The point which caught my eye, picked up also by a Lawyer commenter Oxford Lawyer, is here:

“In the telephone conversation on 18 June 2012, Rogers gave Metz confidential information about his practice, including detailing his personal billings of HK$75m-100m (£6.4m-7m) and his supervised billings for his practice of HK$200m (£17.4m), as well as his personal billing rate of HK$9,500 (£773) per hour, according to the filing.”

Now assuming a) this information is correct; b) personal billings refer to his own billings rather than those of his team; and c) this refers to billings over one year, then this particular partner’s personal bills are the equivalent of working 7,900 to 10,500 hours at that hourly rate. I think this is what the costs gurus may refer to as value billing. 7,900 hours works out at 22 hours per day and 10,500 at 29,000 a day for 365 days a year. On top of that there the time necessary to supervise all those other billings.

Either my assumptions are incorrect, these figures are incorrect or we witness the first bionic lawyer; slipping through a space time continuum perhaps to create extra hours in the day. Even assuming some variation in the hourly rate, or work done other than on an hourly basis (say a contingency basis) these figures seem high. Perhaps someone can enlighten me?

…..

Postscript: a comment on the Lawyer story says this, “I think his personal billings of HK$75m-100m (£6.4m-7m) refer to his billing and the billings of the associates on matters which he is the billing partner. £6m-7m sounds about right to me. His supervised billings for his practice is the billing for the whole team including other litigation partners.”

That is the fascinating issue explored in a new paper from Maryam Kouchaki from the Edmond J. Safra Center for Ethics at Harvard. I urge all of you with an interest to read it.

She begins by exploring why one might doubt the ethicality of professionals. One thread she draws upon is work on moral licensing. The theory that one’s ostensibly positive history, context or group membership permits, “one to legitimately do or say something that otherwise would discredit the self”. (9) There is a line of research that demonstrates this moral licensing effect. To give a topical example which might be applied to debates about judicial diversity, managerial decisions in organisations that are explicitly presented as meritocractic favour men over women by paying equally qualified men more than women (citing Castilla and Bernard’s work, see the paper for details). To continue in that theme, people led to believe they are objective are more likely to demonstrate bias.

Is it possible, then, that the moral superiority claimed by professionals has negative impacts. Does thinking we are good, make us bad? A second reason Kouchaki suggests this might be the case is that professional schema may emphasise self-identities (or schemas or professional performance) that privilege rational over emotional intelligence. Many lawyers will I suspect agree that this is so, but argue it is a good thing. Kouchaki draws on moral psychology to point to the dangers of such a view.

Theory aside, the piece concentrates on a narrower hypothesis: a professional self-conception increases the likelihood of unethical behaviour. Thinking of oneself as professional increases the likelihood that one does wrong. Does this hypothesis stand up?

It is tested in three studies using students. In these studies the students are primed to think of themselves (or a third party) as either an employee or a professional and then asked to perform particular tasks. The first of these involved a conflict of interest task. They are asked to advise a third party how many beans are in a jar. If they exaggerate the number beyond the true number they stand to gain. In the second and third experiments they were given a cheating task. They are incentivised to cheat on their answers to a test. In these experiments those who were primed to think of themselves as professionals were more likely to behave unethically by overestimating to benefit themselves in a situation of conflict of interest or cheating on the test. The assumption is, and the evidence of these tests supports it, that assuming the role of a professional leads to more unethical acts. The ‘professionals’ cheated more.

A fourth study was a survey using Amazon’s mechanical turk with a similar behavioural test to the first study. The survey identified respondents’ actual occupations and professional identification. Again identifying as a professional (which included a range of occupations such as doctors and lawyers) was a significant predictor of unethical behaviour. This time the identification as a professional was based on the person’s actual occupation, rather than simply being asked to imagine they were a professional.

The implication is that thinking of oneself as a professional increases the likelihood of unethical behaviour. Now of course this is a study which measures unethical behaviour within surveys rather than in the real world. It is possible that being a professional might make one more tolerant of minor ‘ethical’ infractions, particularly when they occur within the context of surveys. It is similarly possible that thinking of oneself as a professional is rather different from actually being a professional and working in the professional domain. So this study does not prove that a lawyer would be more or less ethical when being a lawyer simply because they see themselves as a professional; but it does alert us to the plausible risk of that possibility. Similarly, there are many other influences on a professional qua professional; the rules, their training, and their environment, to name three. Nevertheless, the results are troubling and a signal that us professionals should not be too quick to reject the risk that we may be prone to go a little too easy on ourselves as ethically superior when taking decisions or forming judgments. Thinking of ourselves as professional is not enough; we have to be professional too.

I acknowledge the Government’s overall aim of making significant further savings in the legal aid budget.  Whilst there is a substantial possibility that the proposals will increase, rather than decrease, overall costs to the Ministry of Justice and/or sibling departments; the more important and substantial issue is the significant detriment to very vulnerable clients.  Cuts of the magnitude proposed will lead to a significant diminution in the quality advice and assistance clients will receive in cases of the utmost significance.  Criminal law cases most often deal with significant risk to a person’s liberty; and the public law cases targeted by the reforms will often deal with substantial matters of liberty, harm and acute vulnerability.  Practitioners in legal aid who do not exit the market altogether faced with unit cost cuts will be forced to accept lower levels of overall income and, in particular, as they attempt to limit the decrease in income they will seek to increase case volumes and decrease the time spent on those cases.  Whilst it is conventional to hope for efficiency gains in such circumstance, given the labour intensive nature of legal services work, the overall impact is almost certain to be a significant diminution in quality.

PCT

On top of any impact from reduction in unit costs, PCT also raises matters of significant concern.  Research in the health sphere is clear in establishing that price only competition damages quality.  It is vital that the Government reconsiders how competition on quality can be built into any system of competitive tendering.  It is also vital to consider broader monitoring and development of quality.  Consideration should be given to developing system wide outcome measures (as has been employed in Chile); case load limits; and, recognition and incentivisation of experienced staff in pricing.

I acknowledge the difficult fiscal and political position within which the Ministry operates but I am afraid the speed with which PCT is proposed to be implemented can only be described as reckless and short-sighted.  It has long been the wish of administrations to introduce a form of competitive tendering.  That wish has been frustrated by the severe practical difficulties in implementing any scheme.  Those practical difficulties are exacerbated both by an undeliverable timetable and the extremely troubling proposal to force contractees towards one size.

I hope the MoJ consider very carefully the lessons from the development of CLACs and CLANs where there was a similar (but less severe) attempt to push providers into single new providers and consortia.  There is a very high risk of failure, waste and mismanagement in such a system.  The Public Defender Service also provided a lesson in how administrative dictation of size of provider can lead to inefficiency.

I wish you to note my concern at the misuse of the Public Defender research by Bridges et al which I co-authored.  The quote has been taken out of context and is misleading.

The Choice Issue

The proposed model suggests client choice must be removed to make the proposals work.  There are a number of problems with such proposals.  Let me emphasise the ones on which I, as a researcher, have a particular perspective:

• The Scottish Public Defender pilot attempted to direct clients by birth date.  This failed for a variety of reasons, including the practical importance and operation of the exceptions.  Any system must have exceptions and there is a risk to the stated aim of the proposals that such exceptions will simply build in too much instability for direction to work as a tool for managing contract sizes.
• A secondary impact of direction was significant reductions in client satisfaction with the service.  Having been forced to go to a ‘state’ provider, the legitimacy of the service declined significantly.  This may have a range of knock on effects, not least a reduction in the willingness of clients to accept advice on plea, venue, conduct during interviews and the like. This impacts on quality and cost to the court and police budgets.
• Client choice also provides important long stop protection of quality.  It is true that clients are not sophisticated consumers of advice.  Nevertheless they can assess service quality and the extent to which the lawyer remembers relevant facts about their case.  Client views are also related to the impact of outcomes on their judgments about lawyers.  Thus client satisfaction, and client choice, are proxies for quality which it is important to maintain within the system if at all possible.

Litigants in person

There is a growing concern with litigants in person in the criminal justice system. The removal of choice and changes to financial qualification requirements are likely to exacerbate this.  As far as I am aware, there has been little consideration of the issues posed by this in cost or practical terms, a position which contrasts unfavourably with family work in particular.  In research and policy terms it is a black hole into which some light ought to be shined.

Public Law Cases

There are a number of potentially serious results which could flow from proposals on public law cases. Rather than assume a Government that takes seriously legal obligations and the rights of unpopular individuals in positions of significant vulnerability, let me concentrate on some more pragmatic implications.

By taking matters out of scope, it may generate large numbers of exceptional funding applications. When turned down some of these will be subject to judicial review. Judicial receptiveness to such claims, which I would anticipate would be high, may produce a cascade of further reviews and funding decisions.

Linking payments to results on leave applications is an interesting idea, and I understand the desire to encourage greater sharing of risk to the fund.  This is a de facto remuneration cut which has a number of potential (and rather unpredictable) consequences. The remuneration cut may force some firms, particularly better firms able to diversify, to give up the work.  There is not the evidence on which to judge this objectively, but given the proportion of pre-leave settlements, there is the potential for such a change to decimate such work.  A second response is that firms will rush to get leave and ensure payment.  This would increase unit costs to the fund and increase costs of those responding to judicial reviews.  A third response is that the judiciary, mindful of the need for judicial review, will increasingly be asked to, and award, inter partes costs orders.  This too may increase costs to other government departments.

There is a further concern that specialists in prison law cannot practice without criminal defence contracts. The forced merger/consortia approach of the PCT proposals risks spreading its harm further. One potential upside to such firms, but a downside for the Ministry, is that merged firms will become better at identifying potential prisoner cases because they are working more closely with criminal defence practitioners. If this were true (and there is evidence of such effects from the Trouble Shared research I conducted for the Ministry of Justice) then there would be upward pressure on case numbers and costs to offset reductions from stricter merits tests.

The way legal risk is managed in government

The Government Legal Service does a difficult job.  There is pressure from Ministers to deliver proposals which bear sometimes substantial risks of illegality.  Judicial review acts as a not insignificant check on arbitrary abuse of power; careless implementation of reform; and poor judgment on legal risk.  Good government has both political and economic benefits and these proposals weaken it.

A second way of thinking about this issue is to consider how lawyers may respond to cases if illegality is no longer funded, or rendered uneconomic.  Often it may be nothing can be done in legal terms and the Ombudsman may see a significantly increased workload (as may politicians) from self-representers and organised campaigns. Lawyers will, on occasion, find other litigation mechanisms through which to bring client grievances.  Given the nature of funding more generally, such litigation would be likely involve compensation claims and inter partes court costs.

These risks should be borne in mind when considering the modest predicted costs savings associated with reducing the legal aid budgets in these areas.

The paying public

A final point is that partly because of the changes predicted by this document, and partly because of broader changes in the legal services market (especially direct access to barristers), there will be an increase in private work being conducted by practitioners.   The potential for regulatory problems (such practitioners overcharging vulnerable clients) is significant.

The findings that particularly caught my eye were of a different kind though were about attitudes to risk. The following table summarises their data on their risk indicators. Interesting more respondents (and it is a very large sample) took the view that law and regulation provides a fair environment for business than did not (although the differences are not large) and a strong majority saw legal processes as essential to enforcement of their rights. The latter is interesting at a time when court fees are being increased. The stronger sentiment is also that lawyers are not seen as a cost effective means of resolving legal issues (although an interestingly large minority are unsure on this and those who have used lawyers appear less likely to say this than those who have not). Shortcuts appear not to garner support in competition terms. Interestingly, the importance of compliance with the spirit of the law splits views:

Because the data is available on the LSB website I did some quick analysis of the different attitudes of those who were lawyers or had legal training who responded to the survey. There were 301 who described themselves as “qualified lawyers or had had training to deal with legal issues”. As a shorthand, I am going to call this group the lawyers. The lawyers were more likely to agree a business can’t get ahead without taking risks (79% to 71%). Slightly less likely to agree overall that product or service quality was more important than profit margin (79% to 85%). They were more likely to agree being competitive involved taking shortcuts (27% to 13%). They were more inclined to agree that law and regulation provide a fair environment for business to succeed (47% to 33%). They were more inclined to agree that it was more important to comply with the spirit than the letter of the law (41% to 29%) and more inclined to agree legal processes are essential to enforce businesses rights (65% to 57%). Similarly, they were more inclined to agree lawyers provide a cost effective means to resolves disputes (40% to 16%).

There is an intuitive sense to this: those with legal training or qualification were more prone to see commerciality as necessitating risk and corner cutting and more responsive to the concerns of the law (although being responsive to the spirit rather than the letter of the law can have two different meanings). As they tended to work in (slightly) larger organisations, this may be as much a reflection of their organisations as it is of the impact of legal training. Also we do not know precisely what the nature of legal qualification or training the respondents had. Nevertheless, it is an interesting indication that legal training might have some impact on how people see the world once they are within it.

The top five reasons that influence students to apply for a training contract at a particular firm are career prospects post-qualification; the brand of the firm; gender equality; impressions gained from a summer placement and the availability of LPC funding. Salary and benefits are lower priorities, according to our survey, with perceptions of work/life balance and a law firm’s performance at a graduate fair further down the list.”  (my emphasis)

With gender diversity at partnership level still concerningly weak.  May be firms will start to take this issue seriously And, dear students, when making your assessments of firms, do not be fooled by mentoring schemes and the like.  These have their virtues but what really counts is numbers: what proportion of women are on the partnership; what proportion have been promoted recently.  Firms can fiddle with process to give the feeling and appearance of action, but soon or later reality will bite.

The proposals include (I have taken these from the Law Society’s summary):

1. Reduce scope of prison law to cases that involve length of detention and adjudications that require representation to comply with Article 6
2. Residence test for civil legal aid restricting eligibility to those with at least 12 months’ lawful residence.
3. Legal aid payments for judicial reviews will only be made if the permission application is successful.
4. Civil cases to have at least 50 per cent change of success – ‘borderline’ cases no longer eligible.

There are a number of potentially serious results which could flow from such proposals. Rather than assume a Government that takes seriously legal obligations and the rights of unpopular individuals in positions of significant vulnerability, let me concentrate on some more pragmatic implications.

By taking matters out of scope, it may generate large numbers of exceptional funding applications (the safety valve procedure by which the MoJ hope the Legal Aid Agency can avoid Article 6 challenges to the lawfulness of denial of legal aid). When turned down some of these will be subject to judicial review. Any judicial receptiveness to such claims through, say, granting some of them may produce a cascade of further reviews and funding decisions. Item three will encourage firms to issue proceedings in any circumstances where they are able to get paid. There is the potential for this to create more cost than it cuts.
There are a number of response to 4. It rather depends on how well firms can identify which cases have prospects of success. I have seen no persuasive work on this. If the nature of the work is such that predictability is very difficult, then firms will be able to pick very few winners; they will cut caseloads dramatically to a small number of ‘dead-certs’ or give up altogether. This may kill off certain areas of work. There is a further concern that specialists in prison law cannot practice without criminal defence contracts. The forced merger/consortia approach of the PCT proposals spreads further. There is a good case for saying it is a wasteful process with uncertain outcomes; though it may also aid prison lawyers to better identify (and therefore increase somewhat) the identification of prison law cases that can be run. It is another way in which the reforms may drive up costs.
Another response is to seek inter partes costs orders in judicial reviews far more frequently than now. This would have two effects: increase the burden on courts; and, where successful, shift what was once legal aid expenditure onto other public bodies and departments.

Now in all honesty, I do not know how bad this is. These are just plausible ideas about potential problems. They make sense to me; but I do not know how serious the issues are in fact. I have read, rather quickly because it pained me so, the Government’s impact assessments. These are never very convincing documents; but these ones looked more superficial than normal. I was not at all convinced that the Government knows what it is doing. If costs rise and costs are spread to a wider range of departments, the MoJ may look incompetent to its sibling departments and the Treasury. It will be of little comfort to anyone: bad cuts, beget more cuts.

Public law work associated with immigration and prison law cases is not glamorous or popular, but it can be important in rule of law terms, and also deal with matters where human vulnerability is intolerably acute. Cases that deal with children, mental health problems, and the hospitalised as well as some of the State’s dirty washing (aberrant behaviour of troops abroad, behaviour of the security services) protect essential elements of humanity and democratic health. These changes may also cost us more because of a hasty intervention to save modest sums of very small parts of the legal aid budget.
There is a meeting at the LSE on Monday to discuss these issues. I hope practitioners and others come with good questions and even better answers as to what these proposals mean. There is a good deal of understandable, but overheated rhetoric, on other elements of legal aid and associated reform. The professions need to speak up beyond criminal law but do so in measured and forensic terms that speak to the Government’s concerns. Details of the event are here.

Michie et al call their model the behaviour change wheel. It is a non-linear and therefore does not specifically model linkages between the different categories and subcategories within the model. However, it does provide a framework within which one can reality check comprehensiveness of analysis behind behavioural change initiatives.

They create the COM-B framework which suggest that capability and opportunity influence motivation which in turn generates behaviour (4). Capability is split into physical and psychological capabilities; opportunity into social and physical influences on how we think and act; and motivation into automatic and reflective processes. I have been doing work on the role of values, culture and incentives on the reflective processes of lawyers, so this struck a chord with me. I have modelled ethical decision making by suggesting that behaviour is influenced by three Cs: character, context and capacity – many of the sub elements of this model map onto the Michie model. There are two further layers to the model making it of practical interest. The kinds of policies that are used to influence behaviour are familiar to most of us (communications/marketing; guidelines; fiscal incentives; regulation; legislation. There are two more – I would be interested to hear if these two are used by law firms or in-house teams to manage risk and ethicality, they are: environmental/social planning (designing and/or controlling the social environment) and delivering a service (internal anonymous advice hotlines for ethics problems may be an example here, though do firms offer these?).

The most interesting element was the way the Model anatomises about how these policies actually employed rather different interventions (and here I quote from the article directly). The interventions are:

• education (increase in knowledge or understanding)
• persuasion (using communication to induce positive or negative feelings or stimulate action)
• incentivisation (creating expectation of reward)
• coercion (creating expectation of punishment or cost)
• training (imparting skills)
• restriction (using rules to reduce the opportunity to engage in the target behaviour (or to increase the target behaviour by reducing the opportunity to engage in competing behaviours)
• environmental restructuring (changing the physical social context)
• modelling (providing an example for people to aspire to or imitate)
• enablement (increasing means/reducing barriers to increase capability or opportunity)

I have been doing work on ethical consciousness amongst lawyers and what has struck me to date (the work is ongoing) is how far thinking about ethics is influenced not by ethical rules or principles but by business principles and the needs of the (lawyers’ own) firm. Expectations of reward are geared around billing: heavily economic incentives influence judgments about risk and ethicality. My impression is that attempts to train around ethics are minimal and education tends to focus on instrumental approaches to key rules (bribery being current flavour of the month for obvious reasons). Relatively little work goes into persuasion. Tone from the top is of course seen as important; as is the risk of punishment should egregious conduct be exposed. We could see tone from the top as persuasion or modelling, but I harbour doubts about how deep tone from the top – or indeed the middle –runs within law firms. The babbling brook of financial targets runs more noisily and more quickly. There is a tendency still to see ethics in particular as a matter of education; and something which ought to occur before practice., whereas once in practice ethics is perhaps assumed.

Whether this is something to be worried about is moot. For all that examples of potentially aberrant behaviour are revealed by (say) the hackings scandals or the travails of banks, we do not know how common ethical problems are. The issue of legal risk appears to be a different matter. In-house lawyers and their employers are increasingly concerned about legal risk: predicting, managing and ameliorating it. To the extent that they are trying to modify behaviour within their own organisations . They might want to look through the list of policies and interventions and consider whether there are some approaches which may be missing from their armoury.

The attempt to force firms to merge or form consortia to bid for contracts is of particular interest  Add tight timetables, reduced remuneration, and a one size fits all contract to the mix and there are opportunities for significant problems even with very well managed bids.  Community Legal Aid Centres and Networks were an attempt to do something similar with a much gentler timescale and within a looser framework.  Competition as a means of forcing unwilling providers together is fraught with difficulties.

The second point, which has not garnered much attention, is that the consultation pushes criminal defence firms and (through direct access) barristers towards charging privately for work.  Messy boundaries between legal aid and private work; the possibility of ‘unbundled’ models of criminal defence practice; the risks of vulnerable punters being the victim of sharp charging practices (exacerbated by the desperate straits some firms will find themselves in) and the rise of unrepresented litigants in Magistrates and Crown Courts may be giving regulators and Courts headaches for some time to come.

In the course of this review it appeared evident that while users would like legislation that is simple, accessible, easy to comply with and not unnecessarily burdensome, at present those are not the features of modern legislation.

Some of the reasons for legislation falling short of what users hope for are inescapable. But there are other factors which ought to be within reach of government, Parliament, publishers and others – either acting in their own sphere of influence or in partnership.

For that to happen, there needs to be a shared ownership of, and pride in, our legislation. And pieces of legislation need to be regarded not just as documents in their own right, but as parts of a larger mosaic of legislation. It is the aggregate to which the user will have access to.

There also needs to be a stronger incentive on all involved in the process to avoid generating excessively complex law, or to act positively to promote accessibility, ease of navigation, and simplification.

The Guardian are hosting an online debate at 12 noon today (Friday). The extent to which simplification is possible and desirable is, of course, a matter for debate; and a debate which will have to encompass the sometimes counter-productive approach of common law decision making; but the prize for any progress on the initiative is improved in efficiency, effectiveness and access to justice (see here for my previous thoughts on that subject).

Let me highlight some of the findings in the Cabinet Office Report as part of my encouragement for you to read it

• “Even legally qualified users frequently complain about the excessive complexity of legislation and often tend to read the explanatory notes accompanying the Bill, rather than the legislative text.”
• “The vast number of legislative effects and their complex interconnections mean that currently the legislation.gov.uk database is not currently entirely up-to-date. However, the National Archives are tackling this problem via their Expert Participation Programme.”
• “The mystification of legislation though, seems to be generated by the difficulty that users experience in accessing reliable, clear information on their rights and duties, combined with a lack of guidance on the compliance requirements relevant to them and their specific circumstances.”
• “The legislation.gov.uk user study also found that the comprehension level of legislative texts by both legally qualified and non-legally qualified users was generally quite low and that all users found it challenging to read legislation and demonstrate their understanding of it. Most users interviewed said that they expect legislation to be hard to read – even barristers.”
• “until recently, legislation, legislative techniques and interpretation were often neglected in undergraduate teaching”.

   

A sense of the complexity is shown by this diagram of the links between when looking at the current in-force state of just one Act.

That legislation.gov.uk should not be an up-to date and public database of statutes in force is something of a scandal given that, as citizens, our ignorance of the law is no excuse even, as this report shows, if that ignorance is inevitable. Publishers put substantial resource into current law together and making it (more) intelligible; but then sell it on to those who can afford it. It will be interesting to see whether there is any incentive on them, or suppliers of legal services to provide anything approaching digestible access to the law. What we really want to see is a People’ Halbsury’s Law of England – a Hurculean task (and one requiring a name the public rather than us lawyers would recognise). LSB/LSCP research suggested that the public is mistrustful of private providers doing this job (partly, I suspect, because provider information tends to rather quickly signpost the user towards paying for advice). Unbundled service providers have more of an incentive to produce genuinely useful information, but risk significant investment which cannot be recouped. Universities have something of an interest in getting involved for the educative benefit of their students; and as part of their broader mission to engage with the public; but that interest has real practical and resource limits. Furthermore, as we are beginning to see as regards pro bono clinics, these kinds of initiatives risk being used as part of a process of differentiation or marketing by law schools. This militates towards reinvention of wheels and fragmentation.

So the path towards good information about law; never mind good law, is a difficult one, facing significant obstacles; but it merits significant support.

But all of that is of no moment.
He had indicated that he was soon to move
and he has moved from the mooring.
He has thrown off the bow lines
and sailed away from the safe harbour
though whether to catch
the trade winds in his sails
or just withstand the buffetings
of the gales in the English Channel
I know not.

After underlining that this is his penultimate judgment after 18 years in the Court of Appeal, he continues:

I am a kindred spirit
who has sailed away from the safe harbour
of the Royal Courts of Justice,
not at all sure how to explore,
or what to dream
or what I am about to discover.

I wonder if his final judgment is written. Perhaps a judgment in blank verse beckons.

(HT Adam Wagner and Andrew Keogh for spotting this)

This case was one of series brought by Mr Elliot, a whistleblower turned litigant in person various people connected with Stobarts. For our purposes the most interesting of these is Mr Trevor Howarth, Stobarts Group Legal Director and Managing Director of Stobarts Barristers. Mr Elliot’s case is a troubling one on a number of levels, which HH Judge Pelling QC sets out admirably. Twice committed for contempt (once suspended), and bearing a significant grievance for having a final hearing proceed in his absence shortly after (he alleges) leaving prison and having attempted suicide he has somewhat remarkably managed to get some of his 59 allegation of contempt beyond the leave stage. The case is a salutary lesson in how, buried within long, irrelevant and ill-founded applications sometimes made by litigants in person, even those at the more difficult end of the spectrum, may have points. And points of some significance.

It is probably wiser for me not to stray too much into the allegations, but some key points can be outlined. They relate to allegations that an injunction was sought ex parte restraining Mr Elliot on the basis of oral evidence, and then witness statements which, in material respects were untrue. Two of those questionable statements were made by Mr Howarth. It is worth saying that Mr Elliot was imprisoned as a result of subsequently breaching that injunction.

To succeed at this hearing Mr Elliot had to provide strong, prima facie evidence that the allegedly false assertions contained in witness statements filed by the Stobart Defendants were made knowing them to be false, and that they would be likely to interfere with the course of justice. Knowledge is also proved if a statement was made by someone who effectively does not care whether it is true or false (i.e. they are reckless). Carelessness is not sufficient.

At trial, he will have to show this beyond reasonable doubt. As a litigant in person. I am guessing he’ll be up against a QC, but I may be wrong. The mind begins to boggle and judges begin to book their holidays or have a quiet word with their listing officers. Mind you, he has done astoundingly well to get this far, and all credit to Judge Pelling on the patience necessary (I apprehend) to deal with the pleadings and the considerable care needed (I imagine) during the hearings. As the judge points out: permission will only be granted if there is a strong prima facie case shown and the Judge is satisfied a) the public interest requires the committal proceedings; b) they are proportionate; and c) in accordance with the overriding objective. These are not easy tests to satisfy, although that does not mean his allegations are made out. He also had to satisfy the judge that his applications should succeed even though he had been previously found to be an untruthful witness by another judge on another occasion. HHJ Pelling appears, then, to have been looking very carefully at corroboration in deciding which allegations should proceed.

In a nutshell, the key points in so far as they related to Mr Howarth, are that his supporting of two statements made by the current CEO of Stobarts in the injunction proceedings were untrue and made knowingly (or recklessly). One of those is a claim that it was his opinion that Mr Tinkler has been held to misrepresent documents was wholly untrue. This was in spite of the fact that Sharp J having had said that Mr Tinkler had “misrepresented the effect of a document that he had not exhibited” at a previous hearing (para. 60). Mr Howarth claims he did not recall this adverse statement against his client when making his own statement to the court. As the judge puts it, “The proximity between the date of the judgment (15^thMarch 2012) and the date of the statement to which this Allegation relates (13 June 2012) does not make this self evidently correct. It does not justify simply rejecting the allegation out of hand without at least requiring it to be tested by cross examination.”

One defence appears to be that this was just a slip at the time. That is, Mr Tinkler’s mispresentation was made in error. The judge rejects the relevance of this, “In my judgment the material available establishes a sufficiently strong prima facie case that Mr Howarth’s statement was false in the sense that he could not honestly hold the opinion claimed, and was known to him to be false at the date he signed the statement as was the fact that if it was false the misstatement was likely to interfere with the course of justice.”

A second allegation is that when Mr Howarth says that “… as a consequence of the previous outrageous and incorrect allegations made by Mr Elliott to the CAA that WADI was conducting its flying operations unlawfully, a long expensive and detailed investigation was undertaken by the CAA into the WADI operation”. Saying Mr Elliot’s allegations were “…outrageous and incorrect …” was false and was known to Mr Howarth to be false at the date of his witness statement. There is a letter from another firm of solicitors suggesting that the Company knew, even perhaps accepted, that there was substance to the allegations. Again the judge finds a sufficiently strong prima facie case that the assertion that his allegations were false and known to Mr Howarth to be false to pass the threshold test allowing the allegations to proceed to trial.

Again, I emphasise this is not the same as saying the allegations are made out. Whether they are or not, there is though the broader point which is worth remembering: Mr Howarth’s statement was presumably being made as legal director for the company on the basis that his statements of opinion and fact would carry greater weight with the court as a lawyer. Whether Mr Howarth’s claims were made knowing or reckless as to their truth, they were wrong. Was he straining too hard to help his employer company?

A point raised in the judgment is, is this case just a vendetta by a failed litigant in person with a familiar sense of grievance at his treatment by the courts (or more pertinently perhaps his opponents)? Was he seeking to re-litigate the previously failed litigation and smear Stobarts in the process? Whether this is the case or not, I was surprised to see Stobart Defendants’ counsel, “submit that even if a strong prima facie case of contempt has been demonstrated the court should refuse permission because to give permission would be to facilitate Mr Elliott’s ulterior purpose.” That is if there is a prima facie case of dishonesty by a party and their legal director we should pass over it because it pours oil on the troubled water stirred up by a litigant in person. That is an argument I would not relish making: should we do not care about the honesty of lawyers in such situations? It may illuminate, though, an attitude that litigants in person might thought by some as somewhat beyond the normal respect of the courts or the rule of law.

Thankfully, the judge rejects the argument on the basis that a contempt hearing will be confined to the contempt allegation. But also on this basis:

The real point however is this – if, as is alleged, Mr Tinkler and Mr Howarth have knowingly made false statements then the fact that the proceedings may attract unwanted publicity or expose the respondents to unwanted litigation ought not to be permitted to trump the public interest issues that I mentioned at the start of this section of the judgment. Likewise the fact that the Stobart parties were able to obtain the Tetlow Order in the absence of Mr Elliott and without any meaningful consideration of the evidence or the law ought not be permitted to prevent the investigation of the limited number of allegations of contempt where I have found a sufficiently strong prima facie case to justify granting permission.  The requirement for a strong prima facie case to be demonstrated before permission is granted operates as a filter to prevent scurrilous allegations from being made and if the allegations should ultimately be found not to have been proved then a judgment to that effect will vindicate those against whom the allegations are made.

We shall see.

1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.
2. What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.
3. My second concern is that the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation. Both tracks are intended to meet the modern day demands of civil justice. The raison d’être (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation. Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey v Milton Keynes General NMS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002, for which I am partly responsible, where at [9] in the judgment of the Court (Laws and Dyson LJJ and myself), Dyson LJ said:

   “It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”
   

Was this observation obiter? Some have argued that it was. Was it wrong for us to have been persuaded by the silky eloquence of the éminence grise for the ECHR, Lord Lester of Herne Hill QC, to place reliance on Deweer v Belgium (1980) 2 EHRR 439? See some extra-judicial observations of Sir Anthony Clarke, The Future of Civil Mediations, (2008) 74 Arbitration 4 which suggests that we were wrong. Does CPR 26.4(2)(b) allow the court of its own initiative at any time, not just at the time of allocation, to direct a stay for mediation to be attempted, with the warning of the costs consequences, which Halsey did spell out and which should be rigorously applied, for unreasonably refusing to agree to ADR? Is a stay really “an unacceptable obstruction” to the parties right of access to the court if they have to wait a while before being allowed across the court’s threshold? Perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of developments in this field.

The implications are fairly clear in so far as it is a critique of government policy. The question I want to focus on is, what happens next? It may be that judicial resistance of this kind and any research into the aftermath*may lead the government to rethink and refund legal aid. I am doubtful of that but it is not beyond the bounds of possibility. More likely, MoJ/HMCS might rethink how courts are staffed and supported, but I am not very optimistic about that, save perhaps some marginal changes as regards self help types of support. Quite a lot of beneficial work could be done here, but I imagine it will occur in a piecemeal and underfunded way, at least in the short term.

Another way of seeing this is that judges are undergoing a process of potentially profound change. They are in the process of both railing against and learning to accept the increasing presence of litigants in person within the courtroom. Change management fetishists will recognise these stages in the process. Step one, perhaps closest to denial, is persuade the government to refund legal aid. Step two is to suggest an alternative that probably won’t work (consider compulsory mediation as an alternative – as Sir Alan’s remarks might imply). Compulsory mediation is not a wholly flawed idea, but I’d suggest it has more demerits than merits (see in particular my colleague Hazel Genn’s research). Step three is adapt. An interesting point noted in Sir Alan’s judgment is that the first instance judge in this case did do so: “He struggled manfully, patiently, politely, carefully and conscientiously.” And then he adds, “Many may not have done so.”

An interesting question raised by these last six words is what would have happened in cases where the judge refuses to engage? A further question is whether the failure to do so is, or will remain, an acceptable approach for judges in the future? Let me not understatethe perils of engagement. Litigants in person present a significant set of challenges to any judge. ‘Reaching over the bench’ to assist is not an activity without perils. However, it may be essential to achieve any semblance of just resolution. It may also tend towards parties (particularly represented parties) questioning the impartiality of the process. It is difficult to see how judges can model their approach on an entirely passive arbiter model. Many, especially district judges I would imagine, manage this balance every day. Judges are having to develop new approaches to hearings. Courts are mixing – of necessity – adversarial and inquisitorial approaches. I do not celebrate the change (though it has some advantages to be held in mind amidst all the anxieties) but there will come a need to accept, adapt and understand the implications of this change for judicial practice; court process; lawyers ethics; and, the proper administration of justice.

*I should declare an interest as a member of a team looking at self represented litigants litigants in person in the family courts looking at what is happening now.

Let me start by saying that in important respects I agree with the main thrusts of the substantive arguments presented by the Bar. Firstly, I tend to agree that the rule does no harm. Secondly, I tend to the view that it probably does some good. (See here for the contribution via the BSB and here for the Bar Council paper). I agree that there may be some occasions where a client with an unappealing or unpopular case can be helped by a cab rank rule. I suspect that the cab rank rule may or does discourage barristers from declining to accept the instructions of such clients on occasion. I agree also that this would be difficult to prove or disprove from disciplinary data. I think the economics of infamy would tend to mean a lawyers’ practice was not harmed by representing odious clients (that the publicity from representing unpopular clients may improve a lawyer’s client base rather than damage it), but I think the risk of odious clients not getting representation is sufficiently – if rarely – present to be meaningful and to justify the rule.

Similarly, the claims that the cab rank rule can be, and is sometimes, used to prevent big clients ‘scooping the pool’ are not to be sniffed at. That is, imagine I (a bank) instruct you on matter A to make sure I get all the good banking lawyers advising me and then you get instructions to sue me from a depositor on matter B. You might be able to resist my complaints on the basis of the cab rank rule. I suspect that plenty of practitioners specialise in one side of the dispute or the other; my economic power means you would be taking a risk with the future of your practice in your hands; and my objections on confidentiality would have to be given much thought, meaning this happens rather rarely, but let that pass. Rarely does not mean never and rarely in the absence of harm is probably good enough to maintain the rule, or something like it.

I also agree with the argument that the cab rank rule provides something of a prophylactic when a barrister meets public hostility for representing a Levi Bellfield or for cross-examining a Frances Andrade. It is true that there is already a rule that the barrister fearlessly represents their client which covers the point and, of course the cab rank rule does not legitimise improper defence behaviour; but I see the rule has a useful – albeit somewhat misleading- explanatory power with the public.

I am not sure a lot is gained by considering whether or not the rule is “always observed” or “is regularly breached”. Much is made of the “unfounded” nature of the claims that it is regularly breached; but both sides of the argument lack persuasive evidence on the point. Breach is too unobservable to be truly measurable. Neither researcher, nor solicitor, nor senior member of the Bar nor judge can truly know what is happening in this regard. It is also a legitimate and rather too swiftly dismissed point that the exceptions to the Cab Rank Rule (both formal and pragmatic) are wide enough to permit any reasonably competent barrister to get out of a cab rank brief should they want to without breaching the rule save within the confines of their own conscience. Equally, the obverse is true: the rule supports, with diminishing symbolism (see below), those that wish to hold to ancient values which the rule supports.

This brings me onto my real beef with the way the cab rank rule is used. This returns us to the position with the exceptions. I am not going to deal with all of them. I am going to “hand-pick” [n.b. parenthetical emphasis probably indicative of some sinister bias on my part] three.

Firstly, let me turn to legal aid. Most criminal legal aid cases are conducted on graduated fees including the kinds mentioned in the Bar Standard’s press release on today’s report. Graduated fee cases can be turned down on the basis that the fee is not a proper fee (if indeed it is not a reasonable fee). This exception to the traditional way the Cab Rank Rule had operated for legal aid cases was permitted as part of the bar’s understandable concern that the then Government was cutting legal aid too much. Offending their properly cherished belief in access to justice, the Bar took the view that it should extend that erosion by weakening the Cab Rank Rule. The justification is that legal aid fees cannot be deemed as proper fees and so barristers could be free to turn them down in appropriate circumstances. What this really means in practice, I suspect (if it has any impact at all), is this: criminal defence practitioners with economically healthier practices can turn down work on the basis that it is not as remunerative as other work by arguing the fee is not a proper fee (or more likely finding some other excuse). This may mean (I speculate) that better barristers find it easier to turn down cases in good conscience. The idea that a legally aided defendant can have the barrister of their choice is formally weakened by both legal aid cuts and the weakening of the cab rank rule (I say ‘formally’ because I do not know whether this is really happening in practice). The more ethical approach, although it is easy for me to sit here and type this not having to eat what I kill in terms of fees, would be to say: if you take legal aid cases you are bound by the cab rank rule and cannot assert that fees in some cases are not proper fees. The Bar chose not to say that. The Cab Rank Rule does not look so cherished as a result.

The second example is Direct Access. My understanding is that the Cab Rank Rule does not apply to such cases. I do not understand why not. If a barrister decides to offer direct access and the case does not fall within one of the existing exceptions to the Cab Rank Rule then why not require them to take it on? If the Cab Rank rule maintains its relevance to the rule of law, why not here? Indeed, direct access cases may be those where the need for a cab rank rule is most acute. Let us follow the logic of a position excluding direct access clients. Those who want or need the benefit of the cab rank rule would always have to first get professional representation. This would be (usually) from a solicitor not operating under the cab rank rule before getting representation from an advocate operating under the Cab Rank Rule. That rather undermines the case that a Cab Rank rule is necessary in the first place. The moral virtue of the Cab Rank rule appears to be contingent on those who do not have the rule. Perhaps, and I emphasise I say this tongue in cheek, only barristers need principles.

My third example is the way in which the Cab Rank Rule appears to be being used as bargaining chip in arguments about standard terms of business. If I have understood it correctly, the current proposal is that those clients of solicitors who do not agree to standard terms set out by the Bar will be denied the benefits of the Cab Rank Rule. This is odd on a number of levels. Firstly, it seems to be a rather disproportionate response. If a solicitor proposes business on unreasonable terms it would be within the right of the Barrister to turn down the case on the basis that it was not a reasonable fee (or if I am wrong in that an exception could be drafted to cover it which is more proportionate than the blanket exclusion of the rule). Equally, one imagines (indeed has observed) some head scratching bemusement amongst solicitors as to why they or their clients should give two hoots. In this sense the Bar threatens to remove cab rank protection when it is only they who imagine it is a significant protection.

The point about each of these exceptions is that on occasions when the Bar is faced with something it does not like it holds up the Cab Rank Rule as a sign of its own virtue and diminishes it in a sort of ritual sacrifice. It is a kind of conversation with itself that narrows the Cab Rank Rule and erodes its symbolic power.  A power with an effect that is most keenly felt, if it is felt at all, within Bar’s own conscience. Maybe, if the Bar really believes in the Rule, it should seek to reverse that trend and rethink how they deal with exceptions. If they do not do so, they can expect some scepticism when they emphasise the Cab Rank Rule as a signal of significant virtue.

*The author acknowledges that only he and an assorted, somewhat strange, band of publishers and law librarians give tuppence halfpenny for this.

Increased litigation and regulation alongside a perception of increased risk appears to be driving an increase in lawyer participation at board level. In the US at least, lawyer-directors they are often outside directors. The study models empirical evidence to suggest companies with lawyer-directors may reduce the risk-appetite of CEOs by realigning the CEO’s remuneration incentives to increase pay but reduce risk appetite. Risk-taking behaviour by those Companies is also claimed to reduce. Interestingly, “lawyer-directors who are insiders (for example, lawyer-CEOs who are also directors) are more likely to reduce corporate risk than outside lawyer-directors”. The same is true where it is a lawyer director who chairs the risk management committee or who is the Chief Financial Officer.

Risk is measured through insolvency risk and ; volatility. Interestingly, where there were lawyer-directors litigation (e.g. patent litigation) seemed to reduce other risk measures, suggesting some litigation had benefit to the client beyond the outcome of the litigation itself. Indeed, patent litigation increased the value of the company. Even where such litigation posed risks to the company the risks posed by accounting malpractice, securities and class action litigation reduced where there were lawyer directors. The reduction in risk and increased financial stability was linked to reduce borrowing costs and higher leverage.

It is worth quoting the summary of key findings on litigation risk:

• Lawyer-directors increase the effect of patent litigation on firm value by 13.2 percent.
  
• Accounting malpractice litigation reduces firm value, but the result is reversed when there is a lawyer-director. In that case, there is a 308 percent increase in the effect of accounting malpractice litigation on firm value compared to when no lawyer is on the board.
  
• Securities law and class action litigation reduces firm value, but the result is also reversed when there is a lawyer-director. In that case, there is an almost 155 percent and 65 percent increase in the effect of such litigation on firm value compared to when no lawyer is on the board.
  

Our results tell us is that, on average, a lawyer-director increases firm value by 9.5 percent, an increase that rises to 10.2 percent when the lawyer-director is also a corporate officer. She does so primarily through her effect on CEO compensation and litigation, both of which cause a reduction in firm risk-taking to more efficient levels as indicated by the rise in Tobin’s Q. Her influence on board structure and takeover protections may also add to firm value. The influence of a lawyer-director is even greater if she has a prominent position on the board.

The authors suggest that it is not litigation generally that is the source of improvement but a more general improvement in governance that results from lawyers on boards.

“Those who promote a tax avoidance scheme are required to notify HMRC of the scheme to comply with its disclosure regime. This has allowed HMRC to act quickly to close some schemes down. However, HMRC does not know how much avoidance is not disclosed but should be and has only issued 11 penalties for non-disclosure of a scheme. A small number of promoters appear determined to avoid disclosure and refuse to engage with HMRC. It is alarming that some QCs’ opinions are being used by promoters as a “reasonable excuse” for non-disclosure which prevents HMRC from applying a penalty.”

The report appears rather light on why the process is alarming. One passage of evidence caught my eye, however, as a possible explanation. Rather than seek to describe the nature of the witnesses business, let me quote the opening passage of his evidence to the Committee:

Aiden James: Yes, sure. First, I would like to thank the Committee for allowing me to join in on the debate on tax avoidance. My business is essentially set up to provide an independent review of tax avoidance structures in the market. We particularly specialise in income tax avoidance.

Q2 Chair: So you market yourselves as a tax avoidance business. That is your business model. You are in the business of avoiding tax?

Aiden James: Yes.

It is the following passage which is of special interest:

Q69 Mr Bacon: I want to ask you about the legal advice. The provider—the creator—has already taken legal advice and got an opinion from a QC before you look at it, but you are saying that, in some of those cases, you look at it and say, “We don’t think that that will work” so you do not introduce it.

Aiden James: Yes. Some structures rely on legislation that includes an avoidance motive test.

Q70 Mr Bacon: In so doing, you are essentially doubting the worth of the opinion of the QC, who backed the scheme, aren’t you?

Aiden James: A QC can only look at what is given to him to make that conclusion.

Q71 Mr Bacon: Do you think that the providers sometimes do not provide the full information, get the rubber stamp from the QC and then go out and market the scheme that contains things that the QC didn’t know about?

Aiden James: There may be certain assumptions that the QC works upon.

Q72 Mr Bacon: That turn out not to be correct?

Aiden James: It then becomes a matter of do you accept those assumptions or don’t you.

Q73 Mr Bacon: Or were you given the full information. Do you think that QCs are sometimes not given the full information? If they were doing their job, they would ask for it, wouldn’t they?

Aiden James: If there is an avoidance purpose test in the legislation, you are expecting there to be a commercial aspect within that structure. Does it need to be 5% commercial? Does it need to be 100% commercial? The QC is not going to give an opinion on whether he views something as being commercial or not. We would much prefer to promote something that does not have that level of subjectivity. Either it technically works or it does not.

Q74 Mr Bacon: Do you seek, do you obtain, your own independent legal advice on the worth of a scheme that some provider has created and had tested and looked at by a QC? Do you then go to a lawyer and ask separately what your—

Aiden James: We have resources within the team to do that.

Q75 Mr Bacon: But you do not go out and get a silk’s opinion.

Aiden James: I am trying to think of a situation where we may have done. Usually—

Q76 Mr Bacon: So what do you have—an in-house lawyer?

Aiden James: Yes, various staff.

The question of whether opinions have been given when questions about the basis of such schemes should be asked is not answered. That unanswered question raises a suspicion that some of the opinions given are not of the requisite quality be that through omission of the lawyers, failings of the client, or both. Mr James’ may not be in a position to answer the question. It is something which may bear investigation. If a tax adviser gets advice which it relies upon as not requiring disclosure, that advice is unlikely to be scrutinised. Similarly, any failing on the part of a barrister to ask relevant questions (if such a thing occurs) is unlikely to be scrutinised either. Yet, the reputation of the Bar is prayed in aid of the legality of the schemes where advice may have been given on hand-picked versions of the facts.

The standard and proper response to complaints about tax avoidance given by lawyers is that tax avoidance is lawful but evasion is not. In fact, the lawfulness of a particular tax scheme is often a matter of legitimate debate. Reporting and scrutiny mechanisms exist to ensure that debate is had. If it is right that tax advisers depend on legal opinions to inhibit the disclosure or, and scrutiny of those schemes, then it is vital that those opinions are given are of impeccable quality and independence. Lawyers in such circumstances are not simply acting as advocates of their client interests but as guardians of the rule of law. Their latter obligations are paramount; particularly in these circumstances. We do not know whether the problems outlined at in this evidence are in fact made out. We do know that questions have been asked and appear to remain unanswered. The SRA have signalled an intent to look carefully at solicitor involvement in tax avoidance schemes. Perhaps the Bar Standards Board should do the same.

That question in broad terms is this: if expressing an opinion in relation to anticipated litigation is forbidden why is giving an opinion, which is then publicised in this way, not?

The relevant Bar code of Conduct rules state this:

709.1 A barrister must not in relation to any anticipated or current proceedings or mediation in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.

709.2 Paragraph 709.1 shall not prevent the expression of such an opinion on an issue in an educational or academic context.

This situation appears to fall between these two stools; though there is no doubt in my mind which of the two situations it is closer to. It might even be argued that litigation is anticipated in relation to any attempt to implement Leveson; though I don’t think I’d like to make that argument just yet. A general sense that litigation is inevitable is not the same as anticipating litigation on this point. The advice is framed as being in the matter of proposed legislation (one might say anticipated, though I’d bet litigation is more likely than this particular piece of legislation).

The Opinion reads almost without qualification (I quote the bit where they come closest to circumspection). I do not know whether the Government’s position is so outrageous as to merit this; but I did wonder if a more detailed opinion lay behind it. The central point seems to be this in relation to the introduction of exemplary damages:

Whilst Parliament is capable of departing from the accumulated wisdom of twelve Law Lords, it should be cautious about doing so. Further, even if Parliament did reject the wisdom of the common law, the Strasbourg court would in our view consider that the touchstone of “outrageous” conduct lacked the legal certainty required before a measure which interferes with freedom of expression under Article 10(1) of the Convention can be said to be “prescribed by law” and capable of justification under Article 10(2).

I’m not tempted to engage in detailed debate on the point but it is worth saying, because it is rather topical, that outrageous, dishonest, reckless, beyond reasonable doubt – the law is littered with phrases of uncertainty in which we necessarily put our faith (see yesterday’s post). And in broad terms, I have some sympathy with many of the arguments made in the opinion, but they are made with a force which strikes me as advocacy rather opinion (e.g. saying the discrimination in application of exemplary damages was impossible to justify seemed to me to be overreaching a little – but I may be wrong).

In any event my concern is really with whether barristerial opinion should be used in this way at all and what that means for the Bar’s other media comment rules. I do not know whether the Silks involved knew this was about to happen, though I can guess. I do not know whether they would feel that, having opined in such terms and for such purposes, they should not be instructed on any litigation because they will then have more plainly sailed close to the existing rules. It’s a minor point perhaps also, but their opinion does not disclose who instructed them (most people know already I suppose).

This problem, if indeed it is a problem, is not confined to such openness. It has been described to me as ‘Lawfare’ (HT Stewart Murray) . There is the potential for lawyerly tools to be applied outside the contexts for which they are appropriate. On one level the document is just an opinion; but it has been released with into a broader scheme of meaning. In reality, however eminent, we should not pay too much heed to the people or to their headline opinion but to their reasoning and the counter-reasoning as and when it comes. Lawyers should also be mindful of the consequences of how their opinions are interpreted and used, but that is an issue for another day. There are other interesting examples. I have been told by one barrister that the former editor of a leading practitioner text (close to a lawyer’s Bible actually) told him Silks sent him (the Editor) unsolicited papers hoping they’d be included as editorial before upcoming cases. It is one thing to opine on the law. It is another to try and stack the deck so that the law appears only to lean your way.

I think that is drawing the wrong line. A much more interesting set of questions is raised about how judges direct juries and what we know about how juries take decisions. These points lead me to agree very strongly with Lord Woolf when he says that there is a good deal of sense in more research being conducted into juries to help judges better advise jurors.

I was prompted to write the blog by some comments on twitter including those from two QCs, but let me first set out some of the background. The judge’s comments follow on the jury asking several questions at the end of several days deliberation (HT Andrew Keogh).

Q1. You have defined the defence of marital coercion on page 5 of the jury bundle and also explained what does not fall within the definition by way of examples. Please expand on the definition, provide examples of what may fall within the defence, specifically ‘will was overborne’ and does the defence require violence or physical threat?

Answer: “The pressure applied by the husband need not involve violence or physical threats. The law requires that a husband was present and coercion was to such an extent that she was impelled to commit an offence because she truly believed she had no real choice but to do so.”

Q2. In the scenario that the defendant may be guilty but there may not be enough evidence provided by the prosecution at the material time when she signed the notice of intent to prosecute to feel sure beyond reasonable doubt, what should the verdict be, not guilty or unable or not safe to bring a verdict?

Answer: “Turning to page three of my written directions, the direction is combining the burden and standard of proof with the need for a majority verdict. If, having carefully considered all of the evidence, at least 10 of you feel sure of the guilt of the defendant then it would be your duty to return a verdict of guilty. On the other hand, if after careful consideration at least 10 of you were feeling less than sure of guilt, then it would be your duty to return a verdict of not guilty. And so it follows that if at least 10 of you are not sure, the appropriate verdict is one of not guilty.”

Q3. If there is debatable evidence supporting the prosecution case can inferences be drawn to arrive at a verdict? If so can inferences/speculation be drawn on the full evidence or only where you have directed us to do so?

Answer: “The drawing of an inference is a permissible process. Speculation is not. In this case the evidence on which the prosecution relies is largely undisputed, and where you are willing to draw inferences from that is entirely a matter for you.”

Q4. Can you define what is reasonable doubt?

Answer: “The prosecution must make you feel sure beyond reasonable doubt. A reasonable doubt is a doubt that is reasonable. These are ordinary English words that the law does not allow me to help you with, beyond the written directions [he had already given them]“.

Q5. Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?

Answer: “The answer to that question is a firm no. That is because it would be completely contrary to the directions I have given you.”

Q6. Can we infer anything from the fact that the defence didn’t bring witnesses from the time of the offence, such as the au pair or neighbours?

Answer: “You must not, as I have now emphasised many times, speculate on what witnesses who have not been called might have said or draw inferences from their absence. Her evidence is that no one else, other than Mr Huhne, was present when she signed the form.”

Q7. Does the defendant have an obligation to present a defence?

Answer: “There is no burden on the defendant to prove her innocence and there is no burden on her to prove anything at all. The defendant does not have an obligation to present a defence, in this case the defendant has given evidence and it is for you to judge the evidence from her in the same way you would any other witness.”

Q8. Can we speculate about the events at the time Miss Pryce sent the form or what was in her mind when she sent the form?

Answer: “The answer to that is an equally firm no. The position in a criminal is that no one must speculate. There is a difference between speculation, which is not permitted, and inference, which is the drawing of common-sense conclusions from the facts of which you are also sure. Speculation is guesswork. That is not the same as inference at all.”

Q9. The jury is considering the facts provided but is continuing to ask the questions raised by the police. Given that the case has come to court without answers to these questions please advise on which facts in the bundle the jury should count on to determine a not guilty or guilty verdict.

Answer: “You must decide the case on the evidence [put before the court]. It is for you to decide which you consider to be important, truthful and reliable then decide what common-sense conclusions you can safely draw. It is not for me to tell you which piece or pieces of evidence are important and which are not. That is a matter for you to decide.”

Q10. ”Would religious conviction be a good enough reason for a wife feeling she had no choice i.e. she promised to obey her husband in her wedding vows, he ordered her to do something and she felt she had to obey?

Answer: “This is not, with respect, a question about this case at all. Vicky Pryce does not say that any such reason formed any part of her decision to do what she did. Answering this question will not help you in any way whatsoever to reach a true verdict in this case. I must direct you firmly to focus on the real issues in this case.”

Mr Justice Sweeney went on: “I want to repeat the absolutely vital importance of your following my directions of law to the letter and the fact that it is an equally important part of each of your individual duties to ensure that all of you do follow my directions of law to the letter.

“Without doing so, you are simply not in a position to reach a true verdict according to the evidence one way or the other.

“It is essential that each of you ensure that my directions of law are faithfully applied by all of you. If, for whatever reason, any one or more of you feel you do not understand my directions, then it would be wholly wrong to reach a verdict one way or the other.

“Equally, the duty of all of you is to ensure that no one of your number does reach a conclusion one way or another unless they are confident they are able to understand and follow to the letter my directions. It does come in some cases that jurors are simply not able to agree in sufficient numbers on the verdict.

“If, after further consideration, you find yourselves in a position where you are simply not able to agree, then you must of course have the courage to say so. I hope all that is clear.”

It is worth noting in passing the language used. Readability and intelligibility depend on short words in short sentences. But I do not want to dwell on that. Nor do I want to strain too hard against the judge’s criticism of the jury; though voicing it publicly in such a controversial trial may not be a step which makes juries better in the future. Some of the questions look odd but there may be reasonable explanations which do not suggest a jury having lost a fundamental grip. One possibility is that the more eyebrow raising questions reflected points being made within the jury room by one, or a small number of, members of the jury that the rest were seeking to deal with. I think it is worth saying though that some of the questions, which have nonetheless been ridiculed, are perfectly reasonable ones. These questions and the way the judge answers them may raise more modest, but important, questions.

Take for example the question about “beyond reasonable doubt”. The judge answer is, understandably perhaps, tautologous and he declines to help further. One suggestion might be that the judge may have been wrong to say he was prohibited from providing a further explanation. Archbold 4-447 (f) suggests that where asked a judge should offer an explanation: “a reasonable doubt is the sort of doubt that might affect the mind of the of a person in dealing with matters of importance in his own affairs” Walters v R. Though if the judge were wrong, frankly, I struggle to see how this further definition would help.

Another interesting question is whether the judge should have introduced the “beyond reasonable doubt” test. The weight of opinion that I have canvassed is that the normal direction to give is that the jury must be sure that that the defendant is guilty. The Crown Court Benchbook gives a specimen direction based on this test, and says that being sure is the same as entertaining no reasonable doubt. It also counsels against providing further guidance on the “sure” test.

In this case the Judge directed using both versions:

The Prosecution has chosen to bring this case, and it is for them to prove it, on all the evidence before you, if they can. There is no burden on the Defendant to prove her innocence. On the contrary, there is no burden on the Defendant to prove anything at all.

The standard of proof that the Prosecution must achieve before you could convict is simply this – the prosecution must make you feel sure of guilt (that is the same as, but no more than, the proof of guilt beyond reasonable doubt).

I’d tend to the view that there is nothing wrong with saying this, unless you think that the jury might be confused by being offered two tests rather than one. Importantly, though, they might well be confused by twin tests of such abstraction. We simply do not know whether that helps or hinders them. The more important issue in some ways is whether the jury can understand either test. That they could not has been seen as evidence of their inadequacy. I am not at all sure that it is. Let me turn to the twitter conversation from last night. James Turner QC (an intelligent – which you’d expect of course – and engaging presence on twitter @JamesTurner37) said this that caught my eye:

Well, I’ve never understood what “reasonable doubt” means – reasonable to whom, for example; deep philosophical stuff… [and]

…And the concepts of ‘dishonesty’ and ‘recklessness’ are even worse – they mean what you want.

On the sure test he said this:

How do I know if sure? What does that mean? Have I got to exclude all doubts to be sure, or only ‘unreasonable’ ones?

And continues with…

And that’s only the first direction as to law – then add the evidence to the mix – not so simples

Sean Jones QC (another great presence on twitter, @seanjones11kbw) made several comments pointing out similar linguistic uncertainties in other fields of law and then made this important point:

[I] suspect complete precision of meaning is both impossible and undesirable

I have a lot of sympathy with both positions. And my answer is that we should do more research on these questions. My colleague, Cheryl Thomas, has conducted a study for the Ministry of Justice which found this (amongst other things):

Most jurors at Blackfriars (69%) and Winchester (68%) felt they were able to understand the directions, while most jurors at Nottingham (51%) felt the directions were difficult to understand.

Jurors’ actual comprehension of the judge’s legal directions was also examined. While over half of the jurors perceived the judge’s directions as easy to understand, only a minority (31%) actually understood the directions fully in the legal terms used by the judge. Younger jurors were better able than older jurors to comprehend the legal instructions, with comprehension of directions on the law declining as the age of the juror increased.

More fundamentally, I understand there has been no research in this country on how juries (real or experimental) approach the issue of burden of proof. It is interesting to note that the shift from the ‘reasonable doubt’ to the ‘are you sure?’ test was done without such research. It is worth exploring whether, when we apply a linguistic test to a matter of uncertainty, we all understand the test and apply it in a similar way.

That kind of research can be done. One study which particularly caught my eye was Sorting Guilty Minds. That study tested US law through an experimental survey based design. It looked at how notions related to intent (“purposeful, knowing, reckless, or negligent”) were assessed by a random sample of respondents. The law’s assumption that people naturally sort mental states into these four categories with a high degree of accuracy was partially justified. Respondents, ” were able to regularly and accurately distinguish among purposeful, negligent, and blameless conduct.” The respondents struggled however with the difference between knowing and reckless conduct. This kind of research is worth doing so that the system can be sure that when it communicates responsibilities to juries and innocence or guilt to defendants and society it does so in a way that is reliable.

These questions are raised before we get into the more tricky territory of the marital coercion defence, on which the Judge directed:

A wife’s will would not have been overborne (in the sense that I have just described) if, for example, she was persuaded by force of argument to choose (albeit reluctantly) to commit the offence rather than to take another course, or if she was persuaded (albeit reluctantly) to commit the offence out of love for, or loyalty to, her husband or family, or to avoid inconvenience (whether to herself or others). Her will must have been overborne in the sense that she was impelled to commit the offence because she truly believed that she had no real choice but to do so.

It is not, however, for the defendant to prove that Mr Huhne coerced her – rather it is for the prosecution to prove that he did not do so. The Prosecution may do that (as they seek to in this case) either by making you feel sure that Mr Huhne was not present when Ms Pryce committed the offence, or by making you feel sure that her will was not overborne (i.e. that she was not impelled to commit the offence because she truly believed that she had no real choice but to do so).

Again, I want to raise some questions about the nature of the text here. Long, complex sentences with unnecessary parenthesis and obscure language bedevil lawyers (overborne?). We really should dwell at some point on how lawyers and judges communicate; particularly, as here, where the legitimacy of an institution and the liberty of an individual is at stake. Of course it is not always easy and, I say with the strongest emphasis, the job of judging is one of the most challenging and important jobs in our society. But it is not, I hope an unfair point to make that the communication of the constituents of the offence could be clearer. And it is not at all surprising that the jury struggled and asked for examples. These questions are one of the few ways in which juries can speak. As James Turner QC put it last night:

It’s all very well for judges and press to criticise a jury, but isn’t it unfair that jury not then permitted to explain?

It’s a rule of basic fairness that witnesses, whoever they are, should have that opportunity. If the jury or judge hasn’t assessed how the witness responds to the opposing case being put, it becomes much harder to decide whether the allegation is true and the evidence for it reliable.

In a case of historic sex abuse, for example, where no significant evidence except the word of the defendant and the complainant survives after many years of silence, the defence is likely to be a simple denial, accompanied with the allegation that the complainant has invented the allegation for reasons of their own. The defendant’s case in 2013 may be that he accepts he was in a relationship with the complainant’s mother in 1983, but that he never touched the complainant, and she must be making it up. There’s nothing else to go, so the way in which the witness deals with the defence case, as put to her, is an important part of the evidence for the court to consider. As I suggested in an earlier post, the maxim ‘show don’t tell’ is a good one to follow in cross-examination, but if the defence is that the allegation is a fabrication, the witness must have the opportunity to deal with it squarely. A sincere and outraged denial can speak volumes about the witness’s credibility.

Now there is a lot of sense in this passage but there is, to my mind, a weakness too. I have written a comment for Frances’ blog along these lines:

The issue has to be how [an allegation of fabrication] is put. And what is really learned once it is put. It would be interesting to know whether the model of polite but robust approach with judge intervening (“probably”) that you advocate is the approach taken as often as it should be. You say, “A sincere and outraged denial can speak volumes about the witness’s credibility.” Well, maybe it can – but does it? I am not as convinced as you are that oratorically convincing denials are – in and of themselves – evidence of the veracity of a witness. I thought instantly of Jonathan Aitken’s ‘sword of truth’ when he announced his intention to sue the Guardian. My recollection is he was undone by a hotel receipt not the strength or otherwise of witness conviction. Again, that is not to say that a witness should be denied the chance to rebut an accusation made against them, – of course they should; but it seems to me a great deal of emphasis is placed on folkish concepts of how we “know” when someone is telling the truth or lying.

To give you an example, I was struck by this passage from the British Psychology Society report I linked to in my blog (http:\\lawyerwatch.wordpress.com):

“The vividness of mental imagery is poorly related to memory accuracy (3.vii.23). Some studies have reported a negative vividness–accuracy relationship, with vivid imagers more likely to confuse false with genuine recollection because they are more able to imagine the misleading information as if it had actually occurred (3.vii. 11, 29 & 30). Imagining something happening can lead to distortions in memory, with an individual confusing an imagined event for something that actually happened (3.vii.13 & 14).”

I suspect sincerity and outrage may be analogous to vividness. I suspect advocates too rely on vividness in painting a picture of witnesses. To suggest a witness is a fantasist is more vivid than to simply suggest they are mistaken; or they are lying. I do not criticise the QC in the Andrade case for that because I have not seen the transcript and, in any event, the clients instructions and rest of the case may (or may not) have given the fantasist suggestion some substance. But if, as the Times report suggested, the judge did indicate misgivings during the trial, it seems to me the case is one in which questions should be asked without anyone jumping to conclusions about the answers. I understand that a solicitor present for most of the cross-examination says this did not happen (on what she saw). Of course, the judge issued a robust defence of the barrister once the death of Ms Andrade was announced. That is consistent with the barrister having done nothing wrong in his eyes, but also with the judge seeing that any concerns he might have had about the cross-examination being (understandably) outweighed by the opprobrium that would be heaped upon the barrister if criticisms were allowed to stand uncorrected. On the evidence that has emerged so far, I prefer the judges view given at the end of the trial; but I do not know.

Dignity: Lawyers shall act with dignity, restraint and reserve (lawyers are forbidden to canvass clients or to lie);
Consciousness: Lawyers shall act with moral and professional rigour;
Independence: Lawyers must be independent (material, moral and intellectual independence) from anybody and especially from the clients;
Integrity: Lawyers must comply with all obligations imposed by the Courts and moral standards;
Humanity: Lawyers shall be compassionate and caring towards clients and must show humanity towards the opposing party;
Honour: Lawyers must act to preserve the esteem of others, in accordance with the moral standards;
Fairness: Lawyers must be fair to the opposing party (respect the principle of adversarial proceedings), to the clients and to other lawyers (lawyers are forbidden to divert clients of other lawyers);
Unselfishness: The fees to be paid to lawyers must be reasonable. Moreover the exercise of the profession of lawyer is incompatible with any commercial business;
Collegiality: Lawyers must maintain good relations with colleagues, must show solidarity with other lawyers and must respect the common values ​​of the profession;
Delicacy: Lawyers shall avoid conflicts of interest (eg, plead against a former client or divert clients from a colleague);
Moderation: Lawyers must exercise restraint and correction in their attitude and in their remarks during hearings. Lawyers shall not make any offensive or defamatory statements;
Courtesy: Lawyers must reconcile defense of the clients with respect for the judges and for the opposing party. Lawyers must appear in Court dress before judges;
Competence: Lawyers should advise clients in their best interests,
Devotion: Lawyers must be serious, caring and available to the clients. Lawyers must personally fulfil the mission entrusted by the clients;
Diligence: Lawyers shall provide care and attention to the defense of the clients. Lawyers must do all that is necessary or useful to the success of the mission entrusted by the clients. Lawyers must be present at the client’s side. Lawyers must respect the professional secrecy;
Caution: Lawyers must pay attention to the consequences of their actions and shall refuse a mission for which they have no competence. Lawyers must refuse to lend support to clients to the commission of an offense and shall attempt to dissuade clients from committing an offense.

The French of course have an inquisitorial system (although my understanding is that the difference between inquisitorial and adversarial in practice is less stark than the two terms may suggest). I’d be interested in thoughts about how this actually is applied in France.

On what has emerged so far it is difficult to see that Defence Counsel did anything wrong.  The cross-examination as reported in the Guardian simply suggests the defence being put to the witness, as it had to be.

When Kate Blackwell QC, Brewer’s barrister, alleged her account of being raped by the Brewers at their house was “utter fantasy”, Andrade loudly replied: “Bollocks”.

“You have told this jury a complete pack of lies about the visit to this house,” said Blackwell.

Andrade replied: “This is why cases don’t come to court. This happened.”

“You spent the night lying next to two of your rapists?” asked the barrister, referring to Andrade’s account of sleeping three in a bed with the Brewers after she said they had raped her.

Andrade answered: “But this happened. I felt guilty, I did not know how to get out of it.

“This is a lie,” said Blackwell. “You could have left the house at any time.”

Andrade replied: “You have got no idea clearly about what it is like to be raped. You have clearly no feminine understanding of what someone goes through like that. What shock your body goes through. How you almost feel you deserve it.”

Judge Martin Rudland said on Thursday that Blackwell had been “perfectly proper and correct in her examination of all the witnesses in this case”.

Barristers know very well their duty to “promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person”.  The absence of regard point, whether one supports it or not, is an important part of the obligation.  Of course, “A barrister [also] has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.” The extent to which this restrains an individual barrister, defending a client with a defence that has to be (or the defendant wants) putting is very limited.

But accepting (on the details that have emerged so far) that what happened here accorded with the rules and culture of the justice system does not stop us asking broader questions.  The model of adversarial zeal is justified on the basis it is the best known approach to protecting the rights (of the accused) and to finding out the truth.  All sides of a dispute are aired without restraint and adjudicated upon is the basic idea.  The strength of this truth claim is untested, in some senses untestable.  We sense that sometimes it works and sometimes it does not but we rarely know.  What we do know is that victims feel harmed by the process of cross-examination.  That the approach of barristers appears, to them at least, to be a game, an attempt to humiliate and confuse rather than to test their evidence.  But of course that is one side of the story only.  Whilst our sympathies quite naturally lie in general terms with these witnesses, they do not always have a monopoly on truth. Prisoners who protest innocence and commit suicide in prison rarely have the luxury of being labelled innocent.

The concerns of victims, however, do I think mean we should look conscientiously at the probative value of cross-examination techniques.  I was intrigued to read a study published by British Psychological  Society, “Guidelines on Memory and the Law Recommendations from the Scientific Study of Human Memory”.  It aims to provide, “a far more  rigorously  informed understanding of human memory  than  that available from commonly  held  beliefs. In this respect  they give courts  a much  firmer  basis for accurate decision-making.”

Consider these examples from the executive summary, and how an advocate might cross-examine against them:

 “Memories are records of people’s experiences  of events and are not a record of the events themselves. In this respect,  they are unlike  other recording media  such as videos or audio  recordings, to which they should  not be compared.

“…memory  is prone to error and  is easily influenced by the recall environment, including police  interviews and  cross-examination in court.

“Memories  are time- compressed fragmentary records  of experience. Any account of a memory  will feature forgotten details and  gaps, and  this must not be taken  as any sort of indicator of accuracy. Accounts of memories that do not feature forgetting and gaps are highly unusual.

“Memories typically contain only a few highly specific details. Detailed  recollection of the specific time and  date  of experiences is normally  poor,  as is highly specific information such as the precise  recall of spoken  conversations. As a general rule, a high  degree of very specific detail  in a long-term memory  is unusual.

“Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish  the truth of a memory  is with independent corroborating evidence.

[And so on, the report is well worth a read]

So this report suggests that, in terms of questioning witness credibility, one should be wary of comparing a witnesses recollection with other records; what they say in the police station compared with what is said in court; or labouring gaps in accounts.  One should be wary of being persuaded by highly specific and detailed recall.

Some, if not all, of these lines of questioning are mainstays of defence cross-examination.  And if memory is so uncertain, advocates are entitled to ask, “Are you seriously suggesting I cannot put these questions?”  To which the answer (I imagine) is, “No, but are you seriously suggesting we should trust the answers that such questions produce?”  That this leaves us in something of a Catch 22 is obvious but it also creates a little space within which we can develop some awareness of weaknesses in the assumptions upon which witness credibility evidence is founded.  Perhaps that will encourage us to be a little less dismissive that harms caused by the justice system are simply an awful but necessary price to be paid.  And perhaps we can find ways of looking constructively at how best to cross-examine, which does not assume either side has a monopoly on truth.

___

[A comment made to me is that calling some of these people "victims" prejudges the matter.  It's a fair  point.  I had in mind, though, those that have given evidence and the defendant had been convicted, i.e.not those that have lost their case]

Where two or more Principles come into conflict, the Principle which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice. (SRA Code of Conduct, Guidance 2.2)

The significance of this can be emphasised by highlighting a section of the judgment:

This case demonstrates the need for solicitors preparing witness statements to curb their enthusiasm in seeking to obtain the best for their clients. It must not be forgotten that witness statements are merely a replacement for evidence which a witness previously used to give live in chief. It is intended to be the factual evidence of the witness in his own words. Too often witness statements are drafted by solicitors who put words in their mouth to achieve a better result. Witness statements can then be changed from drafts to a later stage without the witness understanding the significance of the change. An extreme example of this kind of activity was highlighted by me in a statement I made in the Farepak case. In this case too it is clear that statements were “finessed” to present them in a more favourable light from AETN’s point of view without the witnesses understanding what was happening. This is unfair to witnesses. They should not be required to justify witness statements when the true effect of them is not understood by them.

Further when preparing hearsay statements it is even more incumbent on the solicitors not to manufacture things to put that evidence in the best light for their clients. The Court will not have any opportunity to explore that evidence with live witnesses and the duty on the solicitors is therefore even more clear to confine witness statements to what the witness would have said in his own words had he or she been giving evidence.

Equally I do not think it is appropriate for a witness to have his statement taken from him when he does not realise that it is being taken from him for the purpose of giving evidence. That too is unfair. Further when such a person objects to giving evidence it cannot be appropriate in my view for that statement which has been taken down to be served up as a hearsay statement without reference to that potential witness (the more so when he has said he does not want to give evidence). Without the investigations in cross examination in this case none of the actual defectiveness of the hearsay statements would have come to light.

The references to witnesses being unfairly treated is an interesting one.  Witnessed appear to have been rung up, interviewed, notes taken and then asked if they would give evidence.  Those who declined nevertheless appear to have had their ‘statements’ included as hearsay evidence.  The judge says, “I suppose there is nothing technically wrong with this.”  I am less sure.  Putting aside the point that reputable researchers seek informed consent from anyone they interview in research projects, the solicitors’ profession is obliged not to take unfair advantage of third parties under its Code of Conduct.  There is a good case that this is what happened here.

The  parenthesises “finesse”: but what is he saying?  One can understand the desire of a Judge not to spell matters out without further investigation but there are important questions raised.  Was there an attempt to knowingly or recklessly mislead the court?  Whether or not there was, is the administration of justice served by the practices identified here?  Is it sufficient that a judge scolds a firm in this way, or should firmer regulatory action take place?  Any professional who, like MPs with expenses, opines in their own defence that everyone is at it is on dangerous ground.  If the practice is widespread one can understand that firms exposed might feel unfairly singled out, but if a widespread practice is a malign one it needs tackling.  Judges, if they have serious concerns, need to refer these firms to the SRA.  The SRA needs to pick up these cases and investigate them.

In a recent report HERE the LSB conclude the following on the Cab Rank Rule, “We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalized legal services market. By all means the Bar can espouse it as a laudable principle, but it should not pretend that the rule is significant or efficacious.”

And then he says this:

How dare they? This is a further demonstration that the LSB is a politically motivated body whose mission is the wholesale destruction of the publically funded criminal Bar.

Oh dear. It is worth pointing out that, er, the LSB have not said anything of the sort. Follow that rather significant factual inaccuracy with the incantation of a conspiracy theory and one imagines oneself luxuriating in the comments section of the Law Society Gazette. Perhaps the Chairman’s account was hacked by the ghost of Law Society Councils past.

The LSB have not said they support the reports conclusions, they’ve asked for thoughts on them, and otherwise kept their powder dry (though I can’t help but sense there may be a provocation in mentioning Adam Smith in the press release). The report itself is not the LSB’s view but that of Flood and Hviid. Questions there are aplenty for the Cab Rank Rule and it is particularly worth reading the section based on interviews. Clerks utterly perplexed by the irrelevance of the cab rank rule make interesting points.

The cab rank rule is close to being overwhelmed by exceptions. It is much honoured in the breach. And the report comes at a time when the Bar is seeking to make the cab rank rule contingent on their standard terms. I suspect whether solicitors accept those terms will have nothing whatsoever to do with the cab rank rule, providing further evidence of the rules economic irrelevance. Either the tactic demonstrates the rule’s irrelevance, allows solicitors to contract out of the Cab Rank Rule or is to be used as an anti-competitive bargaining chip. None of those three options reflects well on those behind the standard terms policy.

A neuralgic, afactual and inaccurate response to this report is spoiling for a fight that only one side wants. There is a case to be made for a rule which, for all the silly posturing that goes with it, has a plausible claim to much resonance within the Bar (see here for Lucy Reed’s excellent defence). It may even be the case that the rule is strengthened by the modifications floated in the report and the LSB press release. That suggestion is for a non discrimination principle, “You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability” plus the following additional protections that “you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence”. The case made is to modernise the rule and extend it to all lawyers not to parade its virtue whilst weakening its impact. If the Cab Rank really does rule, then the brawling nonsense needs to stop.

I would be very grateful if those interested could complete the survey by clicking on this link.  It is completely anonymous but there is an an opportunity to leave an email address for those interested in the results (I have nearly finished analysing the first survey).

There are a number of questionable assumptions behind the judgment.  One is the majority claim that everyone believes that Legal Professional Privilege applies only to lawyers when, ahem, two of the Supreme Court Justices do not appear to hold that belief.

A second is that legal advice privilege is clearly understood.  I rather beg to differ and urge readers to watch the exchanges between Lord Justice Leveson, Robert Jay QC and Alistair Brett at the Leveson inquiry.  I set out a relevant extract from the hearing below.  One could make any number of points about the uncertainties surrounding legal professional privilege, but I will spare the reader as I am about to do the school run.

There is however a more fundamental point which is what this case tells us about the fundamental justification for legal professional privilege.  Lord Sumption’s elegant and powerful analysis of the history and rationale for legal advice privilege quotes Lord Scott:

the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their (the clients’) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else.

Interestingly, however, we know from the case that the majority of tax advice is provided by accountants by some distance.  After this case they remain in the position of not having legal advice privilege, and yet clients feel able to instruct them without the security that legal advice privilege is said to provide.  They do not appear to need it.  It is worth bearing that in mind as legal professional privilege is not an unalloyed good.  We have seen how News International have selectively waived it in an attempt to dance around their own wrongdoing.  Legal advice and litigation privilege was been invoked in a partially successful attempt to shield these ‘document management’ policies of big tobacco from scrutiny.  The judgment on this tobacco case shows how uneasily legal advice privilege can sit with the rule of law.

That is not to say that legal advice privilege should be abandoned (something not in real prospect).  However,  a right crystallising from a right for lawyers into a right for clients at a time in history when Lord Sumption tells us  lawyers were seen as, “the growling jackals and predatory pilot fish of the law” probably does need a harder and more rounded look than can be afforded by the Supreme Court.  This is particularly so where this scrutiny occurs in a spat about competition where the accountants already seem to be beating lawyers hands down in terms of market share.

The Leveson passage follows….

Q. So we understand the context. Patrick Foster saw you on about 20 May 2009 about a story he was working on. He came into your office with Mr Martin Barrow, who was the home news editor, his immediate line manager. Mr Barrow indicated that Mr Foster had a problem about a story he was working on. Mr Barrow then left and there was a conversation off the record. What does “off the record” mean in this sort of context, Mr Brett?

A. A duty of confidentiality. The journalist would say, “Can I talk to you in confidence, Alastair?”

Q. What would be, though, the limits of that duty? Presumably duties owed to the court would be higher duties, would they not?

A. Yes, that would be right.

LORD JUSTICE LEVESON: Neither is quite the same as a privileged situation, is it?

A. A privileged situation would obviously be where you’re giving advice of some kind or other but that presupposes –

LORD JUSTICE LEVESON: He’s just about to ask you for some.

A. Yes, he is.

LORD JUSTICE LEVESON: So would you consider that privileged?

A. I probably would regard it as privileged, yes. Privileged and confidential.

MR JAY: So it attracts, in your view, legal advice privilege, have I correctly understood it?

A. Yes.

LORD JUSTICE LEVESON: But he’s not your client.

A. No, my employer is my client. This is the dilemma you’re faced with. You have a journalist coming to you and saying, “Can I talk to you Alastair, I need some advice, can I talk to you confidentially?” and I would say, “Yes, of course you can”. That leads you into the difficult dilemma that you obviously have personal relationships with the journalists on the newsroom floor, but you equally have a duty to your employer, the company, the newspaper. And the two don’t necessarily go in the same direction.

LORD JUSTICE LEVESON: I understand that, but why would there be legal advice privilege? If somebody comes to me for advice now, not when I was in practice, besides telling them it’s not worth a great deal, I don’t suppose that the discussion would engage privilege at all, would it?

A. In your current situation, no. But even before.

LORD JUSTICE LEVESON: Or even before, yes.

A. If I’m approached by somebody for legal advice, and I was, I think I would regard that as covered by legal professional privilege.

LORD JUSTICE LEVESON: I’ll have to think about that.

A. It raises all sorts of interesting questions about in-house lawyers.

LORD JUSTICE LEVESON: Indeed.

MR JAY: But maybe you’re using the term “off the record”, if I may say so, without legal precision. Clearly you would be advising your employer, that entity would be your client, and legal advice or legal professional privilege would attach, but if you’re advising an employee of your employer, and that employee may be in breach of duty to his employer, then there’s — I won’t say a difficult situation –

A. That’s precisely the word I was going to use: a difficult situation.

Q. Maybe the correct analysis is that there isn’t legal advice privilege in relation to those relations. What happens if the employer asks you to give them the gist of the conversation you’ve just had with Mr Foster?

A. That’s precisely when I have a ghastly, horrible, difficult situation in front of me.

Q. Let’s see whether it has any bearing on subsequent events.

A. Okay.

• Out of an estimated 3 million annual users of legal services, 460,000 were likely to be dissatisfied.  They suggest low levels then going on to complain (13%) (although it should be noted by way of context that LeO received about 75,000 enquiries last year).  The most common reasons for being put off are not thinking it will be worth the time it would take and lack of understanding or clarity about who to complain to.  The standard criticisms made about the way firms inform (or not) clients about complaints procedures are part of the evidence base.
• Interestingly there is also a chart suggesting ability to complain to an independent body may make some consumers more likely to use legal services (p.167).  Though it focuses on quite a narrow group of consumers, it is still an interesting point.
• Some good news is that Leo and Approved regulator costs for complaints amount to 0.1% of industry turnover (client and firm costs of complaints are not of course factored in). and  that the Legal Ombudsman is estimated to have reduced costs of complaints handling by £18million.  This might be due to handling rather fewer complaints than existed pre-LeO but there is also some evidence of (modest) increases in general satisfaction with complaint handling in the public surveys.
• Of those that are dissatisfied with their lawyers who do complain, 56% were generally positive about the process.
• There are some nice diagrams of the complexities of the complaints/regulatory system and the more critical comments of the report are reserved for critiquing this complexity.  The divided treatment of conduct and service complaints is one area which particularly excites OFTs concern; As is, from the consumer perspective, the rather arbitrary definition of when complaints fall within or without LeOs jurisdiction .  Unsurprisingly, the Legal Services Board has backed this as a call for a simpler complaints regime.  The divide between conduct and service complaints has historically been a problematic one and not something  well understood by consumers or, it might be argued, some working within regulators.

The other areas of concern which appear to be significant to the OFT are the slow application process for ABSs (a rather prosaic issue for the OFT, I’d have thought) and the bottleneck in pupillage applications.  They suggest ABSs may alleviate this by, for instance, funding BPTC and/or pupillages.  I am struggling to see this coming to pass; no doubt paucity of imagination on my part – the Inns and (possibly) the Bar Standards Board, might be reluctant to cede any control.  Also the report suggests allowing barristers to supervise two pupils not one.   This might work in ABS type organisations, were it permitted, but in chambers the shortage of tenancies might well mean there is little to be gained?

I’ve read Richard Susskind’s new book too.  I’m speaking at a launch event next week so I won’t rehearse my full thoughts here.  I do agree this is one of the stand out predictions but I think Ed is wrong to underestimate the potential for change.  Accountancy firms would be unwise to set up law firms or law and accounting firms and seek to compete with large firms head on, but that (to my mind) is not how innovation is likely to work.

What is more likely to happen is Accountancy firms will work their law related niches and build on those.  Approaches that they develop in their niche fields may then persuade them and their clients that there is merit in expanding.  Who knows where this will lead?

Accountancy firms are ahead of the curve on things like risk analysis and big data for instance.  This week the FT covered Ernst and Young’s compliance analytics, which can trawl emails for signs of compliance and ethics problems.   Law firms don’t yet grasp what this has really got to do with them, or when they do, how they can turn those issues into serious business opportunities.  The level of investment and the range of skills involved in such projects may also be beyond what is normal for most if not all law firms.  Yet I suspect it is not a million miles away from the kind of thing e-discovery systems do.

The way in which costs analytics is leveraging the role of inhouse counsel is one signal of change which is likely to lead to a quite different approach to lawyering and will spread beyond its current sphere of influence.  Currently it leads to the questioning of costs.  The approach may well morph (is already morphing) into a questioning of value.  It should be a warning for lawyers as to how innovation starts at the periphery and, where successful, moves towards the centre stage.

For Katz, this process is being driven by increasing computing power and data availability (through reduction in the costs of storage and computing power).  Outsiders with access to data, such as TyMetrix (“Division of the legal informatics conglomerate Wolters Kluwer”) advise, “corporate counsels and other sophisticated clients” on how to get the best value out of lawyers they instruct through the real rate report.

For educationalists and law firms perhaps the most important prediction is that,

“Informatics, computing and technology are going to change both what it means to practice law and to “think like a lawyer.” When it comes to the application of the leading ideas in computation, informatics and other allied disciplines, the market for legal services lags many other industries. In other words, yesterday’s fast is today’s slow and this is only the beginning.  Aided by growing access to large bodies of semi-structured legal information, the most disruptive of all possible displacing technologies -quantitative legal prediction (QLP) -now stands on the horizon. Although different variants of QLP exist, the march toward quantitative legal prediction will define much of the coming innovation in the legal services industry (and it will occur whether you like it or not).”

As the article proceeds it becomes clear Katz is talking of a profound but in some ways modest change, at least for now.  That is, how data can be harnessed to improve, rather than replace, lawyer judgments and in particular predictions about the cost, risk and outcome of cases.

The key to this process appears to be access to data and the ability to analyse human interactions with that data.  Thus just as Google has combined spelling algorithms with analysis of user search data, so perhaps can lawyers, law firms pioneer new approaches develop more automated approaches to legal tasks.  More likely is the scenario whereby outsiders with the scale, investment, data analysis capacity and lack of investment in current business models drive change.  A trouble with many of the examples that are used to illustrate this possibility is that they operate to predict behaviour in fairly stable systems: impressively complicated as a self-driving car is for instance, it operates within the boundaries of physical rules (but also the human unpredictability of those also on the road).  The development of IBM’s Watson, however, suggests greater potential for soft AI:

“From Yorktown Heights, New York -This is Jeopardy! – The IBM Challenge.”   On February 14, 2011 famed announcer Johnny Gilbert stepped to the microphone and unveiled the greatest example to date of performance computing that threatens the core of typical white collar work. The IBM Challenge pitted IBM Watson versus Brad Rutter and Ken Jennings, the two most successful Jeopardy champions in history. After the  multiday challenge there was a clear winner – Machines 2, Humans. Watson made it  look easy. On the edge of facing defeat, Jennings the 74 time consecutive Jeopardy champion stated: “I, for one, welcome our new computer overlords.”

“It is hard to understate just how difficult of a problem it is for a machine to compete in a game such as Jeopardy. Topics are wide ranging and include detailed questions in domains such as history, literature, politics, arts and entertainment, and science. Contestants often confront clues that “involve analyzing subtle meaning, irony, riddles, and other complexities in which humans excel and computers traditionally do not.” Finally, answers typically much be given very quickly – often in 2-3 seconds.

“Watson accomplishes its task without access to the internet and instead uses large  bodies of structured and semi-structured data as it interprets text and refines its answers.  Watson applies a mixture of technologies including Natural Language Processing (NLP),  Information Retrieval (IR), Knowledge Representation and Reasoning, and Machine  Learning (ML).

To be circumspect, Watson has the capacity to make what to human eyes look like baffling mistakes.  However, “It is [also] a working  computer system that is actively being applied to a variety of professional domains notably the field of medicine (i.e. data driven medicine) where individual doctors are called upon to analyze large amounts of information and rapidly execute the best possible judgment.” [e.g. including cancer care]

A crucial point is that, “Quantitative legal prediction [QLP] based technologies are designed to remedy and/or supplement the shortcomings of human reasoners.”   QLP has the potential to extend the data that a practitioner can take account of; counter biases in cognitive judgment (such as the influence of spectacular recent successes or failures); and thus facilitate professional judgment.  If it works.  If this sounds like science fiction it is worth noting that there was a sentencing support system in use in Scotland for some time (I think it may have fallen into disuse, but I stand to be corrected).  As Katz puts it, “the age of quantitative legal prediction is about a mixture of human + machines working together to outperform either working in isolation.”  Move over Allie McBeal or Rumpole; it is time for Cyborg Law?

Well probably something a bit gentler and less threatening, but very interesting nonetheless.  It is worth dwelling for a moment on the areas where QLP is being currently used.  Cost analystics to predict, manage and reduce costs are an area where data became plentiful and is easily analysable and ‘outsiders’ existed with a business opportunity and an increasingly willing client group (General Counsel).  “TyMetrix leveraged its existing relationships as providers of backend billing and payment software to various law departments.” As legal services become increasingly provided within networks of outsourcing as well as firms, the capacity and appetite for innovation may increase.  “Understanding large scale data aggregated across multiple clients was the key to garnering some deep insights, TyMetrix convinced it respective clients to pool and aggregate anonymized billing information for purposes of better understanding the contours of the respective legal marketplace. Using this and other associated metadata.” (See also http://www.datacert.com/ and http://www.skyanalytics.com/).

The disruptive power of greater price competition is still building across the legal services sector.  With question of price come doubts about quality.  It will be interesting to see how far metrics about cost diversify into quality.  Some UK firms have monitored case outcomes of fee earners in quantitative ways where outcomes are easily quantified and often repeated (personal injury cases being one example); the Legal Aid Board flirted with outcome monitoring of criminal practitioner (something which has been adopted in Chile where aquittal rates of defence lawyers are monitored to keep them up [HT Roger Smith]) and there is a history of formulating quality measurement in legal aid work more generally which proved valuable but labour intensive (peer review in particular).  Large scale legal service firms might develop and refine these approaches under pressure from institutional clients (or possibly regulators).

Katz is right to suggest that clients will begin to look more closely and critically at whether judgments about the quality of the lawyers they instruct are correct.  Law firm selection might also be more informed by a metrics based approach, pointing to Lawyer Metrics, “a company devoted to developing data driven and scientifically informed forecasting models that predict the future success of individual lawyers (particularly at or near the entry level) in law firms and other related legal enterprises. Their approach is designed to debias both the hiring decision and the subsequent employee evaluation process. In other words, Lawyer Metrics value proposition is linked to law firm efficiency and “huge gains to be made by focusing on traits or attributes that are actually correlated with performance.” (see their website here)  One of the biases they claim to have weeded out is the tendency to overrate candidates simply because they have the same educational background as those making the hiring decisions.  Ultimately, this may have more of an influence on diversifying the legal profession than (say) in vogue mentoring schemes, but they are not without limitations.

There are other examples of QLP.  Most famously The prediction of (US) Supreme Court decisions was done better by a decision tree than by a body of experts: “While the experts correctly forecast outcomes in 59.1% of cases, the machine got a full 75% right.” And, there is also crowd-sourced prediction, see for example, http://www.fantasyscotus.net/. If machines can predict supreme court cases it does not seem far fetched to suggest machines can assist in predicting optimal offers to settle in personal injury cases for instance.

[Survey now closed]

There are two surveys one by me and one by reputable psychologists.  Both surveys together take about 20 minutes.  They are fun, I think, and your data is recorded anonymously. Participation is entirely voluntary. The survey is primarily being conducted for teaching purposes (I am using it in a class in the New Year) but if there is sufficient response the results of the survey may be published, but will not identify you. A link at the end of the survey will enable you to request a copy of the results by email whilst still protecting your anonymity.

Many thanks in anticipation.

Firstly this is said:

The report is based on our Chief Ombudsman’s experience of complaints regarding residential conveyancing and the fact that he has seen an increasing amount of complaints relating to ‘fixed fee’ and ‘no move no fee’ agreements. It is therefore evidence based as a result of being informed by first-hand experience, even if this not necessarily statistically demonstrated.

I could critique this statement but I won’t because it does not answer my main question which was on what basis does LeO single out conveyancing ‘factories’ for concern?

The report tries to convey a sense of scale by figuratively describing ‘conveyancing factories’ when referring to volume conveyancers i.e. larger firms that tend to provide automated services like those described above. Essentially, they focus on offering services cheaply and conveniently and often online rather than face to face as was traditionally the case.

What we should notice here is the uncertainties as to what is meant by factories. They are described ‘figuratively’ (meaning, I think, metaphorically or symbollically). They tend to, but do not necessarily  provide automated services, they are cheap (most conveyancers are – in relative and historic terms  - cheap), they are (for shame) convenient.  They often, but do not always, provide services online.  So the definition is hazy, perhaps understandably so.  The real concern I have is in the next statement:

Comparing traditional firms with this new breed of firm wouldn’t necessarily bring any clarity to the argument we are putting forward as such large scale entities are still only just entering the market.”

Firstly, I am a bit doubtful about its  accuracy.  Solicitors have been complaining about conveyancing factories in the Gazette for quite a few years.  But let us assume it is correct. If it is so, then a rise in complaints associated with high volume providers of conveyancing services might be because they service high volumes of consumers.

Let me illustrate the point with some numbers.  Imagine that there are 1,000,000 conveyances done in one year. In 2011 all of those were done, let us fantasise, by small practices.  Let us imagine the complaints rate is 1%. In 2011 there would be 10,000 complaints from those firms.  Now let us imagine that in 2012 there are the same number of conveyances, but this time half of them are done by one high volume provider of conveyancing called Pileemhigh & Sellemcheap.  Let is assume the complaints rate for small firms and P&S is still 1%.  LeO would see 5,000 complaints from small firms and 5,000 complaints from P&S.  The increase in problems associated with high volume providers appears dramatic but is in fact nothing to do with P&S being a high volume producer or being worse than small firms.  It is simply caused by them having a high volume of clients.

The significance of the words, “Comparing traditional firms with this new breed of firm wouldn’t necessarily bring any clarity to the argument” should also be emphasised.  They have singled out large firms for criticism but appear to be saying they have not compared them with traditional or small firms.  Indeed, they come perilously close to saying the category of large and small has no meaning: “deciding what constitutes small, large, traditional, new etc is no easy task.”  Yet they have based a significant their thematic report in drawing just such a distinction.

May be this would not matter, but they also advise and seek to inform consumer choices based on the findings.

The way we purchase legal services is changing. Ten years ago you’d probably see a local solicitor on your high street, often in an office located above a shop. But things have moved on. Legal services are now also available online or through call centres. These modern alternatives might look more cost effective – since they have lower overheads by offering remote services – but they might also be based at the other end of the country.

However, this type of service delivery is more likely to work if your conveyancing transaction is straight forward without any particular issues. You may be taking a risk if anything unusual, or unexpected, crops up during the transaction. The individual responsible for your case may not have the same qualifications or experience as the lawyer on your local high street, which could mean that the advice you get may not be as informed as you’d like it to be.

Choose a method of service delivery which suits you. One size won’t fit all, but you need to be comfortable with the method of service delivery offered by your lawyer.

Now that advice may be right, or it may be wrong, but the evidence provided so far does not provide a basis for saying it and there is a risk consumers are being misinformed.

In truth the report is a weak piece  of work. It does not identify the causes of residential complaints in any meaningful sense.  We get a few stories (case studies) from actual complaints and some speculation from the Legal Ombudsman as to causes.  This does not amount to an evidence based analysis of the causes of the quality problems in the conveyancing market.  I’d expect to see some breakdown of the prevalance of problems by factories and ‘non-factories’ and a comparison of that prevalance against some analysis of the relative dominance of both sectors in the market.  We get neither and are entitled to have a better undertsanding of what the basis of this speculation is.

Nor are the case studies particularly plausible indicators that volume is a problem.  The case studies tend to relate to problems around charging fixed fees which turn out not to be fixed at all.  This could just as easily be a problem in ‘non-factory’ providers.  For it to be related to the high volume providers would suggest that they systematically misell their conveyancing services, intentionally or negligently; a very serious allegation potentially of fraud which would merit concerted action.  It will be interesting to hear what plans the LeO and/or the SRA/CLC has to deal with this.

That’s not to say the Ombudsman is wrong about factories. He may be right.  We are just no further forward on the published information.  Equally, pressure on fees is likely to impact on quality but that pressure is felt across all conveyancing firms, not just factories.

LeO is crucially placed to collect and monitor data which would show which sectors give rise to problems and what the causes are.  I look forward to the day when they do that.

The UCAS personal statement is an important non-academic indicator that many UK universities use as an integral part of their admissions processes. Up to half a million personal statements are written every year.

This report is the first to consider how they are shaped by applicants’ educational background. 309 personal statements were analysed, all of which were submitted to the same department of the same Russell Group university by students with the same A-level results.

Academic indicators, such as A-level grades, correlate closely with students’ school type and socio-economic status. However, non-academic indicators, such as the personal statement, are often assumed to bring greater fairness to university admissions processes. This research challenges that assumption, finding that independent school applicants are more likely to submit statements that are carefully crafted, written in an academically appropriate way, and filled with high status, relevant activities. By contrast, state school applicants appear to receive less help composing their statement, often struggling to draw on suitable work and life experience.

There are big differences in presentation. Clear writing errors are three times more common in the personal statements of applicants from sixth form colleges as those from independent schools.

Independent school applicants not only list the highest number of work-related activities, they also draw on the most prestigious experiences, often involving high-level placements and professionalised work-shadowing. One 18-year-old applicant’s experience includes working “for a designer in London, as a model …  on the trading floor of a London broker’s firm … with my local BBC radio station … events planning with a corporate 5 star country hotel … in the marketing team of a leading City law firm … and most recently managing a small gastro pub.”

For state school applicants, work-related activity is more likely to be a Saturday job or a school visit to a business.  School type is therefore an accurate predictor of key features that may affect admission tutors’  decisions. In the sample, these advantages translate into improved outcomes: 70% of applicants from independent schools ended up at one of the highest ranked universities in the UK but only 50% of those from comprehensives and colleges reached a similar destination.

This could be a factor in explaining the under-representation of some school types at highly selective universities.  “Ensure you stand out from the crowd” is UCAS’s advice to applicants when they compose their personal statement.

This research suggests that even among applicants with identical A-level results, some are much better equipped to do so than others.

I am left wondering if these concerns should have some resonance with Law Firms who are faced with the unenviable task of distinguishing between a sea of students with 2:1s.  I’ve got some sympathy with the thrust of the Sutton Trust research when one hears of law firms distinguishing students because, they like students with Grade 8 Oboe, because they know how to butter and eat a bread roll at dinner, or because they like students who can self-fund voluntary work abroad (all real examples).  I shudder at these examples partly because my experience up until very late into University involved doing a mean Peter Hook impression on New Order covers (cf Oboe); being dextrous with excuses for eating kebabs whilst a vegetarian; and a solitary claim to fame  that an actress on the kids programme Playschool once told my father I was the best at something (a state secret).  None of these I’d have dreamed of putting on a CV.  The real reason for shuddering though is that learning the Oboe or self-funding voluntary work are more or less impressive depending on the context of the particular student.   The key question is: which crowd is this applicant standing out from.

Of course, many firms increasingly work very hard to look at real aptitudes and skills in their selection of trainees.  It is to be hoped that a more meritocratic recruitment system can be evolved.  Work from the US is interesting in this regard.  It suggests successful lawyers are predicted not by the usual signifiers of status but by performance at law school.  Perhaps it is time for law schools to facilitate this process by looking at a more refined gradation of students than the 2:2, 2:1, 1 distinctions currently in operation.  Firms increasingly ask for class ranking, for instance, but I suspect the accuracy of the data they get back via references is of extremely variable quality.

7.48 Both Mr Myler and Mr Crone strongly denied that there was a culture of cover up at the NoTW. Mr Crone accepted that everyone hoped that “it would all go away” if it could be kept quiet,426 but contended that the thinking was not to cover up criminality but to avoid reputational damage through bad publicity.427 There is undoubtedly a fine line between the two. Mr Myler, similarly, said: 428  “I don’t believe it was a cover-up….and I don’t believe it’s wrong or unreasonable of any business to try to protect the reputation of itself, particularly after what had happened in the course of 2006 and 2007.”

7.49 Whatever the truth of what was discussed on 10 June 2008, the evidence outlined above points to a serious failure of governance within the NoTW, NI and News Corporation. There was a failure on the part of the management at the NoTW to take appropriate steps to investigate whether there was evidence of wrongdoing within the organisation. Although I endorse the right of any business to seek to protect its reputation, it surely must first take every step to get to the bottom of what had happened. To argue that the decision by the police to conclude their criminal investigations precluded the requirement for a proportionate  but robust internal investigation is, in the circumstances, of real concern; and the attitude at NoTW to the police investigation equally meant that reliance could not be put on their having done so. In any event, if the explanation of James and Rupert Murdoch is correct, far from simply limiting external damage to reputation, one or more parts of the management at the NoTW was engaged in a determined cover-up to keep relevant information about potential criminal activity within the organisation from senior management within NI.

7.50 Having made that point, however, I must make it clear that if James Murdoch was unaware of the allegations, his lack of knowledge is, at least in part, only as a result of chance, rather than as the consequence of a sustained campaign by Mr Myler or Mr Crone (if there was one) deliberately to keep him in the dark. The fact is that had he read, in detail, the entirety of the email that he received on 7 June 2008, there was sufficient to put him onto a line of enquiry which could have led to an investigation of the entire issue. It also depends on precisely what he was told on 10 June 2008.

7.51 It is sufficient to say that if James Murdoch had been the victim of a cover-up, or an attempt to minimise the gravity of the position, then the accountability and governance systems at NI would have to be considered to have broken down in an extremely serious respect. If  James Murdoch was not the victim of an internal cover up then the same criticism can be made of him as of Mr Myler or Mr Crone in respect of the failure to take appropriate action to deal with allegations of widespread criminality within the organisation.

7.52 A similar analysis stands in respect of News Corporation. Although there is no evidence from which I could safely infer that Rupert Murdoch was aware of a wider problem, it does not appear that he followed up (or arranged for his son to follow up) on the brief that he believed had been given to Mr Myler to “find out what the hell was going on”, leaving the matter solely in the hands of Mr Hinton. If News Corporation management, and in particular Rupert Murdoch, were aware of the allegations, it is obvious that action should have been taken to investigate them. If News Corporation were not aware of the allegations which, as  Rupert Murdoch has said, have cost the corporation many hundreds of millions of pounds, then there would appear to have been a significant failure in corporate governance and in particular in the effective identification and management of risks affecting NI and, thus, the corporation.

7.53 I have given careful consideration as to whether I should go further, and conclude that Mr Crone’s version of events as to what occurred on 10 June 2008 should be preferred to that of James Murdoch. There are aspects of the account of Mr Murdoch that cause me some concern: in particular, it is surprising if the gist of Mr Silverleaf’s opinion was not communicated to him in circumstances where the potential reputational damage to the company, of which he was CEO, was likely to be great if an early settlement of the claim brought by Mr Taylor were not achieved.

7.54 Furthermore, Mr Myler and Mr Crone had no reason or motive to conceal relevant facts from the senior man, as borne out by the former sending James Murdoch the chain of emails containing the ‘bad news’ on the afternoon of Saturday 7 June 2008. Not merely does this throw light on Mr Myler’s state of mind on that date, it provides some indication as to what the agenda might have been for the meeting three days later. On the other hand, I also have serious concerns about the evidence of Mr Crone and Mr Myler about this meeting: given the significance of the issue, it is surprising that there was not a full blown risk analysis with options for James Murdoch to consider. After all, this litigation represented the first of a number of potential actions and there was, at the very least, a real risk that the problems were likely to get worse as the other known victims (as represented by the criminal investigation if none other) could and doubtless would also pursue claims.

7.55 It is here that I must return to the Terms of Reference and to recognise that the detail of who knew what is properly part of Part 2 of this Inquiry not least because of the ongoing criminal investigation. Furthermore, the nature of the process of this part of the Inquiry has meant that, in relation to these extremely fact sensitive meetings, there has been insufficient opportunity for detailed cross examination of precisely what was said by whom to whom. In the circumstances, I do not seek to reach any conclusion about precisely what transpired at this meeting. For present purposes, it is sufficient to repeat that whoever’s account is correct as to what happened on 10 June 2008, there was no subsequent analysis of the consequences in relation to oversight and internal governance.

7.56 In truth, at no stage, did anybody drill down into the facts to answer the myriad of questions that could have been asked and which could be encompassed by the all embracing question “what the hell was going on”? These questions included what Mr Mulcaire had been doing for such rewards and for whom?; what oversight had been exercised in relation to the use of his services?; why had Mr Goodman felt it justifiable to involve himself in phone hacking?; why had he argued that he should be able to return to employment and why was he being (or why had been) paid off. On any showing, these questions were there to be asked and simple denials should not have been considered sufficient. This suggests a cover up by somebody and at more than one level. Although this conclusion might be parsimonious, it is more than sufficient to throw clear light on the culture, practices and ethics existing and operating at the News of the World at the material time. The way in which further litigation was managed (including the action brought by Max Clifford) only serves to underline the same issue both justifying and reinforcing the same conclusion.

Another passage meriting attention is this one:

8.212  On the remit of the internal investigations [conducted by Burton Copeland] Mr Myler said: 596

“My recollection was that a very thorough investigation took place where there was  a review of everything from how cash payments were processed …”

When asked about the width of the internal enquiry Mr Crone gave the following account: 597

“… By the time I got back, which must have been August 15, Burton Copeland were in  the office virtually every day or in contact with the office every day. My understanding  of their remit was that they were brought in to go over everything and find out what  had gone on, to liaise with the police … What I think was being enquired into was  what had gone on leading to the arrests; what, in the relationship with Mulcaire, did  we have to worry about. Burton Copeland came in; they were given absolutely freerange to ask whatever they wanted to ask. They did risk accounts and they have got  four lever-arch files of payment records, everything to do with Mulcaire, and there is  no evidence of anything going beyond in terms of knowledge into other activities.”

8.213  Again, these assertions cannot be tested because legal professional privilege has not been  waived in relation to the instructions given to Burton Copeland, the material provided, or,  indeed, any aspect of the work done. I do no more than record what Mr Crone said.

I am not sure Leveson LJ was correct to assume that privilege needed to be waived.  I think there was at least an argument that privilege had been impliedly waived by NI/NGN when they sough to rely on Burton Copleand’s investigation as evidence of their bona fides before the Culture Media and Sport Committee and there is also the potential application of the crime fraud exception (see here for example).  I am not criticising the judge; he may have felt that he did not need to take this issue on.  The testimony he had may have been  sufficient to deal with the questions under his remit, and I am guessing a ruling from him that Burton Copeland’s advice and instructions were no longer privileged would have provoked ancillary litigation.  Still, the police investigation and, if there is one, a Bar Standards investigation may yet prove more revealing.

“The Claimant is a litigant in person with no legal training and will seek appropriate guidance and directions from the court”.

And then proceeded:

With him in court was a law student in her second year at university. If he has had any other legal assistance, he did not say so (nor was he under any obligation to say so). He presented himself as being at a disadvantage faced with the very experienced lawyers representing ITV.

It is not uncommon for self represented litigants to invite the court to act as a source of guidance. The court is under an obligation to do justice, and so, where a litigant is without representation, the court will be bound to look for points in the litigant’s favour which the court would not have to look for if the litigant was represented. But the English legal system is adversarial. The court employs no legally qualified staff to assist the judge. Not only is the court without any means to provide such assistance, the court is also obliged to be impartial. A litigant who explicitly seeks the guidance of the court in the way that Mr O’Dwyer does is seeking what he may suppose to be free legal advice. But he is seeking it from a source which is unable to provide it, and it is certainly not free. The hearing before me has generated very substantial lawyer’s fees, and someone has to pay them.

In terms of knowledge of the law, Mr O’Dwyer was, of course, at a disadvantage. But that is not the only possible of view of the situation of the parties.

Miss Addy submitted that ITV was at risk of not recovering any costs that Mr O’Dwyer may be ordered to pay to ITV. The court has no information as to Mr O’Dwyer’s means.

If Mr O’Dwyer has financial means, the inequality in knowledge of the law has arisen by his own choice in not obtaining representation. The risk is that costs orders may be made against him, which would not have been made if he had been represented. If any such costs orders were to be made in this case, they would be likely to exceed by a substantial margin any costs which he might have had to incur to be represented.

If, on the other hand, Mr O’Dwyer has no means to obtain legal advice from a practitioner with experience of this area of the law, then he will not have the means to meet any substantial order for costs that may be made against him. If that is the situation, then it is ITV that is at a disadvantage vis à vis Mr O’Dwyer. If that is the position, it will stand to pay its own costs whether it wins or loses, whereas Mr O’Dwyer stands to only to win.

In practice the course adopted by Mr O’Dwyer in this case in seeking guidance from the court is extravagantly costly, whoever it may be who has to bear those costs.

Any experienced practitioner knowledgeable in the law of defamation would be likely to have given to Mr O’Dwyer advice broadly along the lines of the conclusions I have reached in this judgment. And that practitioner would have done that at a small fraction of the costs that have been incurred by ITV, and by the public (who pay for the courts and judges).

In Campbell at para [29] Lord Hoffmann said:

“I cannot however part with this case without some comment upon other problems which defamation litigation under CFAs is currently causing and which have given rise to concern that freedom of expression may be seriously inhibited. They are vividly illustrated by the recent judgment of Eady J in Turcu v News Group Newspapers Ltd
[2005] EWHC 799 (QB) 6. …

6.   [the claimant] is able to pursue his claim purely because [his lawyer] has been prepared to act on his behalf on the basis of a conditional fee agreement. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which [his lawyer] does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant’s solicitors including a substantial mark-up in respect of a success fee. The defendant’s position is thus wholly unenviable.

7. Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called “chilling effect” or “ransom factor” inherent in the conditional fee system, which was discussed by the Court of Appeal in King v Telegraph Group Ltd… This is a situation which could not have arisen in the past and is very much a modern development.”

The situation of defendants as described by Lord Hoffmann and Eady J is particularly unenviable. But it is a situation which can and does arise to a lesser (but still very serious) extent where a claim is pursued by a self represented litigant (or by any other litigant, who does not have a CFA), and who does not have the means to pay any order for costs that may be made against him.

In the present case Mr O’Dwyer had an alternative remedy, and for which he did not need to take any risk as to costs. He pursued that remedy. That was by way of complaint to Ofcom that he had suffered unfair treatment. That complaint was different from a complaint in libel, and it would in principle be possible to pursue both complaints. But Mr O’Dwyer’s complaint to Ofcom was not upheld.

Changes in the law relating to CFAs may improve the situation of some defendants. But it will not make any difference in cases where claimants are self represented. It is not clear that there is anything that the court or the legislature can do about this. In many cases self represented litigants have genuine grievances and their claims succeed. But the potential injustice to a defendant in the position of ITV is such that the court must exercise its powers of case management in the light of the overriding objective with great care. If a case cannot succeed, the sooner that is decided the better for everyone.

I am not going to comment on the possible rights and wrongs of the judges statements here, but what it shows for me is the unsuitability of party-driven, complex adjudication of what appear to be, in this case a rather simple dispute, which is most helpfully dealt with by the judge in two sentences: “The main basis for the decision I have reached is that it is not arguable that the Programme harmed Mr O’Dwyer’s reputation. Rather it portrays him (whether rightly or wrongly) as the victim of serious assaults, and other wrongs, suffered in the course of an attempt to buy a house for his family.” Strip out the procedural points about evidence, and pleadings, and what may proceed as an allegation which may then be found to be defamatory and this would be all that needed to be said.  An Ombudsman, with statutory powers to decide such cases to the (normal) exclusion of the courts, would be freer to do just that.

My concern is exacerbated by an impression that both claimants and defendants use legal costs as a powerful weapon. It discourages claims and makes the financial consequences of those claims, rather than the substance of those claims, the important issue. The one rogue journalist defence is the best example of a claim round which substantial legal and media resources coalesced to attempt to mislead claimants, the public and parliament. The resources of the law were put to work to construct and manage this claim. It was disastrous, but it came very close to working. The threat of a claim can stymie important reporting and debate in the press, academia and the blogosphere.

I believe there may be an effective alternative to such an adversarial approach that reduces costs for the media, opens up redress to the ordinary citizenry and reduces the potential chilling effect that arises from the threat of litigation and its attendant costs. In particular, I believe it can be argued that an inquisitorial, ombudsman system for the resolution of complaints against the press can provide a significant advance for access to justice and, as it happens, improve the ethicality of the press.

It is axiomatic to my argument that legal costs exert a powerfully negative influence on free speech and the assertion of legitimate claims for redress where privacy or reputation has been violated. Reducing those costs is essential to promoting both free speech and effective redress. A system which relies on both sides instructing lawyers to pursue case through the courts, or through tribunals, or via mediation is a system which is inherently costly. Adversarialism naturally drives increases in cost. It also drives increases in the complexity of law. Specialist lawyers tend to increase the complexity of the law in their area. Judges keen to do justice between the parties have an incentive to increase complexity when seeking to distinguish cases. The natural way of the common law tends towards the complex interaction of cases facts and substantive law. There can be benefits to that system but those benefits depend on all parties who wish to rely on the law having equal access to advice.

Mediation and tribunals seek to bolt on more lay friendly processes to ameliorate some of these difficulties but rely on the backdrop of adversarial representation. I will make only a few points that could be made here. Where at least one party can afford representation, the tendency is for informal processes to be colonised by lawyers and the formalism which they are designed to resist. Informal processes look and feel increasingly like courts and frighten off ordinary parties. The second is that responsibility for investigation and presentation of the case tends to remain with the parties. That puts a party without the relevant information and/or without representation at a significant disadvantage. It also means that either or both parties put significant, and some of it wasteful, resource into investigating and building their case. The opportunities to game or stonewall the opponent in that process are significant. Opportunities to misrepresent claims and, as we have seen, defences, are also apparent inspire of professional obligations not to do so.

Ombudsman approaches are different. They put the power of investigation and adjudication in the hands of an independent Ombudsman’s office. They can recruit and develop sector specific expertise in ways less easy for the judiciary. They act like an inquisitorial judge. They do not have to rely on how complainants frame complaints and how defendants defend them. Interestingly, research on the Financial Ombudsman Service by Sharon Gilad suggests, Ombudsmen can overcome some of the power imbalance between represented and unrepresented parties. They can bypass the lawyers and speak directly to those involved in a matter. They can do so quickly and without the polishing of evidence seen in, for instance, a recent High Court case (not a libel case).

Crucially, this reduces the need for parties to involve lawyers (although they may continue to do so, they can be prevented from threatening their opponents with these costs). A further benefit is that,whilst Ombudsmen can settle or adjudicate cases, and settlements could remain confidential, the Ombudsman has the necessary knowledge to understand if complaints or patterns of complaint suggest broader concerns in a particular sector. The public interest in not brushing chronic problems under the carpet is balanced with the parties desire for confidentiality in a particular case. Furthermore, there may be significant benefits in terms of evolving solutions to cases: non financial remedies might be much more strongly prioritised where an Ombudsman deals than where a court, with lawyers and their funding models perhaps contingent on final outcomes, is in play. Similarly, the rules which govern journalists and claims against them, can be kept simpler: a genuine codification can be managed without the complexity that is driven by common law adjudication.

The final, but most significant benefit is cost. The need for representation is removed. Parties choose to instruct lawyers can more fairly be told to bear their own costs. Barriers to making or defending a claim are significantly reduced. Speech is freer as is the vindication of our other rights.

To be sure there are drawbacks. It will still be claimed that the full majesty of adversarial justice is better at seeking out the truth. That may be true, although I find myself wondering how many NightJacks there are or how often evidence is overly polished. One suspects and hopes the answer is, not often, but the critical point is that the majesty of adversarial justice is beyond the pockets of mere mortals, and most cases do not need or benefit from it. Justice might be a little rougher, but the consequences of a decision would be less serious (in cost terms) and if access to justice is increased more people would be likely to benefit than would lose out. The people who would benefit would more often than not be the powerless not the powerful: smaller publishers – who could opt in- and Individual claimants of limited means. Costs reductions could serve the interests of media and claimants. The media would have to resource an Ombudsman (along the lines being proposed for an independent regulator) but a reduction in their own legal costs (and the size of compensation payments if non financial redress developed well) and the ending of payments they make to claimants lawyers sides should offset those costs. Another way of putting this is that such an approach should be cheaper than any of the alternatives on offer. To ensure this the Ombudsman needs to be robust in dealing with vexatious claims and defences, an ability dependent upon its legitimacy and independence, but if they are, there is a real possibility that the system will be improved.

_______________________________

You’ve changed…  I have heard this a few times over the last couple of months. Sometimes said in jest, sometimes seriously and, on one occasion, as an accusatory statement!  Of course I’ve changed, personally and professionally.  We all do.  It’s called life.

Lawyers operate in an ever changing environment.  Our law firms, our colleagues, our clients, our clients’ needs, the law…the list goes on.  Even without holding the title ‘change management specialist’ it’s what we do naturally every day.  Sometimes we like change and embrace it. Sometimes we resist change and reject it and sometimes we are made to feel that we are in a cycle of ‘change for change’s sake’.  That counterproductive period of our working lives where we feel that we are being asked to do something that simply is a waste of our time.  We have better things to do.

I think I am going to put reference to the solicitor’s rules of practice into the last category because it still seems largely unpopular.  The change from prescriptive rules of practice to outcome focused regulation has been embedded for over 12 months now yet in some quarters the changes remain as unpopular a subject as Christmas is to turkeys.  I’ve heard so many references to the unworkable, time-consuming rules, the lack of ‘safe harbour’ advice and the uncertainty that has been created since the move from prescriptive rules of practice.  This does seem a little odd when the work done by lawyers (day in, day out) is outcome focused: “I want a divorce/to buy a house/to write a will/to get compensation/buy a company”.  If we are instructed we think about the objective, what we need to achieve, we plan, we consult, we advise, we record, we learn and we take that experience and feed it into the next client meeting or set of instructions.  We are working in the business of change management and we’re outcome focused.

Recently I spoke to a large group of lawyers on the subject of customer service.  It was natural for me to include reference to the Code of Conduct and the requirement to achieve mandatory outcomes on the treatment of clients.  It generated one of those tumbleweed moments.  I probed a bit further…did they understand the outcomes?  A little bit further…had they read the outcomes?  A few started to come back to me but the overwhelming majority were ambivalent about their regulatory environment including those who were relatively fresh out of the learning environment.  I probed a bit further with each group and ascertained a range of responses for the ambivalence: some felt it was the job of the firm to deal with compliance(particularly those from large firms), some felt that they simply ‘knew’ the right from the wrong side of the line, some felt disgruntled and directed me to their professional qualifications; they simply knew how to treat clients and were always looking out for their best interests.  We moved on to talk about compliant handling with a short introduction to mediation skills and the ‘art’ of conflict resolution.  For most these were new skills but ones that sparked interest.  Swapping stories of ‘bad’ experiences and discussing ways to diffuse and to de-escalate was a useful exercise for many but what I found disappointing was how few knew their firm’s complaint process or where to access that information.  I began to question the delivery of the compliance information but at the same time asked the attendees to explain why they felt no personal responsibility to empower themselves about their regulatory environment.  Is it not like getting behind the wheel of a car without reading the Highway Code?  Granted we may know much about the road network from our time as a passenger but how about the compliance points, the speed limits and the road signs?  It may be fair to say that this analogy is incorrect: the outcome is unlikely to be death or serious injury if you provide representation recklessly or without due care and consideration.

As those within the training group represented a mixed bag of experiences I took to Twitter for a little bit of crowd sourcing on the experience of recent LPC graduates.  The responses were representative of the training group ranging from great educational experiences of regulation meaning they felt well prepared (but nervous) to those who felt compliance had not featuring strongly or the in-firm training experience gave little consideration to it.  For all, turning what they had learned into practice was challenging, particularly with all of the other pressures of the training/working environment and many said that they were simply left to getting on with the job of delivering the law.

Of course it’s not just law newbies.  The rules also apply to those of us who are long in the tooth and used to many years of being told what and how to do things by our regulators!  There is the possibility that those leaving the legal education environment are more empowered on the subject of outcome focused regulation that those who are training them.  After all, despite their massive learning curve they don’t have to compare and contrast old with new rules.  They’ve not had to change and have the ‘luxury’ of embracing the landscape as is. Of us ‘old-timers’ how many have embraced the changes, accepted them as our new norm and are now educating new entrants or existing employees on this standard?  Is there a possibility that many hold views similar to the training group and continue to be stuck in a counterproductive relationship with our regulatory environment?  Could there be those that continue to see change as an unnecessary drain on their time and resources and are failing to educate new entrants on the new ways because of it?  It’s easy to see examples, just look at the headlines of the firms who have still not nominated into their COLP and COFA roles despite the time limit having been long passed.

Whether we agree or disagree with the regulatory approach the landscape is now one of OFR.  The challenge across the education arena, including CPD and law firms, is how you raise the basic level of awareness and understanding of this landscape consistently across the profession from new entrants to established practitioners so that the new order forms the new bedrock of the delivery of legal services.

The form was revised because the Administrative Court faces an ever increasing large volume of applications in respect of pending removals said to require immediate consideration. Many are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight. In many of these applications the person concerned has known for some time, at least a matter of days, of his removal. Many of these cases are totally without merit. The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal. R(on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin

In other words, the inference draw is that applications are brought tactically late and with low merits; the lawyer has prioritised the interest of a client over the public interest in the administration of justice.  Another way of thinking about this is that it is a criticism that the lawyers are taking too adversarial an approach to their cases; doing anything they can do for their clients without due regard to whether they are abusing legal process.

In the Hamid judgment it is said that it is a professional requirement of such applications that “Counsel or solicitors attending ex parte before the judge in the Administrative Court…   obligations (a) to draw the judge’s attention to any matter adverse to their clients’ case, including in particular any previous adverse decisions; and (b) to take a full note of the judge’s judgment or reasons, which should then be submitted to the judge for approval.”

In the more recent case Thomas LJ deals with three solicitors for failure to comply with these obligations.  Somewhat surprisingly, one relates to a renewed application in the same case of Hamid.  Thomas LJ says, “an application was made again to this court on virtually the same points. However the application contained no disclosure whatsoever of the previous application and its failure. There was without any doubt a gross breach of the obligation of disclosure that arises on an ex parte application.”

Interestingly, the Court is seeking to involve the SRA in checking on remedial action but not referring the solicitors (who have apologised to the court) for disciplinary investigation.  In the second case there was a failure to draw, “the court’s attention in the application that, first of all, the evidence of the applicant had been rejected as not credible, secondly, that permission to appeal had not been admitted and thirdly that therefore there was no pending appeal before the Upper Tribunal.”   In the third case, the submission that was made to the judge did not contain anything, “to the effect that the application before the Immigration Judge had failed because N’s evidence was not credible, that the application was being made because there was fresh evidence, and drawing to the judge’s attention in the submission the fact that the Secretary of State had stated that the three documents relied on had been before the Immigration Judge and that the other document was inconsistent and was not verifiable. “

The judge emphasises the difference of ex parte process:

“The court relies upon those in the legal profession for the performance of that obligation in entertaining ex parte (or without notice) applications. It must be appreciated, in particular in this kind of case where on many days this court is faced with a very large number of applications, that it is absolutely essential that there is put on the face of the submission all the points that tell against the grant of relief; that is the absolute duty of the solicitor or counsel.”

He also opines to the effect that failing to disclose relevant detrimental material was a tactic used to disguise the apparently hopeless nature of these cases.  In the light of recent reporting of judicial review outcomes this is an important observation.  Whilst the judge’s action with regard to these solicitors is restrained, it is to be wondered whether the SRA will  be more extensive in their approach than dealing with the one firm referred to them for checking.

If Thomas LJ is right about the underlying problem, which appears to be partly a competence issue (a failure to understand and implement the court’s own requirements) and partly a broader question about understanding the ethical role of a lawyer when dealing with courts, in particular when dealing with ex parte applications, then we might expect more thoroughgoing and sector wide response from the SRA.  After all, a risk has been identified; it is alleged it is widespread; and – on the face of it – it is impacting on immigration cases; may be leaking over into how immigration clients with good cases are being dealt with; and may also be contaminating broader debates about the merits of judicial review.

—-

p.s. the comments are worth a read as is a follow up post:

http://www.freemovement.org.uk/2012/11/21/open-season-on-immigration-lawyers/

He is, I think, on safer ground in questioning the assumption that, “the present system is not fit for purpose” something which the LETR has not really said but others have.   I, like Lord Neuberger, rather deprecate the fitness for purpose language, and Neuberger mounts a robust defence

“there is real reason for doubting  whether there is that much wrong. UK lawyers enjoy a high worldwide reputation. Places on our university law degrees, at both undergraduate and postgraduate level, are highly sought after. Research and publications of academics in our universities are of high value and enjoy international recognition. Our courts and our substantive law are prized throughout the world – not only by those who seek to litigate in our courts, but also by those who seek our judges and lawyers out to assist them in the development of their laws and justice systems. Some of these points may largely apply to the more financially rewarding end of the profession. Nonetheless, they do firmly shift the onus on to those asserting education and training is unfit for purpose.”

The global perspective is an interesting one because whilst there is much to agree with  here it should also be noted that about half of all solicitors come from outside the standard law degree route; and a good proportion of the other half come from overseas.  Universities are increasingly engaged, especially at the end of the market with which Neuberger’s comments engage, in a global competition.  There is an oft-talked of threat to the solicitors qualification posed by the New York Bar (I am not convinced by that myself, but do not know enough about it) but also the emerging, and rapidly developing strength of the Asian market, where the growing strength of local Universities is something to be watched keenly.  It is not for any old reason that the College of Law have opened up in Singapore.

There is another oddity, which is the criticism of the review starting in the wrong place.  Again, I think this is unfair. It is a criticism based on a statement on the LETR’s website where they summarise the LETR’s aims:

The primary objective of the Review is to ensure that England and Wales has a legal education and training system which  advances the regulatory objectives contained in the Legal Services Act 2007, and particularly the need to protect and promote the interests of consumers and to ensure an independent, strong, diverse and effective legal profession.

Lord Neuberger interprets these words  in the following terms, “It is worrying that the Review decided to describe its fundamental aim as directed to only two of the regulatory objectives, the interests of consumers, and a diverse and effective legal profession.”  This is a rather strained interpretation of the words the LETR use on its site.  It also ignores the substantial debates about the role of ethics in legal education and the strong public interest focus in the LETR’s broader work (I am thinking especially of Discussion Paper 2).

One would not criticise a judge who, after all, has rather more pressing things to concern himself with than wading through pages of LETR documentation, were it not for the emphasis that he puts on this “deformed theodolite”.  There is no doubting the emphasis intended when one reads the words, “Its report into the case for reform may therefore be unbalanced or worse.”  This is a very strong attack and it needs to be well founded if it is to be made. Having warned the LSB, quite rightly, against prejudging the review he appears to have done the same.  Having framed in a very public way a debate about the LETR in terms of whether the LETR might somehow be deeply unbalanced, it will make it less likely – not more – that the collaborative work that will be necessary to successful change in legal education will take place.

An intriguing fact is that the Bar has been growing slowly but steadily for some time and that growth has slightly accelerated.  It remains to be seen whether this remains the case: with legal aid cuts and the Jackson around the corner, things could get very messy, especially at the the junior end of the Bar.

The reasons for growth may be historic ones (if retirement rates from the profession have slowed relative to entry (say) 10 or more years ago then the profession will grow, for instance.  We know that pupillage numbers have declined and the age profile of the Bar suggests most growth in the 40yr plus categories. This would be consistent with the understanding that this change reflects long standing increases in recruitment relative to retirement.  It would also be consistent with an alternative explanation (voiced to me by several people on Twitter including, in particular, Matt Seys-Llewellyn (@sesssays) who suggested that it may reflect more transfers in to the Bar from Solicitors).  It would be a very interesting shift in approach if the Bar sought to recruit more from experienced practitioners and less from a pool of talented but untried undergraduates/BPTC students.  We do not have the data to know if the supposed trend is real (as Matt suggested to me, the Bar might look at data on age against years call as a proxy).  There’s merit and risk in the Bar taking this approach; it will naturally enough worry about missing out on the brightest talent emerging from the nations law schools and GDL courses.  Conversely, new barristers and their chambers will have a wider grounding and better grasp of their own aptitudes.  Chambers would have to think about how they prise the really good lawyers out of perhaps more stable and prosperous law firms.

The second area of particular interest is around pupillage and tenancies.  The Barometer says 41% of pupils in the last year for which data is available were women, but 52% of tenants were women (2010/11).  This is one year’s data, inconsistent with previous trends, so one should not put too much emphasis on it, but is it possible that Chambers have recruited a weaker cohort of men (who may fit more closely to type) and then discovered that it is the women who perform better?  That would not be a terribly large surprise especially if the women have better qualifications than the men (we have no clue about that from this data but the Law Society’s Annual Statistical Report tends to show strongly better qualifications of women trainees).

There are a number of other interesting statistics worth highlighting.

62% of sole practitioners are men .  It would be interesting to know more about this group.  They appear more likely to be BME practitioners than others in private practice.

There appears to be a dramatic slide in BPTC pass rates from a high of 94% to 66% over three or four years.  It may be this is due to changes made in shifting from the BVC to the BPTC and the increase in pass mark requirement, but the data looks like more of a trend than a step change to me.  There are also some queries about the way this data is reported, so it is not clear when like is being compared with like.  If the trend is real though this raises the question; is the marking of the BPTC getting tougher in response to tougher market conditions?  It’s a concerning idea, but not one without an upside: 85% of pupil barristers get an outstanding or very competent.  Failing could be seen here as a cruel way of being kind.

The decline in pupillage numbers is a pretty steady trend.  There is some volatility but women are more hit by this than than men (making the point about levels of relative qualification even more interesting).  Furthermore, the drop in pupillages also appears to have hit BME students more.  There were 20% BME pupils in 06/07, 13% in 2010/11. Here, as in other areas, there is the potential for missing data (Barristers who will not report their ethnicity, or age or whatever) to have an impact.  Happily, the Bar is getting better at recording this data: an important improvement for the regulator and its members.

A few more nuggets.  Very interestingly, 23% of pupils have no debt.  This is astonishingly high, especially in the current climate.  35% of pupils come from Oxbridge (cf. 5.5% UCL, Kings and LSE).  35% of pupils have a first class degree.  8% of pupils self-id’ed as gay or bi-sexual.  0.2% (3) pupils had third class degrees (the BSB has a special discretion to waive the entry requirements).  It would be interesting to know if they were asked to sit the incoming aptitude test. [*innocent face*]

The issue is more prosaically put in the context of referral fees.  The Bar are generally incandescent about referral fees, and not entirely without justification.  There are two reasons. One virtuous, the other less so.  Firstly, referral fees do have the potential for malodorous influence on client ‘choice’ of lawyer.  They are right to be concerned about this.  The second is that, given their historic but eroding, position as a referral only profession, they are in a weaker position to compete for clients in the brave new world of competition that is upon us; so it is more in their interest than solicitors to kick up about referral fees.  Virtue and self interest align their critique.

This leads me back to the reasons behind chambers mergers.  What is it that larger, merged chambers of independent practitioners get that they do not have as smaller chambers?  There may be (I suspect modest) economies of scale around things like library and accommodation costs; but it is the role of (a larger) chambers in the attraction and distribution of work that is – I assume – the real prize here.  Often this is about reputational capital.  Clients, even relatively sophisticated purchasers, struggle to assess the quality of lawyers, and so size and the reputation of stars or chambers generally acts as a proxy.  Mrs So and So was a bloody marvel on the last case we instructed, but she’s not available; so lets see who else they’ve got.  Clerks may be asked to recommend someone (and I’d be interested to know if  experiences as a young practitioner of being recommended utter duds, occasionally, by clerks eager to keep work in-chambers is unique).  Barristers pay chambers fees partly to cover costs and partly because the clerks (and the reputation of chambers) get them the work.  Conceptually, part of this is a referral fee.

There are other signs that chambers operate organisationally not institutionally: discounting ‘low-level’ criminal brief fees for junior members to keep the more remunerative work rolling in for senior members and the oft-reported pressure to keep repeat clients happy with the tenor of advice being to others.

That is not to say that the chambers system is a bad, or corrupt one, or that more overt referral fee approaches are not worse; but it does mean that the Bar might have to think  carefully about how it balances its organisational identities and its independence claims, as well as its ethical obligations (conflict of interest rules come to mind and greater use of direct access may mean the potential for clerks to over-sell the competencies of their colleagues is increased).

He reports that some of the journalists,

“would like to help Scotland Yard police who are investigating the alleged paying of public officials but feel constrained from doing so because of the unique situation in which they find themselves.

“They say they have refused to answer questions because they fear News International might react by refusing to go on paying their wages and also by cutting off the funding for the lawyers hired to act for them.

The implication appears to be that the journalists might incriminate more senior executives within the Company but for the risk to their jobs and to their legal funding.

The more serious insinuation from the point of view of this blog is that advice to remain silent may be influenced by who is funding the advice, though the words of the informants do not appear to actually make that allegation:

“One of them said: “I do trust my lawyer, and I understand that it’s normal practice not to answer questions. On the other hand, I don’t see why I should be in this position when other people in the office knew all about the money I paid and why I paid it.

…The second person, speaking separately and unaware of the other source’s statement, also said he accepted legal advice not to answer questions.

He said he did not believe his lawyer had a conflict of interest and accepted his advice. Nevertheless, he is anxious to give his side of the story and is aware that this would involve the naming of names.

The informants concerns are influenced by the absence of police offers of immunity deals. According to the story, police have not so far made an offer of immunity from prosecution should the journalists speak out. This was confirmed by the other journalist. Hopes that the police might offer a deal were crushed when an officer told him that he did not expect that to happen.

He said: “Consider how weird our situation is. The evidence against us that led to our arrests and possible prosecution was provided by News International through its management and standards committee (MSC).

An interesting question not answered by the story if whether the employees understand the adverse inferences that can be drawn from their silence should they run defences which have not been mentioned in interviews. A lot will depend, I would guess, on the extent to which the lawyers think their clients have meaningful defences and the extent to which the police have sufficient evidence to mount a case against the individual journalists. Both issues would affect whether it is wise to remain silent in an interview.

Under the solicitors code of conduct those giving advice to the journalists are obliged not to let their independence be compromised. That there is a risk of compromise is clear; but there are two possibilities – News International is behaving as a good employer standing by their employees or it is covering its own back. It would be interesting to know the extent to which clients have made their lawyers aware of their concerns and how the lawyers have responded to those. If they are not aware, the funding of their client defences operates as a barrier to their ability to take proper instructions.

This may well be through no fault of their own. They will owe their clients not News International duties of loyalty and confidentiality. Are such duties being implemented clearly enough and persuasively enough to encourage the proper level of trust between lawyers and clients? The implication of the story is that the lawyers are doing fine. There is a somewhat laboured emphasis that, “Neither journalist was in the least critical of their legal advisers. They understand that a lawyer’s responsibility is to represent the client (and not the paymaster).” And yet the implication appears to be that the funding arrangements have compromised the lawyer client relationship.

The issue of whether such funding should be permitted needs some thought and scrutiny.

* I am grateful to Neil Wallis for pointing out that the cases under scrutiny are probably operation Elvedon cases about payments to public officials not cases where hacking is being investigated.

On one level Reed Smith’s knowledge gained through their handling of litigation for the BBC and though a number of secondments of its lawyers to the Beeb may mean the Inquiries have a better immediate grip on how things may work behind the scenes.  It may make the process a bit cheaper.  Conversely, there may potential for normal cognitive biases to influence Reed Smith lawyers towards seeing things in the way that their client has seen things.  I do not suggest bias in any sinister or conscious sense, just that Reed Smith may be more likely to see things as the BBC have seen things.  Conversely the opposite is possible, a tendency to see bodies buried where they may not be (because they come from the mindset which spots problems for this particular client).

So in one sense, our view on this might depend on one’s belief about the relative benefits versus the potential detriments of using a firm with some inside knowledge.  It should also be emphasised that the firm are acting as Secretariat, not investigator per se.  Their work will – it is to be expected – be subject to a significant degree of forensic scrutiny.

There are a number of potential bear traps down the line.  Has the BBC waived professional privilege by appointing RS to the inquiry?  I can conceive of an argument which says that there should be absolutely no impediment in Reed Smith conducting the work and so privilege either has been waived impliedly or ought to be waived expressly.  Another issue is what happens if their investigations expose wrong doing outside of the terms of their remit?  This was, on one interpretation, what happened when News International had (then) Harbottle and Lewis managing partner, Laurence Abramson, independently investigated Clive Goodman’s allegations against News International (I have blogged on that here). Whether or not Abramson did anything wrong, quite a few of the later problems arose from that investigation and the way it was then used by the client, News Group International.  Reed Smith and those leading the Investigations may need to be very clear on what they will do if their review discloses potential wrongdoing outside the terms of their remit.

Ultimately, in terms of professional regulation, there is the problem of conflict of interest.  The SRA rules are here.   Should Reed Smith have had any involvement in prior matters which are associated with the two investigations then the likelihood of an actual or potential conflict between their own interests and the clients grows significantly.  There may, however, be no problem of solicitor client conflict if there has been no such involvement.  What of a conflict between the BBC and the Inquiry itself?  Are they two current clients whom there may be a conflict between?  A not unrelated question is who is paying for this work?

It is an interesting question: who is the client in relation to the Investigations?  Is it the Investigation itself, the chair of the Investigation, or the BBC?  If not the BBC, at what point is there a substantial risk of a conflict between the BBC and that other client?  My initial reaction: one has to do a bit of intellectual gymnastics to think that the answer is not immediately.  It might be argued that there is a substantially common interest between the BBC and the investigation lead, but that is a rather strained interpretation and difficult to know in advance of the Investigation itself.  The safer thing to do would be to not act; particularly in the absence of a very strong rationale for having this particular firm taking the work. If there is some risk and not much benefit, why have any risk of conflict?

Ultimately there is also the important perception problem: will the investigation be seen as independent if a firm with a prior relationship with the BBC has a pivotal role in the case?  Again, the answer seems obvious – there is a significant problem of perception, although there may be some countervailing benefit which outweighs this concern to whoever the client is.  In identifying that we keep returning to the key question: why is it in the interests of the Inquiry that this firm get the job of Secretariat?

James Daffurn, head of corporate responsibility at Freshfields Bruckhaus Deringer, makes a number of interesting points: ‘While we would like to see our volunteering hours rise, we are far more interested in the impact of our work.’  He then goes on to say: “However, when it comes to valuing pro bono work, it is often a case of comparing apples with pears, he adds. ‘There is a real need for a standardised approach: many firms still use full charge-out rates when putting a value on their pro bono efforts, rather than adopting an internationally recognised standard where pro bono work is valued using discounted rates which aim to reflect the cost to the firm of providing the service.’”  Thus moving from saying impact is important to suggesting what they need is a standard calculation of input because he is keenly aware of the difficulty of really measuring impact.

An interesting question is what is that need to quantify there for?  One can imagine that if firms were simply aiming to provide some more ‘access to justice’ then as a matter of efficiency it would be useful to have a calculation of what it costs the firm to provide its volunteer programmes.  It could then compare those costs against providing actual funding for (say) a Law Centre (as some firms do).  If providing funding to a Law Centre is more efficient then it might make more sense to do that and have their own lawyers earn the fees that fund that work.  Those kinds of calculation could be made in private and inform decisions about pro bono activity.  In terms of helping actual clients it would almost certainly be more efficient.

Of course, firms motivations for doing pro bono are more complicated than that: potentially there are educational and morale benefits in such programmes, quite aside from the substantive benefit to any clients of the pro bono lawyers.  There are also marketing benefits.

The need for measures of impact or input seems to be driven by a ‘need’ to compare firms against each other.  This is why we see the costification of pro bono work whereby the number of hours worked pro bono is multiplied by hourly charging rates (sometimes actual sometimes a notional blended rate). In economic terms this is the wrong approach; it is the opportunity cost of doing pro bono work which would have to be costed – the value of the work that is forgone by doing pro bono is almost certainly less than the chargeable hours spent on pro bono.  It would be genuinely interesting to think about the impact of pro bono programmes, though often one would be comparing apples and pears: funding a local Law centre worker has a quite different impact to conducting a death row case and that would be different to helping Scope raise funds with a new kind of bond (as Linklaters and Weil Gotshal & Manges have done).

Developing international standards of inputs might help drive competition between firms to show who does the most pro bono, of course (although it would inevitably lead to some gaming of the figures).  One approach would be to publish hours per partner and employees.  Maybe the sensible approach is to accept that the data is going to be rough and ready and encourage firms towards a calculation of inputs (hours time hourly rates applied to the actual fee earner) against revenues.  It is not perfect but it perhaps provides a more meaningful indication of the relative size of a pro bono commitment within a firm.  It would also provide an interesting comparison between the size of firm pro bono programmes and others.  The Gazette piece has the College of Law’s pro bono contribution costed at £500,000.  I’d wager that as a proportion of the College’s not inconsiderable revenue that is a considerably more sizeable contribution than most firms.  They have an incentive to do it because it helps the employability of their students; but it is a contribution not to be sneezed at.

The broad thrust of the paper, naturally enough for Richard, is that the legal services market is in the process of being transformed partly by economic forces (pressure to provide “more for or less”) and partly by the incoming tide of information technology. I agree, broadly, with thrust of his argument here. I think there is a possibility that the “more for less” pressure is a temporary impact of the recession but this is unlikely.  The recession’s extended and global  nature will probably give sophisticated purchasers long enough to grow accustomed to greater control of cost for the temporary to become permanent.  The key test will be, if/when there is an oversupply of ‘bet the farm’ work, which allows large firms to regain the upper hand.

This leads to my second point. Susskind makes some play of clients’ reluctance to pay for law firms to train young lawyers. The point is actually more nuanced than it appears. Clients will inevitably, in one form or another, pay for the training of those who they instruct. The money has to come from somewhere. A training system cannot miraculously support itself.

What the clients are really railing against is using costly individuals (trainee solicitors and young associates) to do jobs which can be done much more cheaply partly as a training opportunity and partly as a profit driver. It is not the training costs that clients should really object to but the exploitation of training as a profit opportunity using hourly billing. Indeed clients may see real value in firms investing in training and development in more general terms (think for a minute how Susskind’s point that Ernst & Young’s spend 10% of fee income on training and development goes down with clients; not at all badly, I would wager).

He makes a number of interesting points around e-learning and how genuine innovation may improve rather than cheapen educational process. Here there are two issues: one is does it really work? I am a long way from being a sceptic on this but innovators and traditionalists are both prone to hide the failings of their own approaches, not in any cynical way but because of natural bias created by one’s own enthusiasms. I firmly believe that legal educators should innovate and that this will inevitably lead to mistakes as well as real benefits. The second issue is in many ways more substantial. Whilst there are cultural and other barriers particularly in the traditional university sector to such change there will also be a need for substantial investment by brave University leaders if innovation is to be attempted properly. Universities risk being outflanked by commercial providers here.  At this point in time, most academics would take the view: let us be outflanked.

There is an interesting debate about whether lawyers need just-in-case or just-in-time knowledge. It is a very interesting debate on which there is almost no proper evidence (although my own studies of professionally qualified generalists vs specialists non-solicitors suggests the benefits of just in case knowledge are overstated). I confess to having no settled view. One of course sees the efficiency benefits of just-in-time knowledge, and specialisation plainly works for the most apart to improve quality.  Nevertheless, a major risk of that approach is someone without an appropriate breath of underlying basics doesn’t realise when they need to go find some knowledge “just-in-time”.  It may also, ironically, inhibit innovation.  We all know the importance of recognising the limits of our own competence but knowing what you do not know is not something you can be taught “just-in-time”.

That there are some very interesting passages on the need for greater engagement between academics and practitioners.  I too agree this creates significant problems. Similarly Susskind’s  belief that, “aspiring lawyers [new] engaged by the theoretical underpinnings of the law, by its history and origins, its structure and nature, and its impact on society more generally” is a vital guide to understanding what a liberal legal education should deliver and, as it happens, what properly professional lawyers need.

His holding up of the teaching hospital as a model of how legal education might be developed in the future is not a new idea of course.  It is an interesting question as to how far out of reach it is.  Indeed in some ways the development bespoke LPC programs could be seen as a stepping stone toward such a model.  Similarly, the Bar, in particular, might benefit from this model, given its concerns about the number and funding of pupillages and BPTC places.

The bespoke LPC model shows how traditional universities may again be being outflanked by commercial providers. There are real problems with this: the commercial providers have shown little inclination to engage in serious research, whether of practical or intellectual import.  The academy and the professions have a mutual interest in such research.  Yet even where universities, especially in the United States, have sought to develop strong clinical models they have not tended to generate much first rate research which improves knowledge about legal services improves actual practice (honourable exceptions aside).  To me, that is one prize the review should be seeking, professional legal education firmly founded on evidence of what works; and an undergraduate curriculum where there is a deeper, richer and more meaningful understanding of the role of lawyers and law in society and the economy. There are significant problems with the kind of commercial relationships that Susskind envisages; they may also be inevitable – that needs some serious thought.

The final point of Susskind’s is about the need for the Legal Education And Training Review not being seen as a one-off event.  There needs to be, he says, some kind of process of ongoing review.  What that means is not clear; but in broad terms I could nto agree more. What struck me at the inception of the Review was the impossibility of its task. The regulators cannot expect a one-off Review to address systematic lack of evidence about professions, professional services and legal education going back years. Nor can it expect a review to address the significantly different needs, priorities and assumptions of different constituencies as a one-off.  Similarly, the process of genuine change, change which crucially needs to be properly informed by evidence, cannot lead to a significantly improved system if that process is not seen as a significant task in and of itself.  You do not improve the World by pretending to know answers to questions to which you do not know the answers.

I am going to argue that the problems we are seeing come out of our failure to examine fully two forces.

One ancient, the other more modern.

The ancient idea is that of the zealous advocate.  That idea was designed for courts but is now most often applied for the benefit of boardrooms.  And the second is the modern force of increasingly visible, commercialisation of law.  Together, they may sometimes pose significant risks to the legitimacy of the professions and the fair working of our justice system.

At the heart of a debate about conflicts is the role of the lawyer.  The classic view is that the Lawyer is a zealous advocate for their client’s interests.  He weaves an armour of words, stronger than steel, for his clients.  He defends their rights against the oppression of the powerful, particularly the power of the State.

But I also want to remind us that the same zeal, inspite – or perhaps because of – its noble origins can lead us to  a more South Park view of the lawyer.  Professor John Yoo derided for his authorship of the Torture Memos in George W Bush’s Whitehouse.

Here zealous advocates are not noble defenders of the oppressed but take advantage of law’s ambiguity.  They provide legal cover for ignoble, even illegal acts and they do it for the powerful.  Here, it does not matter whether an act is right, or lawful; it only matters whether a lawyer has advised their client that something might be lawful.  That provides the client with legal cover.

In those circumstances, the client speaks loudly and clearly, I was advised by my lawyer I could do it. And importantly, both lawyer and client are, if we are not careful, absolved of responsibility.  The lawyer is just zealous representing their client.  The client is behaving in accordance with advice.

To those of you not thinking of Lord Goldsmith and wondering if this really is a problem, let me show you some evidence from what the public think about lawyers.  Populus did a poll for Which recently which showed what the public thought of various professions and occupations.

Lawyers did not shine.

69% of the public thought lawyers were properly trained.  A reasonable if not stellar result when compared against other professions. Only 21% thought they acted in the best interests of the client.  And 20% thought lawyers acted ethically.  Similarly, whilst 35% trusted lawyers to act in their best interests, 30% did not.

We can, temporarily at least, comfort ourselves that this is better than bankers and journalists (and builders, politicians  and estate agents).

We should also step back a little from these results and treat them with some caution  by asking why the results are as they are.

I suspect a lot of this stems from public attitudes to the criminal justice system and lawyer’s roles within that system in particular.

Take the example of Levi Bellfield, Millie Dowler’s killer, and his counsel, Mr Jeffrey Samuels QC.  Mr Samuels took a good deal of criticism for his cross-examining of Mille Dowler’s father.  A lot of the criticism can be deflected by a better understanding of the defence advocate’s role.

[A]n advocate, in the discharge of his duty, knows but one person in the world, and that person is his client. To save the client by all means and expedients, and at all hazards and costs to other persons, and among them, himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

Lord Brougham, 1820

The classic quote comes from Henry Brougham as he defended Queen Caroline whilst the King and Parliament sought to strip her of the Crown.

Those ideas continue to influence the wording of the Bar’s Code of Conduct to this day.  It contains a strongly, indeed, eloquently worded, defence of the client’s interests.  The Barrister:

must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (including any colleague, professional client or other intermediary…)

It is also important to note that zeal for the client is subject to limits, in prohibitions within the Code on engaging in conduct that is dishonest or otherwise discreditable or prejudicial to the administration of justice; or likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. These limits are less vigorously expressed perhaps, but there all the same.  Nor, of course, can an advocate knowingly or recklessly mislead the court

There are some problems with the way the Code is expressed perhaps.

Whilst public administration of justice and the like is paramount, it is also expressed in the negative; do not transgress and you can remain fearless, but that rather begs the question – what is a transgression?  When is zeal for the client too fearless?

Now for any barristers becoming anxious at an impending attack, they can relax, my main interest today is in what happens outside of courtrooms.

We have seen a number of high profile problems: Hackgate, Nightjack, Standard Chartered Bank and Hillsborough.  These problems draw attention to three things, I think.

• One is that the professional rules generally do not address in detail the ethical problems of lawyers outside of the courtroom, particularly when around the Boardroom.
• The second is that elite firms and in-house counsel have been heavily involved, showing ethics is not solely a problem for one man bands in backstreet offices.
• The third is that at the heart of these concerns is the possibility that the ethic of client loyalty, of client zeal, has become too strong.

Lord Hunt in his report on professional regulation gave a clear statement of the culture he expected to see in many firms when he said, ‘client first was bred into me’.  Well it may be time to consider how and in what circumstances client first has been in-bred a little too much.

Why might zeal have become too strong?

The profession has always been a competitive place.  But now the scaling of those heights is more visible and it is more explicitly measured.  And it is measured principally in terms of money.

Profit per equity partner, revenue, size are what counts externally in league tables. Professional status is increasingly measured internally and externally in terms of money.  Internally, hours recorded and bills recovered are indirectly or directly linked to promotion and pay.

These are coupled to hourly rates that drive lawyers to do as much as possible for clients.  The economics drive zeal, where a client is willing to pay.  There is also an increasingly vigorous battle of reputation which involves who can be seen as the most client facing or business focused.

Often the latter is  a good thing. Lawyers have sometimes neglected client interests in the past and lacked commercial insight.  But business focus can also lead to corporate clients looking for things like “the most creative approach to legal risk”, which can be a much more double-edged sword.

Let me try and show you what I mean by way of some examples.  These are simplified stories culled from recent events.  Because they are simplified and also we have often not heard both sides of these stories, I am not going to name the firms or lawyers involved, although I have discussed many of them elsewhere in my blog, but suffice it to say they do not derive from the backstreet firms thought to be the main generators of ethical problems for the legal profession. They derive from the trusted elites.

The first example

You act for a large corporation.

A client asks you to investigate wrongdoing of kind X.  Your investigation reveals wrongdoing of a slightly different kind, Y.  You speak to your client contact who says that is not the kind of wrong doing you are interested in.

You write a letter saying there is no wrongdoing of kind X. You do not mention Y.  Your client later says you have investigated wrongdoing and exonerated them.  What do you do?  Should you have dealt with the matter differently?

Example 2.  Your client appears before a Parliamentary Inquiry.  That client denies wrongdoing which you know they are guilty of.  They appear to perjure themselves.  If it was a court and you were representing them, you should clearly cease to act.  What should you do?

Example 3.  You act for a large corporation who wants to engage in off balance sheet accounting.  It may or may not be lawful under accounting rules.  They ask you to give an Opinion which will help them make the case it is lawful.  You can give a helpful opinion that is competent and correct.  It raises a suspicion that it may lead to accounting fraud, but you do not know it will.

Should you give the opinion?

Example 4.  Your client is wants to hurry through transactions which may be in breach of US money laundering and regulations.

You advise that these transactions probably are in breach of the regulations.  Should you also advise the client on how to handle the transactions so that the regulator does not scrutinise them?

Should you advise them how to structure them so competitor banks may handle those transactions and so be more likely to take the regulatory risk?

What do we learn from these examples?

They are simplifications.  The case for the prosecution, if you like but I think we learn three generalizable things.

Not uncommonly lawyers have gatekeeper functions. Their advice is used to justify actions to others (we investigated, the transaction is of a permitted kind).  Lawyers ethical duties to people other than the client in these situations is uncertain.

Even where they do not have such functions, lawyers may act to subvert the purpose of law by arguing something is legal which is probably, even almost definitely, not.  Any lawyerly nuance is lost once the opinion is given, or the accounts are filed, or torture authorised.

There are also sometimes (often?) problems with who the client is or what is in their interests.  So in the Hillsborough case, when police statements were amended to remove evidence of management failure – was the solicitor acting in the best interests of their client South Yorkshire Police, or their client’s management – the Senior Police Officers who, it so happens, were telling them what to do?  In the short term the answer is probably both.  In the longer term, the conflict is clearer.

In all of these situations, there is an argument that the lawyers were simply zealously representing their client’s interest.  There is an argument that that is their job, and that they should not be criticised for doing so.

What they are doing is taking any potential ambiguity in the law, any opportunity in the process, and turning it to their client’s advantage.  The ethical rules may fail to deal with the problem, or are not enforced, and the predominant culture of ‘client first’ holds sway.

That is why I say we should not comfort ourselves with the idea that these are actions taken by bad men.  It may be that they are taking the actions that economic, professional and cultural forces dictate.  It may be that what we are seeing in these cases is normal.

I would end by urging you to watch Lord Justice Leveson’s cross examination of Alistair Brett, former in-house lawyer for the Times (http://www.levesoninquiry.org.uk/hearing/2012-03-15pm/).  What for me is most apparent from this encounter is how normal is the pressure to protect the client with all resources at one’s disposal.  How easily we can see a lawyer in a difficult situation make decisions which are informed by the client’s interest not the public interest in the administration of justice.

Arguments can be marshalled for clients and are rarely subject to the scrutiny they faced there.  It shows how easy it can be for the client first attitude to morph into something much more dangerous.  That this approach is the wrong approach is suggested by one crucial piece of guidance in the Solicitors Code of Conduct.

Where two or more Principles come into conflict the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice.

These conflicts are real and we need to pay attention to them.

*This is a talk given to mark the launch of the UCL Journal of Law and Jurisprudence

Only 20% of the general public associated lawyers with the phrase “act ethically”. The figures for doctors and nurses were 49% and teachers 33%. Engineers were on a par with lawyers but accountants (15%) civil servants (17%), bankers (6%), journalists (6%), estate agents (7%) and politicians (7%). It would be interesting to know in more detail what drives these figures. It is perhaps unsurprising that the public do not associate “ethics” with engineers: relatively few ethical controversies centre on them, but with lawyers?  Should we be concerned?

The low figure for lawyers is underlined by another finding. Consumers were asked to what extent they trust or do not trust each of the following professions “to act in their best interest”. By subtracting the proportion who don’t trust a particular group from those who do trust we can calculate a net level of trust in the general population.

Nurses score highly in trusts over 78%. Doctors 74% followed by teachers 62% and engineers 50%. The lawyers the figure is only 5%: 35% of the general public trusted lawyer stacked in their best interest 50% did not. Accountants the figure is only 1% and then we head into negative territory. Civil servants, -2%; builders -16%; estate agents -40%; bankers -54%; journalists -60%; and politicians -65%.

So lawyers tend to do better than accountants, civil servants, builders, bankers, estate agents, journalists and politicians but levels of trust are very low if these figures are correct. The sample is large and random so we can assume they represent a decent snapshot of public views. The interesting question is what is meant by the figures and why they are so low. Most public understandings of lawyers will come filtered through a lens either of understandings about the criminal justice system or more direct contact with lawyers (often through conveyancers in particular). Thus the figures may be influenced by a perception that criminal defence lawyers spend their time trying to get clients off on a technicality and that conveyancers spend their time not properly advancing property transactions. There is an alternative explanation which is that those at the top of the list  are all ‘caring’ professions and public servants paid salaries by the state (although this is increasingly less true for many doctors).  Lawyers are businesses in a way that doctors are not (or a re not perceived to be).

Further work is needed to understand what lies beneath these figures.  Public scepticism makes it harder for lawyer to fight the political battles around legal aid and access to justice.  It also makes it harder for clients to walk through the door.

That one-sidedness to the debate might have felt like a disadvantage but it wasn’t. We got a more nuanced discussion.  It was free of the need to deal with more basic issues presented by the it ain’t broke so don’t fix it brigade.  And it allowed some of the more important problems with new thinking to surface.

Nevertheless, I left with a somewhat abiding sense that something was missing. Most of the discussion focused on the doing more for less debate; the (inevitable?) decline of equity partnerships as the signature business model of the legal profession; and, the inexorable rise of fixed fees as the standard model of charging for all but the most bespoke of legal services.  I am broadly persuaded that these things are going to happen, but for me they do pose a number of issues which are not really addressed yet.  What might they be?

One is that fixed fees are not a magic bullet. They do not necessarily align client and lawyer incentives and they do have specific problems (most notably a risk that corners will be cut).  What fixed fees do is allow greater competition, and they release firms and their employees from some ethical and management problems (of the ‘all we need to do to stay afloat is more hours’ nature).  That is almost certainly a good thing, but for the system to evolve successfully requires firms and others to get a clearer grasp on quality. Not that quality problems didn’t exist before fixed fees, just that some problems are exacerbated.  Where the choice is between keeping a fixed fee case to an average cost profile and taking a step which (say) there has a 50:50 chance of helping the client’s case, lawyers will see those choices as less favourable to the client and themselves (50:50 will look and feel like 20:80).  Economic incentives build in biases, and those subject to them may not always be aware of them.  I’d like to see evidence of how that is going to be tackled.

A second problem is a comment on the main state the debate is at. This is what change managers would, I think, refer to the burning bridge phase.  The Innovators have an interest in talking the fire up and saying the system is broken because it attracts clients attention (especially General Counsel).  Most in the profession don’t believe them, or won’t admit it, so the debate tends to focus on whether the bridge is burning.  But in many ways saying fixed fees are coming; that the partnership model is a busted flush (see Stephen Mayson’s excellent blog here); or, that PEP is an insidious way to value legal businesses are not really the issues of most interest. Sure, firms need to be thinking about these, and it is possible that the crank Uncles are right and these arguments are given more potency than they deserve by recessional impacts on legal services, but ultimately these are just the issues that the legal services market has to jump over as it makes its way off the burning bridge. It’s what comes next that is really interesting.

So far, the lessons that are emerging around the ‘what next’ question are rather process driven and clouded by, I think, the cultural baggage of current models. So doing more for less, means doing more or less the same thing but with a better understanding of client’s needs and priorities, being more ‘commercial’, ‘adding value’ and the like.  Whilst I do not like the opacity of the language, and can see some situations where being too commercial or value driven could be dangerous, I do not have a fundamental problem with the underlying ideas.  The issue though is once competition does its work, and process has been driven towards a more optimal approach, where does it lead us?

That’s not an easy question to answer. I do think there is one clue in Riverview’s definition of its own innovation. That is, they emphasise “measurement” as an aid to client relations and service.  There’s an interesting piece of research that comes to mind every time I hear this which is essentially along these lines: Firm X used to draft bond documents. It used to litigate bond documents. And it never used the information from the litigation to update and improve the quality of its bond documents.  That’s a missed opportunity, unless one sees that the incentives of current practice models make the approach profitable from the point of view of the firm, but not of course from the client.  Measurement of the ‘effectiveness’ of contracts might drive their actual improvement in terms of their influence on behaviour for the client. At the moment that influence is rather assumed.  Lawyers think, we have a rule for that, rather than, we have a rule for that that works. Understanding whether rules influence behaviour as hoped takes a lot of skills and information which most firms do not yet have. It also requires, or at least benefits from, scale.

This leads onto my third point. What is the intellectual capital of a firm?  At the moment that capital resides principally in the staff, and equity partners in particular.  Know-how is charismatic and experiential: clients are persuaded that Partner Y is the best by dint of their charisma, experience and perceived competence.  Perceived competence is related to actual competence, but it is not, I would venture, anything close to a perfect match.  Firm cultures, systems and staffing generally can provide institutional capital (and improve service), but the basic model is social.

Innovation may lead us somewhere else.  It may lead us towards a more scientific model of expertise, where big data mining and management facilities greatly enhance the institutional skills and memory of the firms. This is clearly happening in some firms, driven by scale, and large institutional clients who take more persuading about both core and marginal quality claims.  This is probably the real battleground for legal service providers in years to come, at least in any business where they are trying to predict or influence the behaviour of opponents or employees or customers or suppliers.

Even this though is essentially process engineering. True it is process engineering which depends less on the received wisdom of rules and seeks to understand the actual wisdom of rules.  It is, I like to think, a more socially, economically and psychologically rich understanding of law which helps improve such processes.  Yet, the really interesting question is, at what point and how does such process engineering lead to radical redesigns of the institutional frameworks?  Contracts might cease to look like contracts. Volume dispute resolution will almost certainly cease to look like litigation, or its shadows, negotiation and mediation.  Precedent production my cease to be a feature of individual appeals.  Law, then, may not look quite like law looks now.  This is not about automation or artificial intelligence necessarily, although both may play a role, but about lawyers re-engineering the process.  We can see signs of it already; some exciting, some concerning.  Claimant capture; what I call private Ombudsman and other developments.  All this require different kinds of expertise, experimentation and investment. It requires some tolerance of failure, but also scepticism about the claimed benefits of innovation too.  Not everything is good simply because it is new and the market appears to like it.  Nor is anything that challenges received wisdom bad.  We need to be both wide-eyed and sceptical at the same time; most of all we need to be better informed about innovation. We cannot do it.  But also we can.  Not yet, though; first we must attend to the burning bridge.

I think, not unusually I suspect, immediately of Nelson Mandela but Baroness Deech turns to Lords Hoffmann and Steyn, Sydney Kentridge or Edwin Cameron, as “names that bring credit to S. African legal education.”  Fair enough.  It is a great, although entirely white, list.  Shortly thereafter she writes this passage, “The courageous defence of the rule of law is almost synonymous with S. African lawyers [I note in passing the "almost"].  Those who defended Mandela and his colleagues, not with violence but with legal skill, are the ones who still today symbolise the peaceful resolution of the world’s great international law problems.”

No mention is made of Mandela’s legal career (he used to run free clinics for black South Africans) and the words “not with violence” send out – I think- a clear message of reproach.  I may be wrong, and would be interested in other peoples’ thoughts, particularly Baroness Deech’s herself, but this seems to me a questionable thing for a Chairwoman of the Bar Standards Board to do. Of course there is a debate to be had about the use of force against repressive political regimes (even where violence is directed at property not people); but in a speech supposedly celebrating legal education and South African legal education in particular is it really appropriate to speak of one of the greatest political figures of our lifetime in this way?  Most pertinently is it a speech that should be disseminated on the Bar Standards Board website?

I have my doubts.  What do others think?

With insurer reportedly not making money on actual premiums for some time, and investment income dropping (a feature traditionally strongly implicated in premium hikes), insurers have cast around for alternative sources of income: referral fees from credit hire, claims managers and solicitors firms being examples.  Those costs are shifted onto opposing insurers who, slowly or quickly, learn to do the same.  In a process of not so creative destruction, the system is eating itself.  Whilst some consumers find it easier to make certain types of claim and get things like replacement cars; all consumers premiums are affected and the legitimacy of the whole system begins to crumble.

The insurers seek to blame the credit hire companies and the credit hire companies seek to blame the insurers.  The OFT reference can be read here. The complexity of the causes is acknowledged but the clear implication of para. 2.9 is that at the heart of the causes lies referral fees paid to insurers of no-fault drivers (some, it seems, even get a referral fee for paint sprayed on repaired cars).  One has to raise big questions about the role of the ABI in this process. They have sponsored a narrative of compensation culture for many years; captured both the politicians and the mainstream media in the process – and yet their members are a significant part of the problem.  If the OFT analysis is correct it appears those members are driving the main problems.

There may yet be a claim that referral fees are a necessary evil; the best approach to regulating the failings of insurance companies.  Both lawyers and credit hire companies make similar points.  The argument is that referral fees are necessary to ensure insurance companies to encourage policy holders to make claims when they are not at fault in accidents.  It’s an interesting argument.  Essentially, the claim is insurance companies do not properly look after their customer and referral fees incentivise them to do it better.  The question is whether there is a better and cheaper way of getting the insurance companies to behave appropriately.  It should be noted that OFT has now put a price on that – through increased credit hire costs for example.  If their estimate is right, up to £225m could be spent to improve thing if inflated costs can be similarly reduced.  Life is never that simple but it is an indication both that things have gone badly wrong and that there is considerable room for better regulation of the insurance industry which would reduce costs, benefit consumers and – crucially – better protect the public interest.  The idea that the process drives spurious claims, something which should be properly and independently investigated by a body more disinterested than the ABI, could also finally be properly tested.

And if it sounds familiar it is because it is familiar.  One line taken on the banking scandals is that ‘inability’ to charge for current accounts incentivises Banks to miss-sell to their consumer and to build self-serving complexity into the system.  Only now is that miss-selling being seen for what it probably is: industrial, institutionalised fraud.  It is an (apparently) widespread corruption of ethics in corporate life.  We do not yet know if things are as bad in insurance but they may be.  Insurers claim they cannot charge profitable premiums so increase those premiums through the backdoor then complain about the costs the process generates.  Through the economic incentives they offer, they implicate others, including lawyers, and they have been signally successful in organising and managing the shifting of blame.  They are not the only cause, all participants are trapped to a degree by the logic of the market, but they appear to have the biggest questions to answer.  And they have committed the cardinal sin of minimising their own role in the process by shifting the blame elsewhere.