I did but see her passing by

Posted 4 October 2011


History of Professionalism

A former colleague of mine has a passion for ensuring that language is used very precisely. One of the sure-fire ways to get him to mount his linguistic hobby horse was to use the word “professional” as a synonym for “high quality” - as in “professional artists” - or in the sense of paid – as in “professional sportspeople”.

To him, there were, and probably still are, only three true professions. In his traditional view of the world, to be entitled to be called a professional demanded three things.

Firstly, the education required to become a member of the profession had to be provided by a University;

Secondly, one had to have been admitted to a learned body that required members to adhere to a strict code of ethics; and

Thirdly, you had to publically swear an oath to uphold the obligations of the profession – that was the “profession” part.

He argued that in his strict, traditional sense, the three professions were of course the law, medicine and the clergy.

Society set these professions apart. We not only gave them special privileges and status, we marked them out so we could identify them– the doctor with a white coat, the lawyer in a black robe, and the bishop in a mantle.

In its original, a profession was a calling or vocation to serve others. This sense of service of mankind became the hallmark of the professions.

The clergy provided their congregations with the promise of salvation, lawyers defended the civil and property rights of their clients, and doctors maintained their patient’s health and cured their maladies. In the religious, litigious and disease-ridden society of early modern England these were indeed vital concerns.

Now I doubt that there are too many today who would agree with such a strict definition.  There are now many more occupations which fit similar criteria and claim both the status and responsibility of the professional.

However the essential core principal remains.

Professionals are highly educated people who have pledged to uphold the requirements and obligations of the learned body to which they belong.

Professional Obligations

The reason I mention this is because as professionals, it is well understood that we have obligations to others that are greater than those to ourselves or even to our own businesses. History also tells us that there is an obligation to the profession itself, and this involves at its core the ongoing development of its members.

What do our law societies say about professionalism? The Law Council’s Model Professional Conduct Rules speak of three obligations, and I quote:

Firstly, “a practitioner must act honestly and fairly, with competence and diligence, in the service of a client”;

Secondly, “in all of their dealings with other practitioners, practitioners should act with honesty, fairness and courtesy, in order to transact lawfully the business which they undertake for their clients in a manner that is consistent with the public interest”; and

Finally, “a practitioner is endowed by law with considerable privileges. These privileges require that the community has confidence that a practitioner must at all times be fit to enjoy those privileges. A practitioner ought also to act in ways which uphold the system in relation to which those privileges are conferred”.

That is, membership of a profession has obligations, not rights, and these are codified and generally well understood.

Remember, we are not talking about anything particularly modern here. The obligation for lawyers to swear an oath first goes back to France in 1231, and only slightly later in England.

The basic premise of my presentation today hangs on a fourth, though still traditional responsibility of what professional bodies require of their members.

History tells us that the genesis of our current English tradition has its origins in meetings of the professions in England in the 1400s. One of the earliest obligation was that the privilege of being a member of the profession meant that one had to act in the interests of the profession itself. One of the ways that this was done through the peer education of its members.

Up until relatively recently, this was most clearly evidenced in admission to the profession through one’s articles of clerkship.  Could there be a clearer way of the profession educating itself that this?

Perhaps at this stage I should openly declare my background as a former teacher. I have been fortunate to be an educator in the primary and secondary systems, and to have been a lecturer in the University sector teaching up to the post-graduate level.

I think educating our professionals professionally is a responsibility we should all take very seriously.

The law Reform Commission has put it this way:

“Education is vital to ensuring lawyers are aware of their legal and ethical obligations and are able to consider and apply their obligations in practice. [Education] also plays a key role in shaping legal culture.”

My argument today is based on the historical premise that as members of the profession we have an responsibility to each other to develop the capacity of our members. By doing so, we not only enhance the capacity of our colleagues, but we enhance the capacity of the profession to serve its broader obligations.

So, here endeth my history lesson, and now let me move from historical niceties to a more contemporary context.

What makes a good lawyer

In my current role I have interviewed many hundreds, if not thousands of lawyers for employment in various sectors. As a recruiter, particularly in this town, I have probably sat in on a greater number of interview panels than perhaps most of you in this room. I have also enjoyed the benefit of observing a very wide cross section the Commonwealth legal profession.

On the basis of that experience, a question I am often asked is “what makes a good Government lawyer?”

The question is usually meant to mean “what characteristics are required to succeed as a Government lawyer”.

I prefer to twist the question to put the active responsibility onto us – we are the ones who make them who they are. Therefore to me, the answer to “what makes a good Government lawyer” is simple. “We do”.

I have already laid my cards on the table and said that in my view, part of being a professional is the need for life long professional learning. I am very glad to see that we have now completed the first year of compulsory professional development for practicing certificate holders in the ACT, but I do have to say that it has been a long time coming. For those visiting Canberra today from other jurisdictions, you may be surprised to know that mandatory CLE was only reintroduced into the ACT in July last year.

The focus of our CLE is still largely classroom based. My experience with young lawyers is that if you ask them what training they need, most often they give you a shopping list of courses.

But professional education is not something merely done in seminar rooms. Of course classroom based learning still can, and does play a very important role. But surely there is more to continuing professional development than ten hours per year of attendance at courses.

The workplace as a classroom

Perhaps naively, romantically or both, in being true to my experience as a teacher, I think that every day that we turn up to work we are engaged in professional development. Every day provides us with the responsibility to be a teacher (except at work we are called supervisors), and also the opportunity to be a student.

I am going to ask you for a moment to follow me as I make the analogy between a professional legal practice and an educational institution and I hope you will indulge my excursion into educational and HR jargon.

I hold very strongly to the view that we can think about job design as being analogous to a course of study.

Any effective course requires both a curriculum and a syllabus.

A syllabus is a list and summary of topics to be covered in an training course. It is descriptive concept outlining what needs to be achieved.

A curriculum on the other hand is the set of courses, and their content, offered at a school or university and is prescriptive in nature. Some of you may even be interested to know that word “curriculum” stems from the Latin word for “race course”, referring to the course of deeds and experiences through which students grow to educational maturity.

A curriculum tells us what to teach, not how to teach it.

All teachers know that a course of study must also provide for ways of allowing students to demonstrate that they have acquired the relevant knowledge taught in the curriculum. As teachers we come up with all manner of ways of examining a student’s competence – written testing, oral testing, presentations, group and individual learning.

Finally, when students have completed their course, we celebrate their graduation as they move on to their next level of professional development and skill acquisition.

Jobs descriptions as a curriculum

How therefore can this relate to the workplace?

I don’t think that it is a particularly large leap of imagination to redesign a job description as a course of study.

In the context of making better lawyers, is it not possible that we could write a job description in such a way that it goes beyond a list of tasks and lines of accountability? It is my view that job descriptions should articulate not only tasks, but also the skills and competencies that the person will acquire during their time in the role.

Modern HR jargon calls this “competency-based management”. Competencies are defined as observable abilities, skills, knowledge, and motivations that define the behaviours needed for successful job performance.

Competency-based management suggests aligning competencies with organisational goals to achieve both the business’s mission and to support the professional development of staff.

I am suggesting a framework that take this one step further. We should write a job description as though it were a course of study.

The course outline should let employees know what skills and competencies they will be required to learn in their role.

It should then let them know how they will acquire these competencies.

And most importantly, there needs to be some way of identifying how both the employer and the employee will know when the skills will have been attained.

This is, in part, what we have in our current competency frameworks in the Australian Public Service. There is a clear outline of structured progression through the APS, from the junior ranks through to Executive and Senior Executive Levels. There are statements of what is expected at each level.

But my experience is that the way staff acquire these skills is in large part usually passive.

This is education by osmosis. We advise staff of the expectations, but then leave it to them to work out how they are going to develop them.

The best education should be an active activity. An educator is some who literally “leads you out” from ignorance to learning. An educator doesn’t say – “find your own way”.


Most importantly a curriculum should allow students know when they have completed their course.

I am sure we all remember our own graduations and the sense of accomplishment when we were able to say we finished what we started and were ready to move on to the next step.

As a teacher, we took great pride in the sense that we had graduated our students and contributed to their own, and societies’ greater well-being. We understood that graduating students meant helping them to take their next step.

My argument is that there great merit in merit in thinking about a job as a course of study.

Is this is just a theoretical nicety, or does it have real work application?

I can say that I have observed many organisations, and the ones that do this, knowingly  or by instinct, have a more flexible and resilient workplace. More importantly, they find that it is easier for them to attract quality staff.

I was facilitating a practice planning day yesterday and observed a Principal Legal Officer work with his team. He was a natural teacher, and his staff clearly were enjoying the interaction. He may not have done it consciously, but I watched a teacher with his students.

We too have recently started taking this approach in our own organisation.

We began by examining at our own needs and then sought to align them with the professional development needs of our staff.

We probably don’t yet have the correct terminology, but we consider our staff to “be on a programs” rather than have a job description. We provide them with a written outline of what they can be entitled to learn and what tasks they will be expected to do to accomplish their learning. We also set the expectation for how long we think this will take to complete.

We have even gone as far as to align the tasks with the Australian Qualifications Framework. For example, when our Associate Consultant completes her program, if she wishes, she can apply to have it credited towards an Associate Diploma of Business.

What have we gained in practice?

We have found that staff acquire skills far more quickly when the program of learning is structured than when it is ad hoc. And we have found that there is a greater sense of organisational alignment with the tasks we ask our staff to do.

We have found that as supervisors we have begun to see our feedback sessions as tutorials and oral examinations. It has changed the focus to say that when someone hasn’t met the required standard, it is our fault as a teacher, not theirs as a student.

What are the costs and the benefits?

There has been a cost to set his up. It has taken considerable time and energy to develop program materials and documentation. Our program requires more frequent feedback sessions and we understand that this is the ongoing cost of ensuring that staff are kept on track.

The benefits on the other hand, both professionally and commercially, have been enormous.

Most exciting however has been the way this has tapped into the psyche of the modern day graduate.

So again I ask whether this all theoretical nicety or a framework for developing professional staff which has practical application?

As recruiters we are privileged to have very frank and open conversations with candidates about their professional aspirations. Remember that candidates don’t usually come to us when they are overwhelmingly happy. They come when there is a problem and they are looking to move on from their current job.

The main causes of employees looking to change jobs are in our experience:

One, lack of mentoring;

Two; the lack of opportunities for career progression;

Three, the gap between their abilities and what they see the mind numbing nature of their work; and

Four, the lack of recognition for their efforts.

The virtuous circle

A properly run employment program goes a long way to addressing the issue of the lack of mentoring.

Can it also address other issues?

In my experience (and I should say that I find this more prevalent in the private, rather than public sector), employers look at jobs as discrete tasks that exist for the purpose of achieving organisational outcomes. They are viewed as necessary to get the job done. And they exist regardless of the person that it in it.

When we have someone who is doing the job well, we hang on to them for as long as possible to avoid the costs of rehiring and retraining.

From our perspective as employers we look at the job as a tunnel, viewed side on. It has a beginning and an end. It serves a discrete task, and it is a single piece of infrastructure which allows a bigger task to get done.

Employees on the other hand, see the tunnel as something they pass through. The tunnel is for their benefit, not for ours.

I know that sounds rather selfish, but in my experience it is true. Employees usually look to see how a job will help them build their careers first and then how this benefits their employer rather than the other way round.

I don’t see this is a problem. I see it as an opportunity.

Returning to my education analogy, we take undergraduate students into our course to turn them into graduates who could continue their professional development by joining the workforce, or by moving on to further study. We don’t try to keep our best students in their final year for ever because we like having good students, or to make our grades look better. Our job is to graduate them. We take them to the next step. We work with them to find the next opportunity.

I suspect that most of us know ourselves that if we had to constantly repeat the same course again and again (assuming we had already passed it), we too would become disenchanted. My experience is that seeking increasingly complex intellectual challenges is part of the DNA of the highly intelligent being that is the lawyer. The fact that the profession demands CLE reinforces this.

I don’t think we should be in the least bit surprised that staff move on when they have acquired new skills.

If we look at this through the lens of a teacher, we enjoy the fact that it is part of our job and our responsibility to graduate students. If we accept that we are the ones responsible for educating members of the profession, then we should see the fact that they have gained sufficient skills to move on as a sign of great success.

More importantly, it has been my experience that organisations who actively seek to develop staff in this way have found a means by which to overcome the skills shortage.

Rather than a departing staff member (humour me and let me call them a graduate) – rather than leaving us a hole, let’s see them as creating a vacuum – a vacuum that will suck others into it who seek to enjoy the same experience.

Places of learning that offer outstanding experiences never have a shortage of students. On the other hand, those that treat students as commodities, or assets or EFTSUs (equivalent full time student units – only a manager could have come up with that name) -   they struggle to get students.

My view is that as employers we want to create a vacuum that others want to fill. The vacuum creates a virtuous circle.

If we moved to a curriculum model of job design, we would be trying to move our staff on. And if we don’t have opportunities for them in our own organisation, we should be encouraging them to seek out further opportunities elsewhere.  It might be great to have my undergraduate student complete their honours degree with me, but it should be equally great that they go off and explore other opportunities elsewhere.

If we accept that as professionals, we have an obligation to the profession to train and develop staff, this would be self-evident.

The mismatch between skills and work

Let’s consider the third issue for a moment – the one I described as the gap between skills and the work.

The usual development of a legal practice is that the first time we are presented with a new area of work – say a new financial instrument -  it’s highly specialised, it’s complex and takes senior experienced lawyers a considerable period of time to complete.

As we as an organisation get better at doing them, the job becomes more routine, and becomes the staple diet of the mid-level lawyers.

When we get highly experienced at it, it becomes the commoditised work of paralegals.

That is, there is a curve that says the work of the practice starts of being highly complex, but low volume, but over time it becomes less complex and high volume.

On the other hand, the career trajectory of a lawyer is that we start out with low levels of expertise and a low capacity to do volume work. As we improve our skills, we grow more capable of doing increasingly complex work, and we become faster at doing it.

As we grow in experience, we reach the point where our interest is maintained by the low volume, highly complex work.

Our career trajectory moves in a different direction to that of the development of the practice.

One of the largest sources of dissatisfaction that we see for lawyers is doing work in one part of their career that doesn’t match to quality of work that they are being asked to do.

In some cases, it is asking insufficiently experienced people to do work that is too complex. Isn’t that not unlike asking a first year student to undertake a Masters level course? I think most of us would find it self-evident that this would lead to ineffective outcomes.

Likewise, if a student were asked to repeat the same course again and again, despite having already passed it, self-evidently it would lead to some form of disengagement. My experience has been that most good legal practitioners hate the concept of intellectual stagnation. It is the curse of the brightness that our young lawyers possess.

What therefore does that mean for us?

Again I say that it is our responsibility to make sure that our “students” are matched to appropriate level courses. If staff find that their work is repetitive and boring, it is probably because they are not being challenged. They should be graduated and put into a higher level course, or encouraged to pursue opportunities elsewhere.

Is it our responsibility

So back to my original premise. Should we even be concerned about educating our professionals?

As I have said, in my view there is a responsibility to the profession to enhance the capacity of its members. That is our responsibility and one we should all take very seriously.

But from a commercial perspective, we can’t escape the fact that it is hard these days to find high quality staff.

If I may, for a brief moment, I would like to digress to give you my perception of the current state of the legal employment market in the ACT.

Prior to the global financial crisis, we had a very tight labour market here in Canberra. Employment in the ACT sat at 2.5 per cent. I have never been much of an economist, but I understand that 5 per cent is considered full employment.

The GFC came, but fortunately in Australia, unemployment did not rise here like it has in the United States. Unemployment in Canberra has risen, but only to 4 per cent. My evidence is personal and apocryphal, but I would venture to suggest that in the legal profession, it is still lower than that.

As recruiters, we saw an immediate cessation of hiring at the start of the GFC. We also saw a dramatic drop in job hopping – where staff would change jobs, fully secure in the knowledge that if it didn’t work out, there were plenty more opportunities available.

Prior to the GFC, recruitment was done incredibly fast, Due diligence was less rigorous knowing that probationary periods could be used to assess employee’s suitability for the role.

When the GFC was in full force, employment decisions were taken much more slowly and pre-employment checking was far stricter.

As things started to improve about 14 months ago, in the private sector we started to see a strong move in the employment of support staff, then an increase in the recruitment of lawyers.

In very recent months we have seen a return to “speculative” recruitment. By this I mean, recruiting an outstanding person even without an identifiable position, because of a trust that the workload is growing and there is a confidence that there will be sufficient work to support their employment.

We have yet to see a return to the speed of recruitment of three years ago, but my sense is that we are not far off.

I have long held the view that because we hit the GFC with a skills shortage, if we experienced a rapid economic recovery, the skills shortage we would see afterwards would possibly be greater. Thus far, our evidence would seem to bear this out.

My point in raising this is to say that again it has become very difficult for many organisations to find quality staff. Each of us will have to work hard to find ways of developing staff, and finding replacements where necessary.

My view is that the curriculum approach to job design, whilst not entirely new, is particularly apt for legal professionals.

I started this presentation suggesting that it was primarily a professional obligation. In bringing it to a close, I would also argue that the model brings with it strong commercial benefits.


So why did I title this presentation “I did but see her passing by?”

The answer is a little embarrassing.

I was asked to provide a topic for this paper on the day of the royal wedding. The following morning, I was talking to a neighbour who reminded me of the famous quote of Menzies in 1963.

As someone who is a strident, verging on obsessive republican, can I assure you that my reference was not to anything royal.

Rather it was more a reference to my tunnel analogy; to remind us that there is a sense that one of our obligations to the profession is to see our lawyers as people who do indeed pass us by, who graduate from our employment.

We have a responsibility to see them graduate from our “University’, or our “course” and know that the profession is better of as a result of our tutelage.

So to return to my question, what “makes a good government lawyer?” in some ways I wish the answer was simple – superior analytical skills, attention to detail, an obsessive focus on client service.

But that is too simplistic.

I respond by saying that what makes a good Government lawyer is good teachers, teaching good courses.