Brett doesn’t win on a technicality

Alistair Brett brought his appeal and the High Count found he had not deliberately misled the court, but only done so recklessly.  That’s something of an improvement, but sullied somewhat having been found to have acted without integrity.   The final words of the LCJ are also interesting (see below).  For my part, one of the fascinating things about this is that I suspect Brett knew exactly what he was doing, but thought it was all part of the ‘rules of the game’ of litigation. I also suspect he was motivated by a higher ideal: freedom of the press – an ideal of his business but not of his profession.  This kind of higher ideal problem is a common factor in ethical blunders, a point I will return to another day.

I also suspect he also thought was walking the dicey line between advocacy for one’s client and misleading with dexterity. Brett knew what he was doing, but saw it as legitimate tactics for his client rather than misleading the court.  Hence the slightly unsatisfactory conclusion that he was reckless.  He didn’t recklessly allow the court and opponent to be misled, he designed it that way.  He wanted the court and his opponent to have a belief at variance with his own.  That’s what advocacy is sometimes about and that is also what misleading someone is sometimes about.  He thought he could legitimately do so and he did it in a ‘fantastically precise’ way (to pick up on a phrase from the Leveson Inquiry).  In sum, the SRA’s finding that deliberately misled but was not dishonest is probably the better one.

The Lord Chief’s agrees with his learned colleague but the exhortation at the end of the judgment is interesting both for its general importance and for the coda they add to this tragic case:

Every lawyer must be alive to the fact that circumstances can arise during the course of any lawyer’s professional practice when matters come to his knowledge (or are obvious to him) which may have the effect of making his duty to the court his paramount duty and to act in the interests of justice. In many cases it will be clear what course the lawyer must take, either through the way in which the case is presented or by withdrawing from acting for the client. In others it may be more difficult. The lawyer may not be absolutely sure that his actions will discharge his duty to the court. In such a case, for reasons which I shall explain, a lawyer would be ill-advised if he did not put the matters before a person more senior within his firm or before independent counsel, making full and complete disclosure to such a person of all the relevant circumstances.

The reason why that is so important is that misleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession’s duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice in England and Wales and the standing of the profession depends particularly upon the discharge of the duties owed to the court.

Where an advocate or other representative or a litigator puts before the court matters which he knows not to be true or by omission leads the court to believe something he knows not to be true, then as an advocate knows of these duties, the inference will be inevitable that he has deceived the court, acted dishonestly and is not fit to be a member of any part of the legal profession.

As conduct that is dishonest, such as misleading the court with such knowledge will inevitably be, is so serious, it is of the utmost importance that in difficult circumstances which can confront any advocate or litigator, that advocate or litigator has at the forefront of his mind his duty to the court, the necessity to avoid breach of that duty and, if he has any doubt as to how to discharge that duty, by taking independent advice.

The penultimate paragraph could be headscratchingly applied to this case, though I am glad that Alistair Brett is not besmirched with a finding of dishonesty. I think he probably thought he was, or was, engaged in litigation tactics which were (close to) normal, a bit like polishing witness statements.  Perhaps his case will cause a pause for rethink amongst litigators and those who professionals who instruct him.  Whether getting protective opinions will help anyone other than the excellent professionals who get the work remains to be seen.

A final, quick point: its a shame the privilege/confidentiality issues were not properly ventilated.  The case proceeded on the assumption that there was privilege or confidentiality in the communication from the journalist in question, but the case for privilege looks very weak (and this raises a rather clear conflict of interest). Confidentiality may be more interesting.  There’s a set of considerations that are, I suspect, crucial to many in-house lawyers in particular and they need a good, hard, thoughtful look.

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Are you behaviourally challenged?

I finally got round to reading this report from John Maule on the Legal Services Board research pages.  It sells itself a little short with the title: Helping Legal Services Consumers Make Better Decisions: Methods to Identify and Respond to Legal Problems, because it also looks at professional decision making and strategic decision making. There’s an interesting section on what might make law firms bad at strategic and management decision making.  In sum, it’s a review of behavioural economic and decision-making literature that Prof Maule sees as relevant to legal services.  A rather challenging brief, but very well done to my eyes: there’s lots of interest in the report.  It brings together in one place a lot of (perhaps) increasingly familiar behavioural economics stuff, and starts the job of thinking about the implications of (for example) prospect theory in the context of legal services delivery, marketing and management.  It’s a great resource for anyone interested in the area, and got me thinking about the implications.

As one example, how do and should lawyers define and manage the expectations of their clients?  And how should they manage settlement decisions?  The behavioural economics literature suggests that clients (indeed lawyers too) may be heavily influenced by frames, heuristics, biases and the like which will nudge (pardon the knowing pun) clients in a particular direction which may, or may not, be in their interests or in accordance with their ‘real’ preferences.

Sophisticated practitioners may already be thinking about how they deliver their advice or set up their systems to manage settlement (to give on more unpleasant example, the recent scandal about banks using fake letterheads to ratchet up pressure to settle debts is, in one sense, a little behavioural experiment playing on emotional resonance and other saliences).  I had a very strong sense, when I did research on costs several years ago, that clients understood and lawyers described settlements in subtle but importantly different ways depending on the type of costs agreement they had. Some of these differences looked engineered, perhaps unconsciously, by the lawyers.   Whether they were doing this conscious of the behavioural levers they were pulling or not, I do not know.

The behavioural understandings can add an extra complication to the idea of informed consent: if a case is presented as correcting a loss, or securing a gain is likely – under the theories outlined in the report – to lead to clients having quite different risk appetite.  What kind of risk appetite should lawyers be engendering in lay clients?  There is not an obvious answer.  Lawyers who are able to match their strategies to outcomes and measure the impact of different approaches may be able to answer the question, but I suspect they are rare beasts.

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Lawyers, let us play

So, recently I did one of the most terrifying and interesting things in my life.  And in a few weeks, you can too.  It was at the incomparably excellent Lawfest, from which the enduring lesson was the power of letting go, just a little bit.  I was milling around after one of the early sessions, and it started a bit like this.

Steve: So, would you do something for me?

Me: [Non committally] Mmm-huh [sounds a bit like a yes, but may just be a groan]

Steve: Okay, great.  Thanks.  Just remember this – don’t panic. Relax. And enjoy it.

Me: Well…

Steve: [Exeunt]

A few minutes later, Steve is about to step up onto a stage, and on his way there this happens:

Steve: In one minute I’m going to ask you to come on stage to do a stand-up comedy routine about your surname.  You can prepare now.

And sure enough Steve gets up on stage, tells the audience later he is going to be giving classes in how to do stand-up comedy, tells the audience ‘we’ll’ be joined in a minute by yours truly, and launches into rather more than a minute of stand-up on his own surname. Pointers! I think as I desparately try to think of what I might say.  All those moments in the 1970s when life seemed a bit like a non-stop Grange Hill episode and I was subject to day after day of really appallingly bad comments about my somewhat unusual surname. And I am fighting off the memories of some rather poignant conversations with my newly teenage daughter afflicted my surname and the stupidity of teenage boys in the era of the internet.  I have not yet burdened her with the knowledge that as far as we can tell teenagekind didn’t actually discover certain sexaul acts and their American soubriquets – until the late 1980s, or that her grandparents were incredibly short sighted to give me a first name that when shortened and added to the surname is most aptly characterised as a sort of Benny Hill pornstar name.

It’s quite a good name for a professor, I suppose, she says wistfully when what she really wants to say is, Can I have mum’s name?

Anyway, as I am picking my way through this, I hear what appears to be a local darts compere hollering,  So welcome to the stage, Ricchhhaarrrdddd Moooooooorrrrrrr-headdddddddd.  I make my way on stage, noticing, comfortingly, that I probably won’t throw up.

The audience are whooping and clapping, they know to be nice and suddenly I see that this is, in fact, incredibly exciting. I had to get on stage, deal with a heckler (WTAF, but it turns out it relaxes the nerves slightly, gives me a moment to pause) and then think of things to say which might be, vaguely, in some way, funny, there and then, from the jumbled assortment of stories that had been assembling in my head.  Assembling in my head without any shape or story or punchlines or any of that stuff. It was utterly terrifying too, even though the audience had been worked into a situation where they desperately wanted me to succeed, you could feel them literally willing me to be funny, and occasionally they laughed (nervous tension I think) and I started to talk a bit and string a few things together. It was incredibly disjointed but I noticed my brain was firing on all cylinders, desparately looking for ways of joining the last sentence to the next one, whilst being acutely aware of the audience (friendly, perplexed) and the possibility of me saying things which were well, frankly, inappropriate.  And then I got off stage and no one died not even me, not quite and I thought: Next time, I’ll be ready.  And for the next two hours I found myself writing a routine in my head, reliving deliciously awful bits of my life I’d forgotten about.  Writing bits of a routine: incoherent, but less so than before.  Next time, it was going to be great: the innocently awful 1970s meets postmillenial decay - my parents didn’t want me to be a lawyer. They wanted me to be a joke pornstar.  And look what happened...

So, if this sounds like something you might like to try now’s your chance.  Steve Cross runs these kinds of events for academics, inspired by Lawfest, now he’s trying one with lawyers. He provides training and there’s a chance to practice and then there’s the night itself.  The atmosphere will be friendly and supportive yet still terrifying – a kind of GoApe for the mind, if you will.  No ropes, but a net of sorts…  You can sign up to do the stand-up or you can just buy a ticket and come and watch. All the details are below.

I really recommend you give it a try.  If I can be forgiven a moment of utter cheesiness, I felt totally alive, (mis)firing on all cylinders, scratching around with a mind making connections between the disparate bits of my life, oddly loved (temporarily, irrationally, not really) by a group of near strangers, and experiencing a moment of profound but futile empathy for my poor daughter.  I guarantee you’ll see yourself in a different way, for at least five minutes, and probably longer…. And if you don’t want to try this time, you can still come along, and next time you’ll fancy giving it a go.  I guarantee it, or my name’s not Buck Quickie.

Details are here.  All profit goes to the National Youth Arts Trust, who work to make the arts accessible to kids from disadvantaged backgrounds


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Thou shall (not) report…

One of my longstanding favourites in the legal services sphere Legalfutures (HT Nick H) have picked up on a comment by Vanessa Davies (Director, BSB) on my last blog pointing our Barristers have a duty to report serious misconduct.  It might be read as a bit of a hint that the BSB take the matter seriously (as they should and I would think they would) or as an invitation for further and better particulars from those able to evidence the wrongdoing alleged to be in question.  It was prompted the excellent blog of Jolyon Maugham.  It is clear that, unless matters have moved on, Jolyon has not reported the specifics of the matter to the BSB.  Jolyon says in the comments on his own blog:

I have considered my own obligations. To report the Boys would involve me breaching my duties of confidentiality to my clients (through whose instructions I see the Opinions). My assumption is that this trumps my own obligation. But I may be wrong on this. Like you I also wonder – genuinely – whether the BSB is the best tribunal to resolve these issues.

The last sentence is an interesting one.  One of my anxieties about the nature of the problem suggested by Jolyon is that it suggests patterns of wrongdoing that might require quite a wide ranging investigation over a number of cases, whereas the professions tend to concentrate on single complaints (contrary examples might be things like the miners-CFA investigations and ACS Law/Andrew Crossley investigation).  Another is how to manage the process of evidence and judgement on the legitimacy of tax opinions which will become vigorously contested.

It’s the obligation to report and it exceptions that I want to concentrate on though.   rC66 of the Bar Handbook states (in so far as relevant here):

Subject to your duty to keep the affairs of each client confidential and subject also to Rules C67 and C68, you must report to the Bar Standards Board if you have reasonable grounds to believe that there has been serious misconduct by a barrister…

rC68 removes the duty (but does not presumably preclude reporting) if

you reasonably consider it likely that the facts will have come to the attention of the Bar Standards Board” (an interesting exception as the BSB is inhibited (by its own rules, as I understand it) in when it will say a breach has come to its attention and how would one know save the unusual circumstance where someone announces they have made a complaint to the BSB; or

the person who may have committed the misconduct has self reported; or

“the events which led to you becoming aware of that other person’s serious misconduct are subject to their legal professional privilege;” or

“you become aware of such serious misconduct as a result of your work on a Bar Council advice line.”

gC96 provides a starting point for defining serious misconduct.  If a barrister believes there has been serious misconduct, they are enjoined to consider circumstances which might militate against them reporting including, “whether that person has been offered an opportunity to explain their conduct, and if not, why not.” This suggests there may sometimes be an obligation to put the concerns to the barrister in question and to consider their responses.  In broad terms, the guidance seeks to sensibly avoid barristers jumping the gun with allegations of serious misconduct (not something which is very likely, of course, but that’s not a criticism of the BSB for including such guidance).

The most interesting thing for me is that the duty to report is subject to the duty to keep information received from the client confidential or where, “the events which led to you becoming aware of that other person’s serious misconduct are subject to their legal professional privilege”.  I’m imagining that this covers the vast majority, or at least a significant amount, of information that barristers receive about other barristers where they are likely to be in a position to report serious misconduct.  I put matters that occur in open court aside, where the temptation might be to leave problems to judges.  One might hope that the client would waive confidentiality, but clearly this may not always be the case (and in the world of tax this may be a particular problem, for reasons I could guess at but not speak directly of).  The exceptions may not, in law or practice be as wide as I am imagining (I’d appreciate comments).  I’m not sure that a duty of confidentiality adheres to information that shows a fraud, for instance, even if the client is not the perpetrator of that fraud but has received some information about it.   Nevertheless commercial and professional instincts tend towards treating confidences as sacred, and an interesting question is whether this and the BSB rules are likely to inhibit the impact of a duty to report significantly.

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Wild Boys: BSB should act…?


This tax scheme is completely within the law, or you can tie me to a windmill blade

It’s quite a rarity for a practising lawyer to suggest serious unethicality on the part of his or her colleagues, so when it happens it’s worth taking notice.  Often too the allegations need to be carefully circumscribed with the ifs and buts of unadjudicated facts and speculation.  Not so this blog by Jolyon Maugham, where he has spoken out with clarity and I suspect not a little courage.  He speaks, for instance, of, “a prominent QC at the Tax Bar” who “expresses a view on the law that is so far removed from legal reality that I do not believe he can genuinely hold the view he says he has. At best he is incompetent. But at worst, he is criminally fraudulent.” And this gentleman is part of a posse of, “slightly under half a dozen names…  the Boys Who Won’t Say No”.  The existence of this group is apparently well known within the tax fraternity.

Part of Jolyon’s beef is that these barristers are unlikely to be sued by their lay clients and, if they do get sued, they are shielded from their responsibility by the Bar Mutual Fund.  The ‘boys’ pick up, “large cheques for giving advice he cannot believe to be right – and his insurance premiums rise no more than mine…. They grow rich saying yes when no one is better placed than them to know they should say no.”  He suggests consideration be given to importing US rules requiring that, “Written tax advice must not be based on unreasonable factual or legal assumptions or unreasonably rely upon representations of the client or others, and it must consider all relevant facts and law. Where written advice does not meet those standards, the practitioner would face direct financial penalties.”  It’s the type of rule which might be properly applied to any situation in which a barrister or solicitor is giving an opinion.   Enron, Lehman, the News of the World’s hacking saga all involved opinions which might have benefited from more circumspection or risk sharing between adviser and client.  Opinions are not well policed by relying on the lawyer’s obligations to the clients or current ethical rules.  David Kershaw and I argued the point in detail using Lehman as a case study.  Opinions are supposed to be neutral documents but lawyers and sophisticated clients can easily turn them towards being advocacy documents with varying degrees of subtlety and risk.  Sometimes this has disastrous results.

The Bar’s Code of Conduct is not as well set up as the SRA’s Code for transactional work (not a great race to come second in), but there cannot be much doubt that a barrister giving opinion of the sort outlined above would be breaching their core duties to act with honesty and integrity, to maintain their independence and to not behave in a way likely to diminish trust and confidence the public places in the profession.   Duties to the court, in so far as Opinions are given in the shadow of the court, and duties to act in the interests of each client may also be in doubt.  It might pretty much constitute a full set of core duty violations.  It may of course be the case that the Bar Standards Board are already investigating such complaints.  Any barrister coming across serious misconduct is obliged to report it.  We can only speculate on whether that has occurred and the Bar Standards Board will decline to tell us on the basis that such complaints must be treated as confidential. It’s not the kind of approach that fosters public confidence.  They should tell us whether the allegations are being investigated and can do so without naming names.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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