to advise, brief to appear;

2.       Name of the matter – i.e. if it is a litigious matter the name of both the parties to the dispute;

3.       Name of barrister and address of barrister’s chambers;

4.       Name of your firm, name of contact lawyer and contact details of lawyer.

Remember you need a cover page for the front of the folder and a label to insert in the folder’s spine so that when the folder is on a shelf you can identify what is inside the folder.

7.       Get brief checked by more senior colleague

This step is particularly important if you are a paralegal, a graduate who is not admitted or a lawyer who is still on a probationary practising certificate. Even senior lawyers can benefit from having another lawyer read over their work.

8.       Make copies of the brief

For large litigation matters you will usually need three copies: the original for you to keep, a copy for the barrister, and a copy for the junior barrister. If it is an advice, you may just need the original and one copy for the barrister. Do not fall at the last hurdle. Make sure your photocopying is accurate and that you have not photocopied double sided documents as single sided documents.

9.       Deliver the brief

If the brief is urgent, offer to deliver it by hand. Meeting your barrister in person is one of the best ways to gain the trust of your barrister. Do not just shove it into their hands and leave, unless the barrister is in an obvious hurry, such as where the barrister is robed up and about to attend court in the morning. Stand your ground, as the barrister may ask you about the brief, and using your knowledge gained from reading the observations and the documents in the brief, you may be able to assist the barrister and even impress the barrister. Other options for delivery obviously include express post, courier and hand delivery by a paralegal. Do not send a brief by ordinary post, as you will not be able to track the brief. Express post and registered post both allow for parcel tracking. Keep a copy of the tracking number. If the barrister does not receive the brief for any reason, you will be first in the line of fire.

Happy brief making!