Nepotism and the law

Of course, when Legal Eagle saw an article in The Australian on Friday on the right of judges to appoint their own associates, her eagle eyes lit up.

The article focused on reforms suggested by the NSW government after a scandal involving a judge’s associate. Apparently, the associate was a law student and a waiter at an up-market restaurant. He approached his judge while the judge was having dinner at the up-market restaurant, and got a job. The associate was subsequently dismissed for looking at pornography on his work computer. (An incidental comment: What idiocy possesses anyone to do that? I’ve seen it happen in one of my workplaces, resulting in instant dismissal, and I just can’t imagine why anyone would be so stupid!)

One point immediately caught my interest.

“Associates are paid between $50,000 and $65,000, which means the allocation of more than $50 million in taxpayers’ money is controlled by more than 1000 judges nationwide.”

Hmm, well that means NSW judge’s associates are paid a lot more than Victorian judge’s associates, from what I hear. (mutter mutter, rhubarb, rhubarb, gnnr, makes any blue-blooded Victorian see red…)

But the bit I was really interested in was the following:

“[The Auditor-General, Senator Heffernan and the Shadow Attorney-General] are concerned that while taxpayers pay the salaries of judges’ associates, the selection process is entirely in the hands of individual judges.

…

Senator Heffernan, who has been pushing for a federal judicial commission, called for greater scrutiny and control of the appointment process.

“There is a long history of judges appointing friends, relatives and inappropriate people to these type of positions,” he said. “There is a need to reform the system and bring about some accountability to maintain confidence in the judicial system.””

Realistically, any firm or judge (or indeed, any employer) is going to feel more comfortable with someone who has been referred to them, or someone who is know to them. I think that the process of hiring employees is unavoidably swayed by these kind of concerns, even on an unconscious level.

There are a few points I want to make about judge’s associates:

1. The relationship between judge and associate is a very close one. The judge has to be able to trust the associate implicitly. It is also very important that the judge be completely comfortable with the person who is his or her associate.
2. Different judges have vastly different expectations of their associates – it’s not like hiring a solicitor. Some judges require legal research and drafting. Others require an administrative assistant. Some require a bit of both. So it will still be a very personal judgment as to whether someone will make a good associate.
3. Changing the recruitment process and advertising might give rise to a broader range of choice of associates for judges, and make lawyers and law students more aware that this is an option they can explore. But I don’t think having formal interviews gets rid of nepotism.
4. There are always going to be bad apples, no matter how people are hired. The bad associate who looked at porn could equally well have slipped through a formal interview process.
5. A job interview is not always a good predictor as to whether someone will be suitable for the job (although it may often be). I should declare one of my biases here and now. I dislike job interviews, and used to be very bad at them. Therefore, I don’t think that interviews will always find the best person for the job. I was not so good at interviews, but I hope I was very good at my job. The problem is that there has to be some way of sorting out who you employ. I must sadly concede that job interviews seem to be the most sensible way of doing this.
6. The Department of Justice or equivalent body pays the associate’s wages, and they attempt to treat the associate like any other public servant. But there are important differences. An associate works solely for the Judge, and except in extreme circumstances, it is the Judge who has the power to hire and fire, not the DOJ. If the Judge retires, the associate and tipstaff may well be left without a job, as they are effectively tied to that Judge (c/f other public servants).

I am also biased because my favourite legal job was not obtained through formal processes. And I’m glad about that! It came about because I decided I was going to go and introduce myself to someone who I kept seeing in the corridor at work. We had a chat and got on very well. I got an offer to move to that area and accepted it. Initially, I intended to spend one year there, but I stayed for two and a half years. I think I can safely say that my boss and the other people in the area were happy to have me on the team, even though I hadn’t gone through a formal interview. And I know that I really enjoyed working with them. So I think that there has to be room for some informal processes, because they can bear fruit.

Are formal job application processes, interviews and guidelines realistically going to rid the legal profession of nepotism? Looking at the Articles process, I don’t think so. In fact, sometimes the appearance of transparency serves to obscure nepotism. I’m sure we’ve all had legal job interviews where the interviewers:

• ask you what school you went to (what is the Victorian fascination with this question?);
• ask you who you know at the firm; or
• try to find out if you’re related to someone prominent (I happen to have a surname which is similar to a Judge’s surname, but I’m not his daughter – I guess I could have played on it, but (a) I am incapable of lying and (b) I’d be found out eventually anyway).

The Law Institute regulates the Articles interview process and has guidelines which firms must follow. However, despite this, I have heard stories from friends who tell me that each and every one of the new batch of articled clerks at their firm are related to someone at the firm or are children of clients or children of friends of the partners.

I guess what I’m trying to get at here is that nepotism is not a good thing, but it happens, whether you have formal interview processes and guidelines or not. I don’t think reforming the process for hiring judge’s associates will fix the problem. It will just change the appearance of how associates are hired.

The important thing is that, whatever happens, I think Judges should be allowed to hire someone with whom they are totally comfortable, and there should still be some flexibility in the process.