Holding court: why four 80-something KCs have no plans to hang up their robes and ‘call time’

Michael Andrew

Nowadays, nobody briefs Julian Miles KC on a case that’s likely to run for two or three years – and he knows exactly why.

“They don’t want me to die halfway through or become completely senile,” he says.

At age 84, he’s certainly not offended. In fact, he seems to relish the reduced pressure after six decades of high-profile commercial and intellectual property litigation.

On any given day, he’ll arrive at Richmond Chambers and spend time chatting with his far younger colleagues before picking up a file in the afternoon and spending a couple of hours working on it.

“I’m still getting interesting appellate work, so clients are at least prepared to run the risk that I’m still going to be okay in three months’ time, rather than in three years,” he says.

With no fixed hours to speak of, there’s plenty of flexibility and freedom, which suits Miles just fine.

“It’s just so perfect, because life slows down as you get older,” he tells LawNews while on holiday in Greece. “That’s just how the natural rhythms start subtly altering.”

At the tail end of a long, distinguished career, it’s safe to say that Miles has earned the right to slow down – if not to stop practising altogether and commit fully to skiing. Yet unlike many others in his age bracket who have long since retired, Miles keeps a foot in the game, electing to embrace the multiple benefits the law offers, both mental and social.

“The other primary reason why I keep at it is that I’m part of a group of barristers at Richmond Chambers and I love being there,” he says. “It’s a medium-sized set of chambers – there are probably 15 to 20 members –and they’re fun and they’re friends. They keep me involved. They keep me up with the law. They make coffee for me. It’s just an absolute pleasure to be there.”

Still going strong

The attraction of continuing to practise well past the usual retirement age isn’t unique to Miles.

Across the profession, a cohort of notable senior lawyers in their 80s is resisting the call to hang up their robes – some by narrowing the kind of work they take on, while others barely change their work habits at all.

For Dr James (Jim) Farmer KC, retirement seems as unlikely as starting another career.

“No, there never has been a point when I planned to retire,” he says. “I enjoy legal practice and can’t think of anything better to do.”

Despite being in his 80s, Farmer says nothing much has changed in the way he practises: clients seek him out and receive the benefit of his lengthy experience, while the profession hopefully benefits from the example that he provides. His age, Farmer says, has had no bearing on his hours or his ability to do the work.

“I suspect that there will be some solicitors who think that I am too old to instruct. It’s not a view that I share. Lack of energy is not a problem. I have always maintained and still maintain a vigorous exercise regime – running, yoga.”

Like Miles, Farmer can look back with pride on a successful career, punctuated by some defining moments and achievements that he views as professional highlights.

During a 10-year spell practising at the New South Wales bar, he successfully defended a private school in a number of judicial review cases against attempts by the NSW Education Department to close it down.

Back in New Zealand, Farmer led the team acting for the statutory managers of the ill-fated Equiticorp in litigation against the Crown, arising from Equiticorp’s purchase of New Zealand Steel from the government (Equiticorp Industries Group Ltd (in statutory management) v Attorney-General).

The hearing involved 204 sitting days – the longest trial in New Zealand’s legal history – and the 1996 judgment, delivered by Justice Robert Smellie, awarded Farmer’s clients a record $189 million in damages (which, with interest, totalled nearly $330m). Two future Chief Justices, Sian Elias and Helen Winkelmann, were part of Farmer’s legal team.

He also acted pro bono for the mother of a disabled adult son, successfully challenging in the High Court and Court of Appeal a regime that denied remuneration to parent caregivers.

Much in the law has changed since Farmer first entered the profession and, in his view, it hasn’t always been for the better.

For example, he’s not a fan of AI, doubting its value in litigation and won’t be using it anytime soon.

The creep of bureaucracy into litigation is another change he laments.

“The conduct of litigation is now much more rule-oriented and bureaucratic, which has increased the cost of litigation considerably,” he says. “Case management by the judiciary has been a retrogressive step.”

 

Oral traditions

The problematic rise in bureaucracy is only compounded by the memory of what litigation used to be like. As Miles recalls, when he started practising, litigation was as simple as arriving at court and making an argument.

“We just turned up in court. There was nothing in writing, no legal submissions in writing. And it was quick. It was relatively efficient and I think justice was done as well as it is today, where everything is in writing and so much more formal.

“Even in the Court of Appeal, there was never anything in writing. You’d just turned up and ran your argument and told them about a couple of cases, and that was it.”

Colin Carruthers KC agrees. “When I first started, it was all oral advocacy,” he says. “It was an oral tradition. There were very few documents.

“As time has passed, the volume of paper that you deal with is just vast. It’s the requirement under all the rules now, and the requirement of the courts to have your case in paperwork. Now cases are simply bedevilled by documents and paper.”

Also in his 80s, Carruthers is another lawyer for whom retirement is a vague destination far off on the horizon. He loves the law, he says. It keeps his brain active, which at his age is a fundamental goal.

“I’ve seen some of my contemporaries who’ve retired at 60 or 65, and I’ve always worried about how they would keep themselves active.

“I just love the job that I’ve done and if I had my time, I’d do it all over again.”

 

Choosing the work

Having spent much of his career at chambers in Wellington, Carruthers is now based in his home region of the Waikato, with his office in central Cambridge.

His work is a mix of finishing briefs left over after the closure of his Wellington chambers, and other commercial work. Right now, he’s working on a trust law appeal that he’s set to argue in the early weeks of September.

“I still have a wide range of work. It’s like chalk and cheese, really. I work very leisurely hours, and if there’s something I want to do, then I may not come into my chambers at all for a period. So, my hours of work are probably at least halved from what I used to do in chambers in Wellington…. I do pick and choose what I do.”

For lawyers who endured decades of analogue processes, the rapid development of technology in the past 10 years might seem overwhelming. But Carruthers has never found technology a challenge, having adopted it eagerly for most of his career.

“I’ve really kept on top of that. My first laptop computer was in 1988. So, I’ve kept pace with technology, not just in computers, but other aspects of technology as well.”

As for AI, he appreciates its value and tinkers with it, but so far has not felt the call to use it in his legal work.

“It’s yet another tool, and I think it will work its way through. There are some horror stories about it throwing up cases that don’t exist and incidents like that, but it’s a tool that I’m sure will be put to good use.

“It’s the ability to think that sets us aside from AI, and I think it is that thinking process that’s so important to our work.”

Does his age create impediments to his legal work? Carruthers struggles to think of any. Keeping abreast of legislative change can be challenging but is made easier with the likes of LexisNexis and Thomson Reuters Westlaw.

Nor does he find it difficult to keep pace of younger instructing solicitors. They work with him well, he says, and tend to happily follow the strategies he sets out.

Reflecting on his career and the diversity of work, Carruthers is clear about what stands out as the most enjoyable and fulfilling.

“The jury work was something that I enjoyed very much. I did criminal jury trials – not major criminal jury trials – but it did lead to the Court of Appeal appointing me to argue appeals where appellants were unrepresented, and I did that for several years. I think that’s what led me into my interest in miscarriage of justice.

“I finished up doing several cases and writing several reports for the Minister of Justice on applications for the exercise of the Royal Prerogative and I think that probably led to my appointment as the first Chief Commissioner of the Criminal Cases Review Commission.”

 

Burning out

Stress, work-life balance, burnout – these are common issues confronting New Zealand’s contemporary legal profession. But are they recent phenomena, the product of the intensity of modern law? Or were they as chronic for the older practitioners who were at the peak of their careers in the 80s and 90s?

“I wouldn’t ever say that I had suffered burnout,” says Carruthers. “I was at Chapman Tripp for over 20 years before I went to the bar and I was a partner there for 16 of those years. I can remember the pressure of litigation and the pressure of administrative work in the firm, or supervisory work in the firm, putting a lot of pressure on.

“My senior partners were very protective of the amount of work that we had to get through, and – looking back on it now – they made sure that I took breaks.”

It’s a different story for Nigel Hampton KC. Admitted in 1965, he is one of New Zealand’s most respected criminal defence lawyers, having been counsel in more than 100 murder trials.

The nature of the work, as can be expected, has taken its toll from time to time.

“It has been a problem in the past, particularly at the peak of your performance, when you’re doing trials back-to-back and particularly serious criminal trials. Just the sheer pressure of doing things trial after trial is very wearing,” Hampton says.

He is still very active, working his own hours and undertaking a mixture of work that includes sports law cases, professional disciplinary matters and the coronial inquiry into the mosque shootings. But after 60 years in practice, he concedes the pace is gradually diminishing, and his energy with it.

“The years do catch up, no matter what. Your energy levels go down. That’s the main thing – both physical and mental. I’m still reasonably mentally acute, but your physical reserves get depleted pretty quickly.”

Barristers hit their stride in their 40s and 50s, Hampton says, with a couple of decades of experience behind them and the energy still available to use it.

“You know the ropes, you know how to fight, and you know how to run a case, and that’s really your peak.” Citing the adage that litigation is a young person’s game, Hampton says hard trial work is now off the table, not viable from his own point of view and not necessarily in the client’s interests either.

What has replaced it is something slower, and by his own reckoning better.

“Ten years ago, I’d have been straight into something and getting it done straight away – like the proverbial game of tennis, return the ball no matter what, get it back over the net, put it back in the opponent’s court. Now I take my time, and I won’t immediately smash it back. I will be slower and more deliberate, and maybe better for it because I’m slower and more deliberate.”

 

Experience and purpose

While other industries with forced retirement ages might treat 80 as the point at which a worker stops delivering the same value, Hampton sees it the other way around. His age is a boon, providing him with invaluable patience and diligence.

With the luxury of time seldom afforded younger lawyers, he sees things – subtle details and nuances –that are otherwise easy to miss.

“Your perception’s heightened by your experience anyhow,” he says. “You tend to know what it is that you’re looking for and where you might find it, and so that instinctual stuff, which comes out of your past experience, is a tremendous help.”

After 60 years, that experience allows a lawyer to see and establish a pattern in the way they prepare and present cases.

Asked why he is putting off retirement, Hampton’s first answer is laden with purpose: improving access to justice has been his life’s calling.

“I don’t quite know where it comes from, but I’ve always had that as part of my operating ethos, as it were.”

Back in the 1960s, he recalls how lamentable the magistrates’ courts were and the woeful representation they offered people going through the justice system. Even back then, he realised that the process had to change to make lawyers accessible to those facing charges. Hampton was among those who signed up for the duty lawyer scheme when it was established in the early 1970s

“Those features of how you work and what you’re working towards become part of what you do, as well as all your trial work. So, you squeeze it in somehow, but it becomes really part of your own operating system,” he says.

“It’s the sort of thing that attracted me to the Pike River litigation – succeeding in the Supreme Court, [with it] finally saying that the dismissal of the health and safety charges against the Pike River CEO was a stifling and unlawful action.”

His second answer as to why he keeps going is much more straightforward: It keeps him sharp.

“Whilst the mind and body still hold together, I’d be reluctant not to do some legal work, because I think it helps me as I grow towards my dotage – slows down the approach of dotage, perhaps.”

 

The privileged years

Miles considers himself extremely privileged to be still practising at his age. Although his memory isn’t as good as it once was, he can’t think of a single barrier that might affect his ability to work. He has a wonderful support network of peers that do the administrative heavy lifting – “I haven’t written anything in 30 years” – and he never feels like he doesn’t belong.

“No one has ever suggested to me that I’m too old, or too stuffed to handle what I should be handling.”

But like anyone with 60 years of practice to mull over, Miles sometimes laments what the law has lost, particularly when it comes to social interaction.

When he started in the 1960s, within two years he knew every lawyer in the Auckland courts.

“There wouldn’t have been more than 30 or 40 younger practitioners, plus two or three or four sort of godlike silks – like Sir Ronald Davison. You literally knew them all, and you built up personal relationships with them and they were fun.

“In contrast today, where there are literally, I don’t know, 1,500 in Auckland alone, and you just don’t know any of them apart from the immediate few. That’s a fundamental shift.”

Phone calls and face-to-face catch-ups which were once so commonplace now seem unorthodox, replaced by impersonal emails.

As a point of resistance, he takes part in jovial get-togethers with his friends as often as he can.

“I’ve refused to let that sense of impersonality – that sense of isolation that has now become part of all our professions – get in the way. I’ve always loved lunches, and I still do. I’ll have lunch with most of my friends that actually lasts for hours, and we talk, and we behave badly and nothing much has changed.”

As part of a unique cohort of high-profile veteran lawyers who haven’t yet stepped aside, Miles ponders what else has changed. By all rights and tradition, he says, he and his peers such as Jim Farmer KC, Nigel Hampton KC and Alan Galbraith KC should have moved to the bench long ago. Yet for some reason that didn’t happen and he’s now appearing before judges whose fathers he appeared before decades ago.

“So, it seems a unique few decades, really, where a group of senior barristers, who were largely the key players for a long time, stayed instead of opening up the gaps for the next group coming through.”

But no matter who he appears before and who he works with, Miles knows that a lawyer can continue to be in business for as long as the market is interested. Even in the sunset years of his career, his deep pool of knowledge has an impact.

“Now and again, I get a genuine sense from the judges that they enjoy having me there. They can trust me. I’ve argued most of the leading cases in the IP world and in the defamation world. I can tell them how the law has changed and where it should be going. They don’t always agree with me – they often don’t – but it’s still such a pleasure appearing before these very intelligent people.”

For a final question, LawNews asked each of the lawyers in this story where they see themselves in five years.

Miles sums up the collective response perfectly.

“I decline to indulge that question,” he says with a laugh. “I think that’s far too optimistic.”