Dolman, Kevin --- "Indigenous Lawyers: Success or Sacrifice?" [1997] IndigLawB 69; (1997) 4(4) Indigenous Law Bulletin 4

Indigenous Lawyers: Success or Sacrifice?

By Kevin Dolman

There are powerful reasons for increasing the number of indigenous lawyers. Indigenous people are more likely to engage an indigenous lawyer. It is likely that an indigenous lawyer will be empathetic to the client's concerns, and may be able to overcome many of the factors which often prevent indigenous people from accessing the law. The indigenous lawyer is likely to be better able to communicate effectively with the client and thus better able to represent the client's interests. But within these positive aspects there are dangers for indigenous lawyers. This article discusses issues which are likely to arise as an increasing number of indigenous people undertake a law degree and move into the legal profession. This article is based on a survey of current indigenous Australian law students conducted in April this year (`the April 1997 survey').

In the past six or seven years the number of indigenous law students at Australian universities has tripled to approximately one hundred and fifty.[1] This group, as individuals and as a collective, are likely to have a strong influence on the direction of Aboriginal and Islander affairs.

However, international experience warns Australian indigenous lawyers of the cost associated with working under the often competing demands of indigenous culture and the demands of the dominant legal system.

Chief Justice of the Navajo Nation, the Honourable Robert Yazzie, told an indigenous law students association conference of the first American Indian lawyer, Thomas Jefferson McDonald of the Choctaw Nation of Mississippi, who took to drinking and committed suicide because `...he did not learn to combine Indian ways with his legal training.' McDonald's brother told him to `throw away all that belonged to the white race or quit being an Indian and turn white man.' The first Indian woman lawyer, Lyda Burton Conley of the Wyandotte Nation of Kansas, sat in a shack with her gun and studied law whilst holding off the commercial developers from removing an Indian cemetery of three hundred victims of a small pox epidemic. Conley lost a suit against the Secretary of the Interior and the U.S. Supreme Court refused to act. She and her sister sat in the graveyard for forty years more while Conley continued to take cases. She almost starved to death because `she wouldn't prosecute anybody and she wouldn't defend anybody guilty except an Indian. So she didn't have many cases.'[2]

How do indigenous lawyers deal with situations where the priorities of the legal profession conflict with the priorities of our Aboriginality? Our minds and our hearts will be the point where the two cultures clash and regular decisions will have to be made to follow one or the other. The politics which have followed the native title cases highlight the enormity of the challenge to find solutions acceptable to both cultures.

The April 1997 survey questionnaire was sent to indigenous education support units at universities around Australia, who were asked to distribute them to their law students. There were fifty responses, representing approximately one third of all indigenous law students.

A survey conducted in 1990/91 stated there were 50 indigenous law students in Australia.[3] Then, in 1993, the first Pre-Law Programs began in Australia.[4] Essentially, Pre-Law Programs are derived from a North American concept in which indigenous people interested in studying law are put through a short intensive course, over a number of weeks, run by the university law faculty and the relevant indigenous education support unit. The University of New South Wales Pre-Law Program is five weeks long. Upon successful completion, the student is recommended for an offer of a place at a law school. Pre-Law Programs are currently conducted at the University of New South Wales in Sydney, at the University of Western Australia and Murdoch University in Perth, James Cook University in Townsville and the Northern Territory University in Darwin. The April 1997 survey shows that 46% of respondents have completed a Pre-Law Program to gain entrance into law school.

Although there are 150 indigenous law students, there is still a long way to go. There are currently 22,200 law students in Australia.[5] But indigenous people form close on 2% of the total Australian population. So there should actually be about 450 indigenous law students.

The vast majority of respondents (76.7%) said their reason for studying law is to `make a contribution to the indigenous community.' An observation made by Justice Michael Kirby seems to reflect the main reason for Indigenous people studying law:

`There are few occupational choices that can give the successful entrant a greater certainty of a share in the power of Government than the law.'[6]

The second highest reason for studying law is an interest in the subject matter of law (72.1%). Notably, earning a high income was not ticked by 93% of respondents. These results could be interpreted to mean that the indigenous community will be exploring legal avenues on a number of fronts to redress social disadvantage and hence the indigenous movement is likely to become more litigious. This also means that, in the future, substantial breakthroughs in indigenous rights, such as that achieved by Mabo [No. 2],[7] cannot be ruled out.

A survey of aboriginal[8] law graduates in British Columbia (BC) was conducted in 1994 to assess discriminatory barriers in the legal profession and at law school. The quantitative and qualitative results are remarkably similar to the April 1997 survey and will be presented for comparative purposes and to emphasise certain issues.[9] For example, the BC graduates placed a similarly high priority for entering law school on making a contribution to their indigenous community. They indicated that their main reasons for entering law school were to address issues of social justice (80%), or to serve their community (83%), or both.[10] In contrast, a broader survey of Australian law students, of all cultural backgrounds, conducted in 1995 indicates that only 8.1% of first year law students chose law in order to make a contribution to the community.

The April 1997 survey results indicate that this is an area of concern. Apart from the emotional consequences, it could also prove to be a major factor in low retention rates. `Racism' was not defined in the questionnaire. However 38.1% of survey respondents said they had experienced racism while studying. Of those, 20% said it occurred daily, 13.3% said weekly, 46.7% said monthly and 20% said once a year.

Respondents were given the opportunity to describe their experiences. The majority of complaints arose from incidents during lectures and indicated that expressions of racism usually occurred when indigenous issues such as native title or Australian legal systems were discussed. Several respondents believed that this situation was used as a platform for non-indigenous students to express racist views, including disagreeing with policies that support people, and that the offending students were relying on the excuse of ignorance to express these views. Another student believed he was being indirectly ridiculed in the lift by non-students after a lecture during which he felt compelled to speak up in defence of indigenous people.

Other students complained of being selected by the lecturer during class to defend the whole race simply because of their heritage. The complaint was that it should be the student's choice whether to accept the pressure of having to present a coherent response to complex matters in front of their peers. One lecturer was accused of using antiquated language such as `lubras' and `picanninys' [sic], and it was felt that the lecturer did not view people as high achievers, but rather as excuse-makers with (late) assignments. `Paternalistic' was used twice to describe lecturer's attitudes. There was a complaint that a torts lecturer was too dismissive of Aboriginal customary law. Law librarians at one university were accused of being consistently rude to the respondent whereas they were perceived to be co-operative to the `Anglo undergraduates'.

These concerns obviously are offending students and while some may not warrant actionable claims in discrimination law, they do raise the issue of what is an acceptable standard or quality of debate during sessions on law relating to indigenous people. Defending the race against simplistic attitudes prevents discussion of more substantive issues. A method which may raise the standard and debate is for indigenous lawyers or similarly skilled indigenous people to take part in relevant lectures because they may be more experienced in perceiving and responding to such situations.

Seventy-six per cent of BC graduates indicated that they had experienced some form of discriminatory barrier as a result of their aboriginal ancestry at law school. Three quarters of those respondents indicated that insensitivity to aboriginal issues in the course materials and by the instructor was the most significant problem, ranking it first or second.[11]

To gain entry to the legal profession one must meet particular standards. One must complete certain educational requirements at recognised educational institutions, be judged to be `of good fame and character' and obtain certain practical experience. The decision of who can become a member is one of the main regulatory functions performed by the profession. The legal profession argues that the rationale for this control is to protect the public against fraudulent or incompetent practitioners. But it can be argued that this rationale supports the profession's claim to self-regulation and a high social status. It also suggests that the profession is maintaining a monopoly, enabling it to keep up the high cost of legal services.[12]

Sixty-nine per cent of survey respondents indicated they were concerned or very concerned about the effect of the `good fame and character' test. For those students unaware of the test, the survey question mentioned that criminal offences and political activity may affect admission. Criminal offences and political activity are systemic characteristics of indigenous society.

First, political activity. Many members of the indigenous community are involved in political activity and it is therefore likely that many indigenous law students will also have been involved. Given that more than three quarters of respondents intend to make a contribution to the indigenous community, it can be assumed that this motivation existed prior to commencing legal studies and is strong enough to cause a person to spend between three to five years at law school. They may have been involved in various aspects of political activity, such as street marches, sit-ins, or blockading development on land with indigenous spiritual significance. Some of them may have court convictions from this activity. But at what point will the line be drawn in relation to indigenous people gaining admission to the legal profession? This appears to be, as yet, untested for indigenous applicants. Stan Ross believes that the line is unclear, and that there are serious questions over the standards being applied, in relation to the `good fame and character' test.[13] How much will these standards discourage indigenous people even from seeking admission to the profession?Indigenous law graduates may find the `good fame and character' test harder to pass, or at least have a perception that they will not pass such a test.

Secondly, criminal offences. The disproportionately high rate at which indigenous people are involved in the criminal justice system is well documented. This too indicates that indigenous law graduates may find the `good fame and character' test harder to pass. It should be noted that the Royal Commission into Aboriginal Deaths in Custody found this disproportionate rate to be systemic[14], which points to the conclusion that it is less likely to be a reflection of the `badness' of the individual.

The underlying requirement in this admission process is that graduates must approach it with `candour', which essentially means that if an applicant for admission thinks something is relevant then it must be disclosed at the application stage. Otherwise, if it is discovered later, and deemed to be relevant, there may be strong reason for the relevant body to doubt the applicant's ability to uphold the standards of the profession.[15] The problem, particularly for indigenous students, is deciding what is relevant. An indigenous person may not have the same standard in mind as members of the legal profession when deciding what to include in the application.

Overall, the admission process in itself could be the greatest barrier to indigenous graduates who are not prepared to subject themselves to such scrutiny given the systemic issues which may create a perception that the test is too hard to pass.

This is where the greatest potential for conflict of ethical issues can arise for lawyers. The indigenous lawyer's desire to act `altruistically,' that is, to make a contribution to the community, is not easily incorporated into the legal profession's traditional lawyer-client relationship model and the indigenous lawyer may appear to breach professional ethics despite doing what they consider best for the client.

The traditional lawyer-client model requires the lawyer to be neutral and objective. This, combined with the pressures of professional practice, lead many lawyers to adopt an `amoral' approach to clients and their problems.[16] Advocates for the traditional model say that efficiency and accuracy may suffer if less than an objective approach is taken by the lawyer. Ross suggests that the traditional model, that is, the profession's rules and codes of ethics, suppresses the lawyer's ability and desire to deal with ethical issues, resulting in stress and social problems which eventually cause many to leave the profession.[17]

It is likely that indigenous lawyers will be involved in matters involving family or friends, particularly because of the altruistic objective and the cultural duty associated with the `extended family' concept.[18] It may be an insurmountable challenge for indigenous lawyers in such situations to follow the `amoral' approach of the traditional lawyer-client relationship. Indigenous lawyers may become obsessed with the altruistic objective thus defeating the very results that indigenous lawyers wish to achieve. For example indigenous clients are more likely to have a range of simultaneous issues that need to be addressed, such as discrimination, land rights, criminal justice, stolen generations, family law, high interest financial credit, housing and Social Security or Abstudy. Their clients will come with high expectations and lawyers will burn out trying to meet these expectations. If the expectations are not met, it is possible that the lawyer will experience a backlash within their own community. In the past, this scenario has happened to the Aboriginal Legal Service of Western Australia. This backlash can occur even if it is the restraints of the legal system that is causing the problems. Extra training provided at law school may be required to address this issue.

`The delays and expense of litigation are legendary... Litigation is enormously stressful for the individual parties, for their associates, friends and family...and civil litigation is not an option taken lightly.'[19]

In the face of these pressures, there is a danger of indigenous lawyers reverting to the traditional lawyer-control model as a defence mechanism. This then wastes the special skill of combining culture and legal knowledge that is brought to the profession by indigenous lawyers.

These skills are best utilised by the lawyer-client cooperation model. The cooperation model signifies a partnership between lawyer and client. Each party retains their autonomy, responsibility and dignity but a relationship of exchange facilitates common goals, better understanding and a course of action acceptable to both parties. The cooperation model may also present problems. Many indigenous lawyers will be working and socialising within their community. If the cooperation model is adopted, then being the community lawyer could become a twenty-four hour job. Over time, this may create the feeling of constant pressures in the lawyer. For example, clients may regularly approach indigenous lawyers in a social environment regarding their case. Emergencies occur at all hours and given the scarcity of legal skills within the community, the demands could be relentless. The nature of the requests are likely to be of a serious nature thus making it even harder for the indigenous lawyer to ask `can it wait `till the morning?'.

Lengthy discussions in a public environment between the lawyer and clients can also alert others to possible legal actions and may breach client confidentiality. The smallness of community would also mean that the lawyer would be carrying the trust of the community on their shoulders as they would be privy to a lot of secret information. This may become testing when the lawyer participates on community based decision-making positions such as committees and selection panels.

Also, there are cultural duties such as attending funerals, which are often spontaneous and are unavoidable. This could overlap with court or client responsibilities. Duty to the client and duty to the court are regarded by the profession as the upmost priorities of a lawyer.

Seventy-one per cent of respondents believe their law school should provide more electives on indigenous legal issues. University law faculties should ensure that indigenous law graduates are equipped to pursue the range of indigenous issues, if necessary to the highest court in the land. This would include offering a greater range of electives specialising in indigenous legal issues. The respondents were asked to list the areas they would like to see covered at university.

The respondents indicated that the area they most wished to learn about was traditional/customary law. In response to this, I will only pose questions. Would our elders approve of the studying of traditional law away from tribal lands? Would the law faculties agree to courses on traditional/customary law? Also, is this an indication that many of the indigenous people studying law do not have the opportunity to learn traditional law from their own people? If this is the case, is this the best way to address this issue? It seems that a course on traditional/customary law would be popular with indigenous law students, but there needs to be consideration of whether it is culturally appropriate.

Other areas listed reinforce the assertion that indigenous law students are focused on social justice for indigenous people:

• cultural issues relating to the law,
• native title (one respondent specifically asked about regional agreements),
• juvenile justice issues,
• stolen generations,
• impact of laws on indigenous people,
• conflict of laws,
• constitutional law,
• women and men issues,
• intellectual property law,
• access to the law and remote area justice.

A theme running through the responses is a desire to learn about contemporary indigenous legal issues. It is suggested that a course be developed which incorporates the legal and political processes of legislative policy and the past and current effects on indigenous Australians. The course could analyse some of this century's notorious state legislation which facilitated breaches of human rights of indigenous people and the effectiveness of the various cultural protection Acts. It may examine the range of options available for indigenous lawyers pursuing social justice issues and should not be confined to litigation. It may discuss the political necessities to coordinate community support, within the indigenous community and the broader community, for positive legislation. It may do all of this with a focus on a specific issue.

As one respondent succinctly stated, she would like to see a course cover `History, rights and ingrained racism that equal a legal imbalance.'[20] Basically, this could incorporate whatever is necessary to encourage indigenous law students to research, plan and develop sophisticated strategies to address social justice issues. Roper has recognised the need for universities to make an effort to draw links between the two disciplines, such as Arts/Law, or Commerce/Law, which he says are currently studied in parallel.[21]

For indigenous people, the journey through law school and into the legal profession needs to be approached with caution. Firstly, racism at law school is a concern. It could be addressed internally, such as by the student law society body allocating positions for an indigenous male and female to be elected by the indigenous law students. Secondly, an ensuing discussion on the admission process may clarify standards for admission and alleviate fears. Thirdly, the issues raised in this paper indicate that indigenous lawyers require specialised training in relevant substantive legal issues, and in how to ensure that they are able to meet expectations from their community and from their profession.

Further research is required to assess the retention rates of indigenous people at law school, in particular to evaluate the Pre-Law Programs. It would also be valuable to find out the areas in which indigenous lawyers in Australia are employed. A higher percentage working in government or non-legal positions, such as consultants or in policy development, rather than the private legal profession, might be expected, given the results of the survey.

The BC graduates indicated that 71% were practising law; sole practitioners (22%), partners or associates in private law firms (20%), government lawyers (10%) and about 10% worked for the Legal Services Society or a community law office. Twenty-nine per cent were no longer in practice or had not practised. The reasons given by those that had left the profession included a dislike of the adversarial system and the pressure of practice.

In the meantime, when indigenous lawyers face conflicts, the process should be a balancing one and the decision should be informed. A sound knowledge of the ethical rules can be used as a basis to recognise and become sensitised to the presence of these ethical problems but ultimately the lawyer will need to refer to their own moral framework to decide where the priorities lie. As the Honourable Robert Yazzie stated,

`I have hope--and confidence--that if you remember why you went to law school and what it means for an Indian to be a lawyer, we will go on.'[22]

M Aronson and J Hunter, Litigation--Evidence and Procedure, Butterworths, (5th edn, 1995).

Centre for Legal Education, `Access to Legal Education' Law Foundation of New South Wales, 1996.

Centre for Legal Education, Career Intentions of Australian Law Students , Centre for Legal Education, 1995.

Department of Justice, Canada, Legal Careers and Aboriginal People, Minister of Supply and Services Canada, 1990.

Lavery, D `The Participation of Australians in Legal Education' (1993) 4 Leg Educ Rev 177.

Purich, Donald J, `Affirmative action in Canadian law schools: the native student in law school', v51 Saskatchewan Law Review p79-104.

Ross, S Ethics in Law--Lawyers' Responsibility and Accountability in Australia Butterworths, 1995.

Short note received from Ruth Thompson, Director, Program of Legal Studies for Native People, Native Law Centre, University of Saskatchewan, Canada.

Telephone conversation with Margaret Brown, staff member, Native Law Centre, University of Sasketchwan, Canada.

The Law Society of British Columbia, Report on the Survey of Aboriginal Law Graduates in British Columbia, January 1996.

University of New South Wales Faculty of Law, Law, Lawyers and Society Supplementary Materials Volumes 1 and 2, UNSW, 1997.

R Yazzie, `Address to the Ninth Annual Coming Together of the Peoples Conference of the Indigenous Law Students Association: Where should lawyers be when the people come together?' 20 American Indian Law Review 301.

[1] In distributing the questionnaire for this paper the author contacted Aboriginal Education Units at 12 large Australian universities to get an approximate number of students.

[2] R Yazzie, `Address to the Ninth Annual Coming Together of the Peoples Conference of the Indigenous Law Students Association: Where should lawyers be when the people come together?' 20 American Indian Law Review 301.

[3] D Lavery, `The Participation of Indigenous Australians in Legal Education' [1993] LegEdRev 8; (1993) 4 Legal Educ Rev 177.

[4] For a summary of the UNSW Pre-Law Program see Centre for Legal Education, Access to Legal Education, (1996), p 20.

[5] Centre for Legal Education, Career Intentions of Australian Law Students (1995) at 4.

[6] Centre for Legal Education, Access to Legal Education, Foreword (1996).

[7] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1.

[8] Small `a' is used in the report.

[9] The Law Society of British Columbia, Report on the survey of aboriginal law graduates in British Columbia (January 1996).

[10] ibid p5.

[11] ibid p7.

[12] D Rhode, `Moral Character as a Professional Credential' (1985) 94 Yale LJ 491 at 494 in S Ross,Ethics in Law--Lawyers' Responsibility and Accountability in Australia, (1995), p 96.

[13] Ross, op cit, p105.

[14] Commonwealth of Australia Royal Commission into Deaths in Custody, National Report, v2 Part C, 1991, AGPS Canberra, p 274.

[15] Ross, op cit, p101, Re Davis [1947] HCA 53; (1947) 75 CLR 409, Wentworth v The New South Wales Bar Association (1992) ALRJ 663.

[16] R Wasserstrom, `Lawyers as Professionals: Some Moral Issues', (1975) 5 Human Rights 1 in Ross, op cit, p23.

[17] Ross, op cit, p405.

[18] For example, in Aboriginal society, aunties and uncles are regarded as mothers and fathers, and great uncles and great aunties are regarded as grandmothers and grandfathers, thus the allegiance often confined in white Australian families to immediate family members incorporates a much larger number in Aboriginal communities.

[19] M Aronson and J Hunter, Litigation--Evidence and Procedure (5th edn, 1995) p 21.

[20] Respondent no. 8.

[21] Interviewed in S Smith, `Law schools set for scrutiny as half students spurn profession,' Campus Review, Part 4, July 6-12 1995 in UNSW, Law, Lawyers and Society Supplementary. Materials, Vol. 2 (1997), p 16.

[22] Yazzie, op cit, p 305.