Merit will out? Are accountants better at partners than lawyers?

There’s an interesting story on the Big Four which is worth a read for anyone interested in leadership and diversity within professional service firms.  It’s about who makes partner.  The similarities with law firms are interesting, driven, male, workaholic tendencies are pushed to the fore but I also noted some differences (at least with my own conceptions of who makes (equity) partner in – say – Magic Circle Firms).  The numbers are fewer, 1-2% but also their backgrounds were notable.  The researchers say:

We talked to over 50 partners, ex-partners and people who didn’t make partner in Britain and Canada. The similarities far overshadowed any differences. Partners were very much “self-made men” and, save for a few exceptions, were drawn from modest social backgrounds. This meritocratic quality was deeply infused within the firms we visited, with a notable ‘can do’ ethos.

Cash is still king (perhaps more so), but the emphasis on merit and where that has led in terms of diversity is interesting.

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A profession not at ease with itself or the world? Bar’s Working Life Survey

I took a little time to browse the Bar’s working life survey. It’s a large survey. Although it’s not immediately clear how representative it is, almost 3,300 barristers completed it. Here are some of the things I noted (this is a rather idiosyncratic list so read the report if you want a fuller view):

The problem of bullying, harassment and discrimination is discussed. It’s less of a problem at the self-employed bar (12% experienced problems) than the employed bar (22%). In the CPS the figure is a whopping 35%. What do people most often report bullying, harassment or discrimination on appears to be being female, BME or disabled; having the main responsibility for childcare, responsibility for adult care, minority sexual orientation, or having been to a non-Oxbridge university. A less than resounding 40 per cent of barristers would positively recommend a career at the Bar, and 51 per cent would opt for the Bar if they started their career again. They feel that the Bar is respected but not a family-friendly area in which to work. It is hard to work-part time. Particularly interestingly is the finding that the Bar seems not to think that the Bar attracts the best quality entrants, regardless of background. This feeling is strongest amongst the employed Bar but is a view widely shared across the Bar.

Gender is a pretty strong theme of the report. Female barristers are more likely to be single or divorced than their male counterparts, particularly those aged 45 and over and women with children are far more likely to take the main responsibility for childcare: 57% did this compared with 4% of male barristers. Shared childcare is however getting more common.

Diversity generally is a strong focus of the report, which is to be applauded, but I could not help noticing this sentence and imagining non-Russell Group student, lecturers and barristers gnashing their teeth as they read this:

Barristers are highly qualified academically. Overall, 32 per cent (45% of the Young Bar, i.e. those one to three years since Call) went to Oxbridge, and 46 per cent to a Russell or 1994 Group university. In addition, 18 per cent (41% of the Young Bar) have Firsts; the percentage of Firsts has risen from 15 per cent in 2011.

The insinuation will not be lost on the teeth-gnashers: perhaps it is the ideology which supports the bullying complained of earlier. One should also emphasise that the Bar is getting more Oxbridge than it was (30 to 45% is a big shift even with some volatility likely given the small numbers of pupillages). It is also taking more students with first class honours. The size of the firsts growth looks to me stronger than the general increase in students with first class honours in the student population, but that is a bit of speculation on my part.

There’s an interesting passage on what best predicts becoming Silk. As well as length of call the following are the strongest independent predictors of QCdom:

  • Studying at Oxbridge
  • Getting a first
  • Type of secondary schooling

To spell out the significance of the finding: once the impact of a candidates length of call, degree grade and law school has been taken account of where a candidate went to school until the age of 18 has made a significant difference to whether they achieved silk. The old school tie has made a difference independent of any objective indicator of merit available (putting aside the vexed question of whether where one went to law school indicates merit). This discrimination, if I may call it that, takes place within a cohort already narrow in demographic terms.

There’s some interesting other nuggets. The fervour with which the Bar defended the Cab Rank principle is not entirely borne out with membership enthusiasm. 69% of private practitioners agree it is an important principle to retain, meaning nearly a third did not. Only 38% of private practitioners thought they had a good understanding of the role of the BSB, and 18% thought BSB is an effective regulator of the barristers’ profession. I’ll leave it to a smart reader to work out the import of that one. I don’t understand what you do, but I know you’re not good at it? Sarcasm aside, these numbers have to shift and PDQ.

There’s one set of findings which I thought particularly interesting. This provides a little insight into what might make different bits of the Bar tick.

What struck me was that family and criminal lawyers want to make a difference but PI lawyers don’t (I’d be surprised if the same was true for solicitors, but this may reflect a stronger divide between claimant and defendant work?). Different sections of the Bar appear to have quite different values. I guess that’s to be expected. Yet there are similarities: it’s the interest of the work which barristers most often claim motivates them. My favourite stat, I have left until last. It is this, “men working at the criminal Bar are more likely to indicate that the work offered a ‘challenge’ (29% compared with 19% of female barristers).” Maybe the men get more complex work. Maybe they’re more easily challenged.*

To be more serious, the overall thrust of the report is interesting and concerning. There is a good deal of discussion of shifts in barristers’ earnings and workloads. Criminal and family lawyers are doing more for less or doing less for less. Significant minorities are thinking of leaving. Whilst the commercial feels (and almost certainly is) more confident the survey paints a picture of a profession ill at ease with itself, who it recruits and promotes. They do not quite say, we are not the best, but they do say we do not recruit the best. The implication of the findings on silks is clearly that they do not promote (all of) the best. And they promote, and some bully, on the basis of the Old School Tie or the college gown. The report suggests that the profession does not just have an image problem, it has a real problem.

*This is a joke for the benefit of the sisters and any male crime hacks who wish to self-flagellate in the comments section.

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Judges and Inquiries: do the public trust them?

Now that Dame Butler Sloss has taken the sensible view that she cannot chair the forthcoming Inquiry into child abuse, the debate has turned to who can chair. As we don’t know rather crucial things like what the terms of reference of the Inquiry are, then it’s rather difficult to speculate. Mark Elliot does a very nice job of pointing out some reasons why judges might be good or bad people to do it. A lot depends on what the Inquiry is asked to do.  I’m not nailing my colours to the mast one way or the other, but I don’t think we should assume that the public don’t trust judges to lead this. One of the reasons is that public trust in the judiciary is very high along with doctors, teachers and scientists.  Over 80% of the public trust these groups to tell the truth.  That’s not the same as saying a judge led inquiry on these matters has the same level of support or that doctors or teachers should be involved just because trust in them is high (though I am sure excellent Doctor or teacher candidates could be found).  

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Judges and lawyers ethics: system failure?

Joshua Rozenberg’s got a very interesting miscellany of stories published in the Guardian today featuring:

I was also re-reading part of Rick Abel’s book Lawyers on Trial: Understanding Ethical Misconduct. Having read hundreds of Californian and New York conduct prosecutions, and interviewed some of the protagonists for 12 case studies he sets out a series of general findings about common causes of ethical misconduct. These include:

  • the lawyers believed themselves innocent and simply engaged in things that everybody else was doing;
  • inexperience was not generally a cause: “ethical misconduct is learned behaviour; it is not the product of ignorance.”; and,
  • misconduct by these people was chronic not aberrational.

It was against that background that I read Rozenbergs’ comments on a perverting the course of justice appeal where a QC (and presumably the CPS and junior Counsel) failed to deal properly with disclosure obligations (see especially para 32, and feel your jaw sag slightly):

We can only regard the failure to make the disclosure in early 2007 that was subsequently made in June 2013 as a lamentable failure of the prosecutor’s obligations … [Another judge had said that courts] must assume that the prosecution had performed its duty to make appropriate disclosure of relevant material. That, of course, is the case unless the court has reason to doubt the proper performance of the prosecutor’s obligations. Unhappily, it was an assumption that proved to be inaccurate.

I do not know if the judges took the matter further. Whether the barrister has been referred to the BSB, or the CPS workers referred to the DPP and their professional regulators, I do not know. My impression is that judges tend not to make such referrals. If I’m right, it would be interesting to know why. We cannot ask the regulator about this case because they will not tell us. Barristers subject to investigation have anonymity: a practice of understandable origin but questionable benefit.

Abel’s findings about lawyers punished (in US cases) does not prove that those found to have breached professional standards here are likely to be serial offenders; but it should give us pause for thought, particularly given historic and current anxieties about prosecution disclosure of evidence that might help the defence. One of Abel’s other observations also caught my attention. Judges instigate only 1% of complaints to the US Bars studied (and there it is the judges who are ultimately responsible for professional conduct). Regulators need to have good information about potential risks. Not all cases may need investigating, but more cases probably do need investigating, and some will require further action. It is vital that where misconduct is detected it is dealt with. It is simple part of establishing an ethical culture.

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A few thoughts on the Butler Sloss controversy

Lady Butler Sloss, a former and eminent senior judge, with significant experience through a child abuse inquiry (Cleveland) of matters of child protection has been appointed to lead an independent inquiry into historical child abuse. Interestingly, she relinquished the Diana inquest when forced to have a jury trial. The Telegraph story at the time reported:

 “These inquests now require a jury, and I do not have the degree of experience of jury cases that I feel is necessary and appropriate for presiding over inquests of this level of public interest.”

It’s not immediately clear to me what form the Child Abuse Inquiry will take or whether it would prove as challenging forensically and managerially as a jury inquest of that import. My immediate concern is with the issue of whether Lady Butler Sloss should conduct the inquiry given the possibility that the same inquiry may investigate a matter her deceased brother had some involvement in. According to the Telegraph:

“Baroness Butler-Sloss told the BBC she was unaware of her brother’s link to the controversy and said she will not resign.”

I know absolutely nothing about it,” she said. “If people think I am not suitable, then that’s up to them.”

Now I think this interesting on number of fronts. The first is that she has indicated an unwillingness to resign. This is totally unsurprising. She is batting the issue back to the Prime Minister’s office who appear to have made an unfortunate error in the vetting of their preferred candidate to lead the Inquiry. I don’t think we should read too much into it from the judge’s perspective. She has time to reflect and change her mind and, as the Diana inquest shows us, she is not afraid to respond to new events.

The second element of interest is of more concern. She indicates an intention not to resign even though she knows nothing about the allegations around her brother’s involvement. This is a position which I think will become difficult to defend unless (somehow) a clear line can be drawn – and quickly – around the events that involve the former Attorney General, Sir Michael Havers. To draw that line, one would need to know the facts of the case Mr Havers is said to have looked at and decided not to prosecute, and one might also have to know the extent to which this event was an important example (or not) of the kind of establishment behaviour that the judge is required to investigate as part of her Inquiry. Suggesting a kind of Chinese wall around that issue within the inquiry is, I think, untenable.

The third element is the idea that it is first for others, not Lady Butler Sloss, to decide if she is suitable. She plainly did not take that view in the Diana case, and I do not doubt that she does not really take that view in this case. I would suggest it is axiomatic that any judge, particularly a judge of Butler Sloss’ calibre and experience, is the first consider whether to recuse themselves from hearing a case (or an Inquiry).

The normal test for a forced recusal in a court hearing is whether there is a real or apparent bias. As it was put in the Pinochet case:

…if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

I should caution here that bias does not connote some sinister conspiracy. The rather simple question is whether a reasonable and fair minded individual would be likely to perceive that the judge may not be impartial. Reasonable people may differ on the view but I would suggest that, as Lady Butler Sloss reflects on the unfolding situation, she will return to the point that no judge who knew material allegations were to be made concerning a relative of his or hers in a trial – even if that relative were not a defendant – would sit on that trial. She cannot yet know whether or how material her brother’s involvement is in the handling of child abuse allegations within the ‘establishment’. But the risk that she will find herself in an impossible situation is significant enough for her, on reflection, I suspect, to step back.

And nor should anybody criticise her for that, quite the contrary. She will have respected the dignity of her office, the needs of the immediate inquiry, indeed the reputation of her brother as a senior barrister and Attorney General. The seeds of the problem almost certainly lie elsewhere. This passage, again from the Telegraph, are instructively vague. The Government does not appear to have thought through the problems which have been placed in the judges lap:

Asked if the Prime Minister knew that her brother was the former attorney general, the spokesman said: “I’m not sure that piece of information is a particular secret.”

Asked if her brother’s role was discussed, he said the “focus was on finding the right person.”

Asked whether the Prime Minister shared the concerns of lawyers who fear it will create a poor perception among victims of abuse, the spokesman said: “His view is she does command widespread respect and confidence.”

Lady Butler-Sloss may need to investigate her brother’s role in the Peter Hayman affair, the spokesman indicated. The terms of reference will be published shortly.

Asked if she would be recused from that part of the inquiry, he said: “This inquiry will be able to look at every area that is deemed relevant.”

Again, it may be understandable that the Government is working out the details as it goes along. Lady Butler Sloss was in many ways a, perhaps the, commendable choice, but the scope of the investigation almost certainly rules her out of handling the inquiry.

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VHCCs: A secret plan to fight inflation?

So there is a rapprochement in the battle over Very High Cost Cases reported here by Catherine Baksi at the Law Society Gazette.  You can click on the link. Not that you’ll be much the wiser (and that’s not to criticise Catherine – far from it).  The outline of the deal appears to be:

  • the government will not seek to expand the Public Defender Service (PDS) now ‘normal working relationships have been restored’ (i.e. any more industrial action and you know what happens);
  • revised, apparently individually negotiated fixed fees, to be determined on a case-by-case basis will be paid to advocates undertaking the current batch of VHCCs;
  • those fee deals have not been revealed but, “the ministry was keen to stress that the overall payments will not exceed the amount originally budgeted for following the 30% cuts introduced in December”;
  • the Bar Council, Criminal Bar Association (CBA) and circuit leaders to work with the MoJ to design an alternative to the VHCC payment scheme (civil servants drawing lots not to get the job of shepherding that negotiation); and,
  • an agreement around interim payments has been made, so that barristers do not have to wait months or years for payment.

One might speculate that the agreed VHCC fees on existing cases are not very different from the original fee, but that interim payments have been offered to sweeten the pill.  Or it might be that there is a more substantial increase on offer (but then how is the budget figure reached? Perhaps there are fewer cases or defendants in the budget now?).  Who knows? I don’t.

Anyways, post Jeffrey and Sir Brian Leveson’s decision in the Operation Cotton case there was a desperate need for both the CBA and the Lord Chancellor to find some agreement which saved face – for both sides – and allowed more normal levels of hostility to resume.  Whether this is good or bad, who can say?  The deal – or something like it – was probably necessary as a matter of practical politics.  But we now have a situation where there appears to be a secret plan to save legal aid/cut the legal aid budget.*

I cannot sensibly comment on the claims of victory now being made, so let me comment insensibly.  I am reminded of this episode of the West Wing. Josh Lyman is tricked into admitting to a playful Press Corps that POTUS has a secret plan to fight inflation, when he does not. Josiah Bartlett (aforementioned President) gives Josh a bit of a talking to where the implications of this are brought to light and ends with this, “Are you telling me that not only did you invent a secret plan to fight inflation, but now you don’t support it?”

* delete depending on whether you are Lord Chancellor or not.

 

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All the gone Pseuds: Debt collection, Chicago style

The Guardian has added to a series of stories alleging, “Britain’s high-street banks are routinely issuing legal demands from what appear to be independent firms of solicitors designed to make struggling borrowers pay up. Yet the firms are not regulated by the legal profession’s watchdog, and are simply names used by banks’ in-house lawyers.” They allege the following:

• Royal Bank of Scotland and its NatWest arm have been using Green & Co Solicitors in Telford;
• Lloyds Bank uses SCM Solicitors in Hove, East Sussex,
• HSBC used DG Solicitors in Edgbaston, Birmingham (until January 2014).
No such firms existed on the SRA’s register, we are told. Other interesting characteristics of the letters are said to be:
• “the letters are signed by a lawyer who is individually regulated by the SRA.”
• Borrowers are often told their case has, “been escalated to a third party, using legal language such as “We are instructed by our client” and “We are likely to be instructed to commence court proceedings”.”
• The letter heading looks like that of an independent firm of solicitors.
• The letter, “typically uses a different address from that of the bank concerned”.
• Small print wording on the letters identifies the ‘firms’ as part of the bank or its litigation department.

The SRA are reported to be about to release guidance to stamp out the practice and the banks appear to be already in retreat, withdrawing or reviewing the practice.  We await hearing whether there will be further action.

The banks appear to be defending themselves by saying these ‘firms’ were/are a practising name of their in-house solicitors or a trading name (not that any actual trading is going on under the name) . Wonga took their approach the furthest by (in the Guardian’s words) sending, “letters from fake lawyers, whereas the individuals signing the letters from the banks are authorised and regulated by the SRA.” Wonga also manage to give their fake firm an Irish American feel which evokes, for me at least, a flavour of 1930s Chicago, “Chainey D’Amato & Shannon”. If we’re going to go for pseudonymous fakery we may as well make our lawyers sound like gangsters, I can imagine their risk function not saying.

Lloyds is quoted as making clear, “that SCM Solicitors forms part of Lloyds Banking Group’s in-house litigation department.” And that that every letter sent out bore the name of a solicitor within the department who took responsibility for that letter. Green & Co (the Pseudonymous law firm of RBS, perhaps intent on pointing out they’re new to this and not very good virtual legal practice), “had only “a handful” of cases open…[and] acknowledged that “we must make it clearer” to customers that it is an in-house RBS team.” A logo might help there, chaps. HSBC appear to have worked this out in January when they abandoned their use of the label DG Solicitors. Lloyds even managed to use the name of a firm that once existed that had subsequently been closed: SCM Solicitors. We await their ABS venture, Enron Law, with baited breath.

To be fair it’s not just the banks who are up to this particular trick. The Guardian report that the Student Loans Company magicked up Smith Lawson & Company Recovery Services as “branded correspondence” and that utility companies may also use the tactic.
But let me return to the banks that have their solicitors bravely put their names to letters under pseudonymous letterheads and the idea that this is okay because they are regulated by the SRA. The letters are clearly intended to convey an escalation in the debt process. In one sense that is quite a clever way of doing so; a nudge, if you like. But in another sense, it looks like a deliberately misleading statement. They appear to be deliberately creating a fiction: seeking to create a belief in some of their customers/debtors that is at variance with their own. Putting the true position in small print somewhere on the letter does not change that intention. Nor will it always change the effect of the letter. Such behaviour may fall below normal standards of honesty. It may also fall below legal standards of honesty (though that is rather different from saying an offence has been committed). Let me turn then, briefly, to whether the solicitors involved in pseudonymous law firms have breached their professional obligations.

Firstly, there is a substantial risk that the solicitors who signed or were involved in the production of the letters have breached their obligation to act with integrity. This depends, in large part, on whether it is accepted that these letters were deliberately misleading. There is also a significant question as to whether the obligation to, “behave in a way that maintains the trust the public places in you and in the provision of legal services” has also been breached. More specifically, there is a question over whether Outcome 11.1 (rule 11.1 in effect) has been breached that is solicitors must not, take unfair advantage of third parties [the debtors] in their professional capacity. Perhaps unsurprisingly, neither the rules nor the guidance (indicative behaviours) take account of the possibility that lawyers might make up law firm names to threaten litigation under, but if, “using your professional status or qualification to take unfair advantage of another person in order to advance your personal interests” is likely to be contrary to O11, then using a fictitious professional organisation to take advantage of unsuspecting debtors to advance a business’s interests is also likely to be a breach of the rules.

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