Are lawyers helping clients make spurious diplomatic immunity claims?

News that Boris Becker has claimed diplomatic immunity in bankruptcy proceedings – https://www.ft.com/content/551ce878-70b4-11e8-92d3-6c13e5c92914 – prompts an interesting observation from well known lawyer Mark Stephens:

This is “absolutely being used as a tactic…. If you commit a crime or are party to serious civil litigation, it’s a good idea to claim you’re a diplomat. You can go down and buy investor passports or diplomatic posts from all kinds of islands and investor locations. So you have billionaires and influential people going to these locations and buying themselves diplomatic immunity.”

The comment suggests to me that lawyers may be advising their clients to buy and assert diplomatic status where they have no plausible claim to it.

To be clear Mark does not explicitly implicate lawyers, but they would be one obvious source of such advice. He goes on to say the tactic is, “morally repugnant behaviour that, while legally permissible, runs against the very notions of fair play that we expect of diplomats.” To my mind, if it does involve lawyers, they risk breaches of professional conduct rules (one cannot assert a claim on behalf of a client to which is unfounded). Legal permissability must also be doubted (perverting the course of justice again anyone?). The moral repugnance comment also applies to the ‘diplomats’ professional enablers, with the potential to implicate professional integrity.

Time for those involved to take a cold, post match shower.

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BSB vs SRA on professional education: the merits of regulating providers

The Bar Standard Board’s training and education plans may provide an example of what the SRA loses by putting all its regulatory money on the regulation of competence through outcomes (and the markets that will swirl around such provision). In brute terms, the SRA professes only to regulate solicitor outcomes and leaves providers to decide how to do that. The means of control is the discipline of central assessment. Educationalists complain that you cannot assess everything and so something, something considerable perhaps is lost.

The BSB’s more measured, incremental reforms contain some welcome steps (including ethics assessment after practice-based experience). Also, whilst seeking to increase the flexibility what and how providers can provide authorised training, including the potential to split the BPTC and changes to pupillage, they nonetheless propose mandatory requirements on providers which include a very interesting section on diversity (para 46 onwards). BPTC and pupillage providers must demonstrate the following to be authorised:

46.1 Commitment to Equality and Diversity at organisational level, including a specific strategic commitment to –

  • increasing diversity at the Bar;
  • taking active steps to change the public perception of the Bar as an elitist profession, for example through public outreach events.

46.2.     A clear strategy as to how the components(s) and/or pathway provided will be made accessible and how prospective barristers will be able to complete their education and training and achieve the best outcome that they are capable of, enabling them to demonstrate the Competences to at least the Threshold Standard.

46.3.     A set of targeted policies and procedures flowing from that strategy relating to access, retention, attainment and progression, including –

  • to encourage those who are currently under-represented at the Bar to consider it as a career for example by the provision of information, guidance and advice, outreach activities in schools and the wider community;
  • policies promoting open and fair recruitment; aiming to address traditional biases including through flexible approaches to considering prior learning and experience; selection processes that seek to eliminate bias around aspects such as socio-economic background; taking into account external constraints on international applicants such as visas and immigration;
  • how prospective barristers will be supported to enable them to engage with, reflect on and complete their Bar training (for example feedback mechanisms, support and mentoring);
  • how the education and training enables prospective barristers to progress to and from pupillage or other forms of work-based learning and to the legal profession, the workplace or further study (for example a clear indication of what Competences they will have achieved during and on completion of each component, and what routes are then available to them).

46.4.     Periodic evaluation of this strategic approach and the effectiveness of the policies and procedures using quantifiable measures and data analysis.

The SRA have surrendered the ability to introduce such requirements, hoping (I think forlornly) that information, markets and lower costs courses (if they materialise) will do the diversity work for them. It is a minimalistic, simple approach to regulating an issue which is both complicated and entrenched. I don’t think it will work. The BSB’s approach may not work either, and much will depend on how vigorously the mandatory requirements are interpreted and developed. At first blush, though, they stand a stronger chance of success, and if the BSB continues to focus on the issue and work out how to make progress with providers the chances of success increase.  The SRA will face the question, after the big bang and (importantly) years of waiting to see if it works – then what? And in the meantime? A policy lever is surrendered by shifting regulation so dominated by central assessment.

 

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ODR justice audit – a link to Roger Smith’s blog

I wrote a quick post for Roger’s Smith’s blog on access to justice and technology. Roger is trying to stimulate a debate on how to monitor the success, or otherwise, of online justice programmes. His blog is great – for anyone interested in access to justice and legal innovation – it has an eye on the global. It mixes healthy positivity with salutary realism. To see both together is rare.

Anyway here is the link to my post, but you should also read the linked blogpost that kicked it off.

 

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SQE – @legalcheek conference talk

Here is the text of my talk from Legal Cheek conference today…

I’ve got ten minutes and five points, so I am going to be quick and not very nuanced.

Point 1. A lesson from history

I did the Law Society Finals. We spent a year learning very dry bits and pieces of law and process; as much as we could manage before we were tested to destruction.

And we learnt to pass. Although interestingly plenty did not pass. It was disturbingly random in who actually passed and failed among my friends. And I can point to some very successful lawyers who did not pass the LSF first time.

The course was laughably dull. Utterly uninspiring. Without a single moment of professional growth. If cynicism was the key ingredient of practice in law, it got us ready.

But it was a uniform test. And providers pass rates were published. Interestingly the College of Law had a somewhat poorer pass rate, but was the destination of choice for many students because (they thought) law firms preferred it.

That’s my short take on point 2, which is…

Why league tables won’t work

Any league table will be measuring both the students (who come with differing levels of ability, not evenly distributed amongst providers), courses, crammers, and work experience. Is a league table measuring the performance of the kinds of students university A gets? Or the kind of education University B gives? Or the impact of SQE provider X? Or Crammer Y. Or the work experience that they have had in Firms A, B, C or D.

My educated guess is that it is practice, practice, practice that will make the most difference. He who pays will win.

Point 3 SQE focuses on the wrong problem (consistency) and looks like it will duck the real problem (day 1 competence)

The SRA case is that concerningly inconsistent assessment on the LPC and LLB delivers ridiculously consistent performance on entry (close to 100% completion of training contracts). The very visible inconsistency early in the process worries them more than the absurd consistency at the end.

I don’t want to trivialise the SRA’s concerns about consistency, but I worry about competence more than I worry about LLB scores. Almost every study that has looked seriously at lawyer competence finds significant levels of incompetence problems. These studies span all kinds of work: high street to Magic Circle.

What lies behind that problem? Is it supervision and training in law firms or assessment in law schools? A genuine, if slightly leading, question. If we make the reasonable assumption that work based learning is a, if not the or the only, significant problem, the SRA proposals are weak. Work-based learning is regulated less – there is more flexibility and no attempt to raise the standards or horizons of training contract. The SRA have absolutely no idea how uniform outcomes from the training contract are. This is the problem they should be concerned with. Assuring Day One qualification is the goal but they are coy about testing on qualification.

It may be though that SQE2 can ameliorate this problem. If SQE is sat at the end of a period of QWE, or really does need to be sat at the end of the period, as the SRA hopes, then it may test something important. Yet there is quite a lot of demand for SQE2 to be passed pre-QWE for the convenience of firms and not for training and development reasons. This shows you what’s important; work planning is more than competence and training (and suggests I am right to think that the problem is work-based learning not college based marking).

Point 4 is that there are some positives both to the form of assessment and the skills elements in the SQE.

Law schools will take MCTs more seriously as a, but not the, form of assessment. And that is a good thing insofar as law schools will benefit from a proper debate on assessment which looks at MCTs and other methods.

But the emerging curriculum on knowledge provides a depressingly deconstructed view of the lawyer. It portrays and assesses lawyers as mechanical, not creative or critical thinkers, and does not lay the ground for a deep understanding of law or problem-solving in law.

The assessment requirements will be worked on but right now they seem rather incoherent and atomistic. They read like bits of the LPC and bits of the degree squashed together by committee.

And in truth the assessment is a massive gamble. The work on setting the right level and testing consistent pass-fail levels is important but it is not what is most important.

The SRA can get the test reasonably consistent on a pass-fail basis; but not at an any more gradated level. And they do not know whether the assessment will really deliver on what is important. Are the right knowledge and skills, let’s forget about attitudes, assessed well?

I wonder too at how this approach will impact on students as life-long learners. That is what we should want from professionals. Curiosity, self-improvement, ultimately – later on- vision and leadership – are the values we should be inspiring through courses and assessments.  I see no incentive on SQE oriented providers to take that seriously coming from the SRA. Perhaps the market for SQE courses will drive it. We will see.

Similarly, the Alpha Plus report points out that the SQE will not test higher level professional skills. The ability to initiate and carry out projects; or to generate new insights or propose new hypotheses Is not assessed. Maybe lawyers don’t need to do this. May be routine mechanical type thinking on problems, is all that is needed.

I am reasonably confident that more purposeful, project type working, better critical thinking skills, and more creativity, are really important to legal services providers in all markets. The SQE walks us away from that not towards it.

And more generally, law schools shaping their curricula towards SQE1 or 2 are squeezing out not injecting more creativity, depth or insight in law degrees. And of course electives are getting squeezed out at the equivalent of LPC, now to be Masters stage, if there is to be one.

On the plus side though, I think SQE facing law schools are taking clinical education more seriously – and this is one area where I think the SQE will drive some improvement. Law schools will move away from clinics as interesting experience for student CVs towards clinics being stronger engines of education, as well as trying to claim QWE from it. Turning on the clinical education engine is a demanding job but a worthwhile one.

Let me end with a couple of suggestions:

  1. The SRA need to get ready, and fund, cohort studies of students passing through the system post 20 whenever. They need to look seriously at the impact on career trajectories, diversity, and the relationships between different pathways and career success.
  2. They want a cooperative and evidence-based approach to evolving the assessment. Well good. This is a subject that deserves a respectful and more honest debate than it has engendered hitherto. There is fault on all sides for the quality of that debate. The academy is sometimes intransigent and imperious, the SRA has sometimes behaved very cynically. But it is up to the SRA to set the tone.
  3. If I were them I’d start by signalling phased introduction of the assessments. Testing them properly. And starting with the bit that has the most potential to do some good: SQE2. Only if SQE2 really needs good quality work-based education to get people to standard; and if it really tests the skills of students to be practice-ready on qualification will SQE have done anything of value. Do that first. Show us it works. Then you have a case. And you will have made worthwhile progress. And incidentally, they will be in a better position to judge who important inconsistency in LPC marking really is. The SRA should chase the real prize of competence on admission first; and not concern themselves with consistency pre-QWE.
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Irresponsible by Design – NDAs as an example and how SRA ‘investigates’

Watching the Women and Equalities Select Committee evidence this week on NDAs (see here) a couple of thoughts struck me which may be worth mentioning.

Firstly, the evidence of the City partner portrayed an interesting, common attitude among lawyers. The point the Committee was dealing with was that NDA’s often/sometimes are casually/deliberately opaque about the rights of the subject of the NDA; in particular, how public interest disclosures are permitted under the agreement. I would say, some of these NDA’s are irresponsible by design.

The line taken, which was meant as a helpful suggestion, was that someone else ought to provide guidance to complainants, perhaps on a website somewhere, as to what these opaque or deliberately one-sided agreements really meant. It is tempting to add here, that this help should be given on a website, far far away. A second suggestion was that perhaps the regulators, the Law Society, specialist interest groups, or similar, could get together to tell the lawyers what kinds of agreements were acceptable.

Neither of these are terrible suggestions, but they seek to solve a problem rather removed from the origin of that problem and they miss the fundamental point that it is the lawyer who is responsible for the drafting of their own agreement. It is the lawyer who has to make sure that their agreements are lawful and does not take advantage of their opponent. It could very well be the lawyer who is held criminally responsible if a deliberately opaque agreement is likely to lead to the suppression of evidence.

And, in fact, it might be difficult for a regulator, or representative body, to give watertight guidance on such matters because – as lawyers are always fond of reminding us – every case is different. Each context is important. And, in any event, ultimately it is not the regulator or the representative body which interprets legality or professional misconduct, it is the Solicitors Disciplinary Tribunal or the courts. The SRA, for understandable reasons, is taking a line that says it is better that the professionals get used to taking and accepting the responsibility which is properly their own. They could take another line which is to try and regulate with much more detail. I will leave it to the reader’s own imagination as to how the lawyers would respond to that kind of detailed intervention. Ok, here’s a hint: creative compliance and lots of complaining.

The second point is that Paul Philip, CEO of the SRA, I think indicated in his evidence that any allegation about a suspect NDA which is put to them will be investigated. This is not normally how the SRA deals with complaints. As I understand it, they do not investigate every complaint that is made, even if on its face it, such a complaint may contain a well-founded allegation of misconduct. They prioritise according to the nature of the allegations and the evidence before them as well as the risk posed by the behaviour alleged. It is an interesting question as to which approach is the right one. The hearing provides some uncomfortable viewing for the SRA, particularly the admission that they did not seek a copy of the nondisclosure agreement from Allen and Overy when they met with them to discuss the Zelda Perkins case. Mr Philip properly accepted that this was an error. Such errors are likely born of a flexible approach to investigation.

 

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NDA Evidence to Select Committee

I have submitted evidence to the Commons Women and Qualities Committee. I was going to do a quick summary but Legalfutures beat me to the punch and probably did a better job of it too. Lest anyone think I am being critical of the SRA, I am not: they acted quickly and well. I do think, though, there is probably a need to go further, and to keep this issue under review.

My evidence also includes a detailed analysis of how NDAs like the Zelda Perkins might give rise to a criminal offence and why some of the evidence given to the Committee revealed a less than satisfactory understanding of professional ethics. You can read it here.

 

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NDA hearings: Perkins, Mansell and the Missing Man

I tried last night to tweet points of note from the evidence given by Zelda Perkins (complainant against Weinstein); Mark Mansell (Partner, Allen & Overy, drafter (in part at least) of the now infamous NDA; and others in the Now listening to Zelda Perkins evidence. You can watch the evidence for yourself. It’s well worth doing so, if only to watch a series of lawyers grappling with explaining their professional principles and rules. Mr Mansell will be expecting a few very uncomfortable passages to be written about him in the eventual report. I will be writing more about that in due course. For now, I am confining myself to reconstructing my tweets from last night, as I think some will find the summary of points made in the session of interest. I will make a few general points at the end. I should say I tweeted only those points that struck me as new or particularly interesting. It was not an attempt to create a comprehensive summary. Secondly, where my tweets are unclear I have sought to clarify them (although this is rare, it is not a completely verbatim reporting of my twitter stream, I have corrected obvious errors and added some text in square brackets occasionally).

First some points from Zelda Perkin’s evidence:

First point that stopped me and made my jaw drop. She saw a partner at SMB [Simons Muirhead & Burton who represented her 20 years ago in her dispute with Weinstein] initially but case was handed to a 2 year PQE to negotiate with A&O et al.

That L did an incredible job, she says, but was under as much duress as her, and out of their depth.

L was vociferous in saying the agreement was unlike any NDA they had seen and was very board. She says, L offered no suggestion that it was not enforceable

The negotiations at A&O sound rather longer than in press stories, although ZP often in a meeting room whilst her lawyer fought it out with A&O by the sound of it. Extraordinary [to me] 5pm-5am negotiation

Interesting suggestion at a number of points that ZP stiffened resolve of her lawyer considerably, e.g. they wanted to ask for £20k, she pushed them to ask for much more.

If I understand her evidence correctly, her L told [by Weinstein’s lawyers] to destroy a note of ‘almost a full admission’ by HW during negotiation?

Other stuff about the terms – forbidding them to talk to doctors, lawyers, police w/o them all signing an NDA, I’ve not focused on here, as its more or less what we’ve seen reported.

She was worried about being sued or going to jail if she broke the NDA

Next up A&O lawyer (MM) and SMB lawyer (TL) Former involved in negotiations, TL here representing her firm.

Not taking evidence on the particular case because of client confidentiality. ‘IN most cases’ the NDAs are less extensive. [Thereby discussing the case in a backhanded way. Partial waiver of LPP 😉 ? Bindmans holds a copy (why?)]

It is worth emphasising here, that this leads to MM commenting on general practice in ways which are clearly implied to be, by the Committee, and I think often by him, to be about the particular agreement under consideration. My impression is where he has things to say about the agreement which he can defend himself with he is happy to talk about the agreement under this pretence of commenting in general. And where he has nothing to say, or perhaps where he is privy to confidential information he cannot reveal, he prays in aid the defence that he cannot talk about the specific agreement. So he is able to, or forced to, depending on your perspective, speak selectively about the agreement. I don’t criticise him for this, it’s totally understandable. But it does lead to a little imbalance or a lack of clarity on some points. Let me return to the tweets of MM’s evidence…

[MM says] Not common not to give a party a copy of the NDA. Extremely rare, very very rare.

Justification offered is risk document might become public domain and so they would need to restrict the number of copies.

Does not see stopping or limiting participation in a criminal process as reasonable. Thinks can seek to prevent disclosure of confidential information that is not necessary for the process.

Seems to say can prevent voluntary disclosure. [I] Might not be understanding [his point here].

i.e. I might not be understanding the evidence there. It’s not very clear.

Can see why in theory it [an agreement of the type the Commmittee has sight of, i.e. ZP’s agreement] might be seen as perverting the course of justice. But has never done it.

Relies on a kind of lawyer boiler plate, I would always say nothing in the agreement overrides ordinary regulatory obligations, as meaning the agreement does not PtCoJ

What I take MM to mean here is that if he puts in a kind of disclaimer in the NDA, which says something along the lines of this does not reflect your regulatory obligations (which I think is the language he uses), then the agreement signals the individual can cooperate with police investigations (for instance). It’s a bit like putting in a disclaimer of personal injury liability that this does not affect your statutory rights, if you like. I’m going to tackle this approach on another day.

Chair puts it to him that he has sanctioned documents that clearly limit disclosure in cases of criminal and civil disclosure.

He’s invited to rethink the document. He restates the boilerplate argument.

He suggests SRA document [their Warning notice on NDAs] has changed the picture, the Chair says it’s stating the position as it was (i.e. he can’t claim the rules have changed).

He half concedes he would draft the terms differently to make clear there were not restrictions on their ability to speak to the authorities.

He says he can understand the [effect the] agreement will have on people like ZP

He says NDAs should not be used to cover up criminal activity. He’s then asked, so how many times have you done that? I get involved when they’ve decided not to go to the authorities[, he says].

Ahh, the costs question [How much did A&O get paid]. Maybe, I won’t get side-tracked with that.

They’re going to get that [costs info] in writing. I’m surprised he says he doesn’t know. I’d have thought he’d look it up or get briefed on it as part of his prep.

Gets all the professional principles put to him. Says essentially he’s just negotiating and that meets his obligations, he might draft it differently now although says the professional principles were broadly the same.

What’s different now is whisteblowing, regulatory obligations, and something about further disclosure which I didn’t quite catch.

Further legal advice is inhibited by the agreement we are told. That would not be a normal requirement, he says.

Would like clearer rules on NDAs.

[He is asked are] Through the night negotiations normal? On occasion parties anxious to agree something as quickly as possible or in different time zones. Otherwise not at all common.

Is it appropriate to have alleged perpetrator in the room in a negotiation? He can’t talk about this case but [otherwise?] only in a mediation. He would advise the alleged perpetrator not to be in the room.

Says he does do things to try and make sure clients take their post NDA obligations seriously.

We then switch to evidence from a partner at SMB, who was not involved in the original case. Occasionally MM also makes points worth noting.

Now to SMB, TL who is an employment lawyers. The lawyer who did this case declined to come [the missing man of this blog title]. First she knew of it was what was published in the media.

Not sure how useful/interesting this is going to be [given she was not involved in the case]. But am listening to it [in fact I only make a few comments…].

She can’t really ‘not comment on the actual document’ in the way A&O could ‘not comment’ on it. She does say the inability to keep a copy wholly exceptional. Sounds like she’s never seen it to me. Would say she should not sign it, and unethical

MM says he only acted for HW/Miramax once on this case. Quite important that [because it would support a view that A&O would not know HW had a series of cases like this; also why did Miramax or HW change thir lawyrs on such cases – if that is what they did?]

He can’t remember where the language in the document (that he won’t talk about) came from [the implication which is not directly addressed is that Miramax, HW, or his US lawyers may have suggested the wording]

[MM asked, ]Should lawyers write agreements in ways ordinary people can understand them? Yes, is the answer. *Imagine*

MM is asked to express regret. He sort of seems to say he does. In that cagey half apology way which we all use from time to time.

After that evidence there is evidence from Max Winthrop (Law Society Employment Law Committee I believe), Suzanne McKie QC (as an experienced practitioner dealing with claimants), Gareth Brahams (in his capacity as the Employment Law Association Chairman). I’d lost my appetite for tweeting by this stage, although there are lots of interesting things in this evidence too. Some key points which I noticed:

SM said that in 25 years she had seen respondent lawyers (plenty but not all or most was the implication) behave disgracefully. She talked of coercion and pressure, even midway through hearings.

None of these three witnesses have any experience of denying a party a copy of the NDA, which they seemed say was wholly extraordinary and in breach of their professional obligations

ELA chair was asked what the ELA was doing to raise awareness of these issues. He was stumped. Said they’d discuss at their next meeting (something he appeared to have realised he should do for the first time at that moment) and that members were free to write articles for their (newsletter? Magazine?) if they wanted to.

Two (I think) of these three witnesses wanted the CPS or the SRA to clarify the criminal law on perverting the course of justice. Perhaps they meant they’d like the CPS or the SRA to clarify their approach to interpreting the law on perverting the course of justice.

There was also a general tendency to hope the SRA would provide more guidance on what was expected of lawyers. This is a familiar point, with lawyers pleading for more regulation in times of uncertainty. They don’t really mean it I think, not deep down – they just want an excuse for not having to think for themselves about their exposure to risk, which I may return to in due course. It leads to one last point, generally, I should say that the witnesses gave very clear and reasonable evidence, it seemed to me, and the Committee probed without much grandstanding (almost none actually – which I think is to be commended given some of the Select Committee hearings I have watched). I think the professionals sometimes showed a limited understanding of their professional obligations and the law on perverting the course of justice (this may have been tactical or a response to the stress of the occasion – something I may return to too). At one point a Committee member Philip Davies crystallises the central point exposed by the evidence: Why is it, he asked, that Lawyers are very clear on one principle, the client’s interest but very unclear on the other ones – the obligation to behave with integrity, the obligation to protect the rule of law and the administration of justice, independence and so on? He gets half an answer. But only half. And I think the answer is wrong as a result. I’m going to come back to those two halves soon.

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