The Obligation of the Barrister to Engage in Practice for the Benefit of the Community
In my general reading over the Christmas break I came across, and in turn researched, the not uncommon phrase “noblesse oblige”.
Such language, of course, is of French origin but – of greater interest – it resonates in the conduct of practice as a barrister.
At the French royal court, nobles – by dint of their status and wealth – were expected to attain high standards of probity in the discharge of their duties apropos of the land they controlled and the citizens who worked that land or provided services in relation thereto. By parity of reasoning, in turn, such standards were also expected of lawyers, having regard to their education and cognate ability to enjoy substantial earnings, in the provision of legal services.
The concept harbours an earlier – indeed biblical – pedigree. In Luke 12:48, St Luke wrote:
And to whomsoever much is given, of him shall much be required: and to whom they commit much, of him they will ask the more.
The dictionary definitions thereof are as follows:
- Macquarie Dictionary – an expression suggesting that a member of the “nobility” has an obligation to display generous and honourable conduct.
- Cambridge Dictionary – the idea that someone with power and influence should use their social position to help other people.
A useful exposition of the obligation owed by a barrister, in this context, was exposed by Professor Peter Gerangelos, in an address to law graduates at the University of Sydney in 2019: (2019) 41 Sydney Law Review 417. He wrote:
… [L]aws cannot be sustained by their own devices, but rather by those lawyers who … see they belong to one of the great foundational, liberal and learned professions whose maintenance in its form as a liberal and learned profession – and not just another trade or business – is essential for the maintenance of ordered liberty in a democratic society and those civil liberties which enable the enjoyment of the fruits of civilised life, for the cultivation of an ethos in society which, without denying individual’s obligations to civil society, maintains that the law and the State exist not for their own sake, but rather to facilitate human flourishing; but no person – no matter how mean or otherwise disreputable – is ever to be regarded as a means to an end, but an end in themselves, a sacred, enviable and treasured end, for which the law and the State exist. It is not to be wondered that the French attributed nobility to the legal profession: noblesse de robe – the nobility of the robe, or the gown – referring to the gowns being worn here today and in the profession. With true nobility, however, comes obligation: noblesse oblige.
(emphasis added)
In New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 at 262-263, Reynolds JA wrote in respect of a barrister who the Bar Association sought be struck off the role for his manner of criminal practice:
This case illustrates the dangers and difficulties that lie in the path of a barrister who ignores the conventions, traditions, safeguards and self- imposed restrictions under which an independent Bar has functioned for centuries. This young man has no concept of the “noblesse of the robe”, the collegiate pride of a learned profession. Despite his disavowal, it seems to me he has, whilst accepting the status of a barrister, chosen to work outside the recognized profession with results which have proved disastrous to him. He has no chambers in the accepted sense, he owns no wig and gown, possesses a minimal library and has distanced himself from his colleagues in the profession. He has allowed himself to become too close to his criminal clients and lost the detachment which is essential to proper practice. He has willingly allowed himself to be placed in a position where he becomes a witness in criminal trials and has sought to intrude himself into situations where persons charged with crime are escorted in custody by police officers. This is not barrister’s work and may explain the erosion of proper standards which this hearing has exposed. He may be a victim of his early experiences at the Bar and it may be that his motivation to do the type of work he has done for little or no money is good but, granting that this is thecase, I am forced to the view that his present unfitness is demonstrated and that the relief which the Bar Association seeks should be granted.
(emphasis added)
The “noblesse of the robe” entails the need for barristers to fully appreciate, and deploy their skills, on the footing that:
- They are privileged to enjoy a tertiary legal education and advocacy skills with a consequent obligation to serve and deploy same for the benefit of the public generally, with the prevailing obligation being to the administration of justice (including the court).
- Their self-interest should never interfere with the discharge of the above obligation.
- Their practice ought be undertaken as a member of a collegiate profession, and strictly in accordance with the professional ethical rules and mores.
In sum, the practice of a barrister, in truth, is a noblesse oblige. It is a privilege not to be squandered or diminished.
