Reputational hangover does for former Dir of Legal

Interesting story in the Press Gazette about the resignation of Paul Vickers from IPSO. Evan Harris, associate director of Hacked Off, is reported as saying:

“Only newspaper corporations which care nothing about the damage done to the innocent victims of the criminal abuse in their industry, and even less about the cover-ups or codes of silence which they have been engaged in, could think it acceptable for the body which controls the budget and the rules of the press regulator to have Paul Vickers at its head

“Paul Vickers was the legal director of Trinity Mirror for all the years that the industrial-scale hacking has now been admitted to have taken place across all three of its national titles.”

The problems may stem from allegations made by David Sherborne in litigation against the Mirror (I wrote about them here) and the kinds of criticisms made by Roy Greenslade.  Executives made a series of statements about the Mirror group’s adherences to the law and the press code which Sherborne appears to have alleged are knowingly false (we should bear in mind this is a press story and it may not accurately state Sherborne’s allegations or evidence in support).  An interesting question is a) whether that’s true and b) whether they made those statements on the basis of legal advice.  Greenslade’s story makes the point that there may have also been a failure to properly investigate allegations of hacking internally

The Mirror litigation is hotting up. Whether or not there are other revelations to be made in that litigation, Mr Vickers has paid the reputational price for his legal stewardship whilst at the Mirror group.  It is a salutary reminder that decisions made by in-house lawyers can have significant career consequences.  It is also a reminder that the legal risk around allegations of corporate misconduct have frequently proved to be ticking time bombs for the businesses and their senior legal staff.

Béar growls but does not roar: the Bank of England and the remit problem

What does the Charles Béar QC opinion tell us about Lord Grabiner’s investigation for the Bank of England apart from the Bar’s increasing engagement in opinion giving as a form of public advocacy designed to heighten political pressure?

He seeks to answer two questions: was the review conducted adequately and were its terms of reference adequate?  The inherent professional tension in a lawyer answering the second question ‘independently’ for a client is apparent in his observation that :

“the general purpose of this kind of review must be to protect the reputation of the Bank and to demonstrate public accountability when serious issues are raised about its officials’ conduct.”

A number of questions can be raised in theory.  How does remit relate to independence, reputational and regulatory concerns?  What say should a lawyer have in their own terms of reference and how they might develop in the light of new facts?  And what obligations does a lawyer owe to the clients (if any) in how findings are presented even when ‘independent’?  Can  – as we have seen elsewhere –client interests shape the presentation of adverse or other findings? An implication from this Opinion might be that short term, client friendly judgments were made about terms of reference that have not (it transpires) been in the long term interest of the Bank where the view was:

 “We cannot come out of this at the back end with a shadow of doubt about the integrity of the Bank of England…”

Mr Béar makes the case that the remit of the Inquiry was inadequate in that it failed to take the approach, “recognised for cases of professional misconduct. No dishonesty or moral stigma is required but simply “serious professional misconduct”.”  His argument is a bit under articulated: “It is hard to understand why any different standard should apply to a central bank” but it is an argument of good sense (and of course some hindsight). Empirically though, I would like to know which other independent client-paid inquiries have applied this standard.  More often the remit is narrower: think of the Mirror Group and hacking, Harbottle and Lewis and hacking, Enron and financial engineering.  What we know about the Grabiner review does not raise the questions that some of these do.

The main bone of contention exercising Jesse Norman MP (who instructed Mr Béar) is whether Lord Grabiner’s findings of fact justified the conclusions that were drawn about them. Given the source of his instructions it is interesting that little if any blood is drawn here.  Adverse findings were not made in relation to a conversation  which, “Lord Grabiner describes this as ‘an event of importance’” whereby a somewhat confusing discussion about manipulation takes place.

“…The trader agreed “absolutely” when Mr Mallett described this as “market manipulation”.

“[yet when] Mr Mallett suggested that the banks were manipulating the market through the brokers said “It’s not that, they’re just trying to build a book”. The denial here is ambiguous and might relate either to manipulation via the brokers or manipulation altogether.

[As a result]

19.7 Lord Grabiner found that the trader was unclear and that neither Mr Mallett nor his deputy understood what they were being told. On that basis he declined to criticise them….

The basis is essentially there is ambiguity and Lord Grabiner gives Mallett the benefit of the doubt. In analyzing whether Grabiner was entitled to come to that conclusion and, “whether, in reaching that conclusion, Lord Grabiner left out of account any relevant information, or demonstrably misunderstood any part of the evidence.”:

23 These are very low tests and they have been satisfied. In order to discharge his terms of reference, it was sufficient for Lord Grabiner to analyse the conversation of October 2011 and decide whether he could be sure that Mr Mallett must have interpreted it as a communication of some market malpractice. Lord Grabiner subjected that conversation to detailed analysis and decided that, giving the Bank the benefit of the doubt, it had not been understood in that way. He asked himself the right question and answered it in accordance with evidence which had been presented to him and as to which there was no irrefutably contradictory material. It follows that tests (i) and (ii) above are met.

One can pause and observe the irony in saying scrutiny of Lord Grabiner’s decision is only subject to a light review test when the Bank’s professionalism should be subject to more searching scrutiny.  In particular, without criticising Lord Grabiner himself, it is worth observing here that this kind of balancing judgment about evidence is one which evidence from social psychology suggests professional agents instructed by a client find it difficult to do objectively.  The fact of instruction appears to influence judgment towards favouring one’s client subconsciously and that influence is an impact quite separate from financial incentives.  Of course there are countervailing pressures: Lord Grabiner would have been conscious of the need to do the job in as independent a frame of mind as possible for his own reputation.  Also, typically, senior lawyers claim enhanced levels of objectivity through years of legal experience and training.  The evidence on objectivity suggests that the more objective one thinks of oneself the less likely one is to be objective, but it is not a theory that has been tested on lawyers as senior as Lord Grabiner (though it has been tested on other lawyers with interesting results).

Overall then Mr Béar gives a lukewarm defence of Lord Grabiner’s judgment: it was a legally valid one.  He does not say the judgment was a good one, in his view, on the evidence.  I do not think one should read into that a view that Lord Grabiner’s judgment was flawed (though Béar seems to think it could have been better reasoned).  The narrow terms of reference, however:

… mean that (1) there has not been an examination of whether Mr Mallett’s failure to act on the conversation was a serious failure, and (2) there has not been an examination of the supervision of Mr Mallett by others in relation to his intelligence-gathering and escalation responsibilities.

…The broader questions do not concern the minute forensic dissection of a telephone conversation but the bigger picture. In this case the chief dealer of the foreign exchange desk of the central bank had a market participant report something to him. That report was introduced by a colleague who expressed serious concern. The participant used the language of manipulation and said banks wanted to “bully the fix”. Brokers were named. These expressions of concern did not come in a vacuum but in circumstances where the chief dealer had already concluded that behaviour was going on which would be difficult to justify to a regulator. The chief dealer did nothing other than ask the trader to keep in touch. He took no steps either to report the matter to anyone else or actively to follow up with the trader.

…The response to potential whistle-blowing is a crucial part of the overall credibility of the Bank. For reasons explained above, a central bank is liable to be seen as having a broad public responsibility, and a broad public reputation, even outside its specific areas of statutory responsibility from time to time. At present the review process has only dealt with part of the general questions raised. It has not addressed all the broader issues which the Select Committee and the Chairman of the Bank’s Court of Directors appeared to agree in June 2014 were part of what ought to be investigated. The broader question of serious professional misconduct which would be a standard part of an equivalent investigation in other spheres of life was not part of the reference.

Now as a statement of principle this has much to commend it.  Inquiries which seek to investigate wrongdoing must not be too circumscribed, particularly if there is a risk that a partial exoneration is presented as a more total exoneration.  Whether we think that is what happened here is likely to be influenced by our own biases: the evidence is a long way from conclusive on either side of the argument in my opinion.   Such reports risk a whitewash or exploding in the faces of the clients designed to be helped by them. Equally, a lawyer is in a tricky situation: the client has to pay for the investigation – they will not want to write a blank cheque.  The lawyer’s concern is not to be misused or complicit in misleading a regulator or third parties and to be truly, rather than notionally, independent.  I do not think whitewashing is the suggestion being made by this Opinion, but it does seem to be suggesting an error of judgment by the Bank of England in setting up an Inquiry with terms of reference which were too narrow.  Or maybe an error by the bank and the select committee, for they agreed the terms of reference.  I suspect we won’t get to hear how thoroughly canvassed the issues were in so doing.

Lawyers as Independent Investigators

The director-general of the SFO has vigorously criticised the recruitment of independent experts to investigate criminal behaviour in companies.  In August last year the Times reported him as saying, “the practice risks destroying the evidence needed to put rogue business people and bankers behind bars”.  His complaints included:

• Doubts about the reports that often cleared clients of any illicit activity or minimised their culpability. Perhaps implying investigations are advocacy document for their clients.
• There was often an “inherent conflict” in lawyers doing investigations for their clients.
• Legal privilege being mishandled.
• Crime scenes being churned up.

Enron, the News of the World, money laundering by Bank of Tokyo-Mitsubishi UFJ, the BBC Saville Newsnight affair and concerns about the Royal Bank of Scotland have all involved professional, independent investigations which have prompted criticism or, sometimes, regulatory action against the professionals.  Yet investigations can be seen as a necessary and proportionate step prior to reporting to regulators; key to companies getting to grips with poor conduct; and whether, how and when to report it.

On 6pm, March 25^th we will be hearing from Lord Gold at UCL as to How independent lawyer monitors and investigators contribute to corporate ethics.  He will speak from his experience as a leading adviser in business ethics advice building from his appointment by the U.S. Department of Justice as Corporate Monitor of BAE Systems plc and subsequent work for a wide range of blue chip businesses.

You can book here.

Some thoughts on how lawyers are responding to the UN Guiding Principles on Human Rights

UCL’s Centre for Ethics and Law is tonight hosting Professor John Ruggie, leading light on business and human rights and the driving force behind the UNs Guiding Principles on Business and Human Rights.  His work provides a fascinating insight into corporate change and the difficulties of globalising international order.

I want to concentrate here on the implication of his work for lawyers.  The IBA has produced a working draft of  Business  and  Human  Rights  Guidance  for  Bar  Associations, 2014.  It is the product of 8 lawyers from around the globe and provides an excellent introduction to area for the uninitiated and teases out some of the very interesting issues that face lawyers.  Those issues are posed as legal advisers to businesses . They are also posed to lawyers as owners, managers of businesses in their own right. In particular two of the three pillars of the Guiding Principles  on business and human rights apply:

(2)  all  business  enterprises  have  a  responsibility  to  respect  human  rights,  which  means  to  avoid  infringing  on  the  rights  of  others  and  to  address  negative  impacts  with  which  they  may  be  involved,  and

(3)  there  is  a  need  for  access  to  effective  remedy  for  victims  of  business-‐related  human  rights  abuses.

The IBA seeks to “encourage  bar  associations  and  law  societies  around  the  world  to  take  affirmative  steps  to  develop  an  overall  strategy  for  integrating  the  Guiding  Principles  into  their  work  for  the  legal  profession”.  In this country the Law Society have taken up the cudgels in their own working party report.  It might be thought that the Bar, and the regulators would also take an interest.  The IBA suggests Bar Associations (which I would read as including the regulators in this country), should adopt organisational structures for managing business and human rights activity; consider programmes of comprehensive  education; review  ethical  codes  of  conduct  in the light of the Guiding Principles and provide guidance  and  technical  assistance on how lawyers should implement the principles.

What should lawyers be doing?

The UN Guiding Principles do not, in and of themselves, create new rights though they can influence States and others (e.g. influencing or being incorporated into contracts, joint venture agreements, and the like).

And yet :

The  responsibility  to  respect  human  rights  is  the  baseline  expectation  of  all  business  enterprises.  The  Guiding  Principles  do  not,  and  cannot,  impose  legal  obligations  on  companies  directly  but  neither  are  they  voluntary;  businesses  (and  others)  do  not  have  to  ‘sign-‐up’  to  them  for  them  to  apply.  Aspects  of  the  responsibility  to  respect  human  rights  may  be,  and  often  are,  compelled  by  national  law  (for  example,  through  health  and  safety,  non-‐discrimination,  environmental  or  criminal  laws).  However,  the  responsibility  exists  over  and  above  compliance  with  national  laws  and  regulations  and  –  importantly  –  it  exists  independently  of  the  state’s  ability  to  meet  its  own  duty  to  protect  human  rights.  That  is,  national  law  does  not  limit  the  responsibility  to  respect  human  rights.

The  responsibility  to  respect  means  that  businesses  should  avoid  infringing  on  the  human  rights  of  others,  and  should  address  negative  human  rights  impacts  with  which  they  may  be  involved  (Guiding  Principle  11).  Companies  are  expected  to  take  appropriate  action  to  avoid  causing  or  contributing  to  adverse  human  rights  impacts,  and  to  seek  to  prevent  or  mitigate  impacts  that  are  directly  linked  to  their  operations,  products  or  service  by  their  business  relationships,  even  if  the  company  itself  did  not  cause  or  contribute  to  the  impact  (Guiding  Principle  13).  ‘Business  relationships’  refer  to  those  relationships  a  company  has  with  business  partners,  entities  in  its  value  chain,  and  any  other  non-‐state  or  state  entity  directly  linked  to  its  business  operations,  products  or  services.  They  include  indirect  business  relationships  in  an  enterprise’s  value  chain,  beyond  the  first  tier,  and  minority  as  well  as  majority  shareholding  positions  in  joint  ventures.

The Guidance sets out the kind of international  human right obligations which the Principles seek to govern. The (non-exaustive) list is:

Right  to  Life , Right  not  to  be  subjected  to  Torture,  Cruel,  Inhuman  and/or  Degrading  Treatment  or  Punishment, Right  to  Liberty  and  Security  of  Person, Right  to  be  Free  from  Slavery,  Servitude  and  Forced  Labour  Right  to  Freedom  of  Movement   Right  to  Privacy , Right  to  Freedom  of  Thought,  Conscience  and  Religion  Rights  to  Freedom  of  Opinion  and  Expression  Right  to  an  Adequate  Standard  of  Living , Right  to  Work  Right  to  Freedom  of  Association  and  rights  to  Collective  Bargaining , Right  to  Enjoy  Just  and  Favourable  Conditions  of  Work , Right  to  Freedom  of  Assembly  Right  to  Participate  in  Public  Life  Right  to  Take  Part  in  Cultural  Life , Right  to  Health  Right  to  Water  and  Sanitation  Right  to  Education , Right  to  a  Family  Life, Right  to  Non-‐Discrimination  Rights  of  Minorities , Rights  of  Protection  for  the  Child  Right  of  Self-‐Determination,  Rights  to  freedom  from  war  propaganda  and  freedom  from  incitement  to  racial,  religious  or  national  hatred, Right  to  social  security, Right  of  detained  persons  to  humane  treatment, Right  to  recognition  as  a  person  before  the  law, Right  to  a  fair  trial  (and  aliens’  rights  to  due  process  when  facing  expulsion), Right  to  be  free  from  retroactive  criminal  law, Right  not  to  be  imprisoned  for  inability  to  fulfil  a  (private)  contract.

Furthermore gross human rights breaches should be treated as ‘a legal compliance issue’.

What is expected of businesses?

The guidance suggests each business, however large or small, should have:

• A high-‐level policy  commitment  to  respect  human  rights,  supported  by  operational-‐ level  policies,  training,  and  incentives  that  embed  the  commitment  throughout  the  organisation  (Guiding  Principle  16).

• Human rights due  diligence  processes  through  which  the  business:  (i)  assesses  the  actual  and  potential  impacts  on  human  rights  arising  from  its  own  activities  and  through  its  business  relationships,  (ii)  integrates  the  findings  from  these  assessments  and  takes  action  to  prevent  or  mitigate  adverse  impacts,  (iii)  tracks  the  effectiveness  of  its  efforts  to  address  human  rights  impacts,  and  (iv)  is  prepared  to  communicate  these  efforts  to  affected  stakeholders  and  others.  (Guiding  Principles  17–21).

• The provision of  or  cooperation  in  legitimate  processes  to  remediate  human  rights  harms  that  the  business  has  caused  or  contributed  to,  which  may  include  non-‐ judicial  operational-‐level  grievance  mechanisms  (Guiding  Principles  22,  29  and  31).

The guidance distinguishes between human rights harms caused, contributed to, or liked to the business.  Importantly for lawyers, advising or assisting clients may well constitute linkage, contribution or (more rarely) cause.  Depending on which point on this scale the ‘linkage’ falls action may be expected to stop, prevent, mitigate and/or remediate the harms.

It is when the guidance turns specifically to lawyers and legal business that things get particularly interesting.  Advice ot clients on the law applicable to them in any jurisdiction may not be enough to comply with the principles.  National  law  may be at  odds  with  international  human  rights  standards and the lawyer may need to help the client look at ways of meeting international standards in spite of such laws.  Companies  specific  policy  commitments,  membership  of (say) industry based associations may mean they have already signed up to broader commitments.  The guidance claims:

…corporate  in-‐house  legal  leaders  are  now  challenging  their  outside  counsel  to  proactively  advise  them  on  human  rights  risks

Reputational risk and the possibility of law changing to bring more formal sanctions or remedies for human rights violations also may drive lawyers to providing more rounded, human rights sensitive advice, as may corporate reporting requirements.

The reach of the guidance goes beyond advice to clients though.  Particularly of note is the warning that:

 a  company’s  litigation  strategy  and  tactics  has  recently  been  raised  as  a  topic  to  explore  under  the  responsibility  to  respect  human  rights.  As  Professor  Ruggie  has  said,  business  lawyers  may  wish  to  consider  ‘laying  out  for  their  client  the  entire  range  of  risks  entailed  by  the  litigation  strategy  and  tactics,  including  concern  for  their  client’s  commitments,  reputation,  and  the  collateral  damage  to  a  wide  range  of  third  parties’  as  part  of  helping  their  client  understand  the  full  implications  of  any  proposed  approach  to  responding  to  claims  of  human  rights  harms.

It seems to me that there is a plausible argument that lawyers will need to consider the implications not just for the client’s risk but also for their own conduct risk.  Judges voice anxiety from time to time about litigation tactics (evidence polishing for instance); abuse of process, wasted costs, as well as general ethical principles demand a degree of independence in the execution of litigation and advocacy standards, with a view on the lawyers obligations to protect the rule of law and the administration of justice.

The IBAs draft already emphasises the interplay between duties of candour and independence in the provision of advice. It also tackles, “potential  tensions  between  a  lawyer’s  responsibilities  under  applicable  codes  of  conduct  and  the  Guiding  Principles.”  This is one of the reasons it recommends Bar Associations [or regulators] review their codes.

There is also an expectation that, “firms  might  be  expected  to  exercise  leverage  in  order  to  influence  their  clients  to  respect  human  rights” and how they might do that. What might leverage look like?

There  are  a  number  of  ways  in  which  a  law  firm  may  be  able  to  increase  its  leverage  either  alone  or  with  others,  for  example:

• It could emphasise  to  all  its  clients  up-‐front  that  it  intends  to  advise  on  the  ‘big  picture’,  which  includes  human  rights  risks,  in  order  to  provide  greatest  value  to  clients,  particularly  those  operating  in  risky  environments.
• It could tactfully  raise  with  a  client,  in  anonymised  form,  the  kinds  of  problems  that  other  companies  have  faced  when  they  have  not  fully  addressed  human  rights  issues  associated  with  a  similar  transaction,  and  offer  to  advise  on  how  to  avoid  those  problems.
• It could offer  to  provide  capacity-‐building  to  clients  and  their  legal  departments  on  human  rights  issues,  either  by  itself  or  with  outside  experts  as  appropriate.
• It could provide  advice  and  services  on  business  and  human  rights  on  a  pro  bono  basis  to  clients.
• It could issue  client  briefings  and  alert  bulletins  on  specific  human  rights  issues  related  to  its  individual  practice  groups  that  highlight  the  kinds  of  legal  and  regulatory  developments  outlined  in  Part  2  of  this  Guidance.
• It could participate  in  multistakeholder  dialogues  or  fora  where  the  firm  can  champion  business  and  human  rights  issues
• It could support  the  efforts  of  law  societies  and  bar  associations  to  provide  training  and  guidance  for  member  lawyers  on  business  and  human  rights  issues.

Some of this leverage is very gentle indeed, but the softly softly approach is consistent (perhaps) with Ruggie’s principled pragmatism. The IBA clearly are very conscious of the business interests of legal businesses here.

There is an expectation that (proportionate to the risks) human  rights  due  diligence  is done by law  firms on clients and transactions.

…In  assessing  impacts,  a  firm  will  want  to  consider:  (1)  the  stakeholders  whose  rights  may  be  affected  by  the  activity  or  project  for  which  legal  advice  or  services  are  being  sought  (eg,  factory  workers  in  a  major  supplier;  local  communities  around  a  mining  project);  (2)  the  severity  of  potential  impacts  (eg,  a  major  factory  accident;  excessive  violence  by  security  forces  protecting  the  mine);  and  (3)  the  likelihood  of  potential  impacts,  based  on  the  client’s  operating  context,  business  relationship  context,  and  management  system  context

There is a definite sense of a real capacity problem here.  That structurally lawyers are not always well placed to conduct such due diligence and may not always have the skills to do so:

a  lawyer’s  limited  knowledge  of  the  underlying  facts,  and  constraints  on  his  or  her  ability  to  learn  more,  may  prevent  a  full  assessment  of  the  likelihood  of  an  impact.  Compared  to  in-‐house  counsel,  a  law  firm  may  not  understand  the  full  scope  of  the  client plans  but  may  only  be  called  in  to  address  a  narrow  legal  issue,  and  the  client  may  not  be  willing  to  pay  to  let  the  firm  dig  more  deeply.  Absent  client  permission,  the  law  firm  will  be  precluded  from  engaging  with  potentially  affected  stakeholders,  and  may  not  have  the  capacity  or  expertise  to  do  so  in  any  event.  In  such  cases,  the  firm  will  have  to  make  reasonable  assumptions  based  on  what  it  knows  about  the  matter,  what  it  can  learn  from  third  party  experts,  and  what  is  publicly  available.

The idea that clients should pay for law firms to do due diligence on them is an interesting one; though of course all clients ultimately pay indirectly for this kind of work how many businesses would ask the clients to pay directly, I wonder.

How might we expect law firms to respond to this draft guidance?  We might get some clues from the  earlier document from The Law Society’s Business and Human Rights Advisory Group January 2014 document.  The recommendations were a bit more tentative and less detailed than the IBA’s guidance.  A point worth noting is that the professional principle which gets the most attention is the duty to act in the client‘s best interests.

Acting in the client‘s best interests and advising on the prevention and mitigation of adverse human rights impacts should go hand in hand. Providing information and advice on human rights risks does not require the lawyer or client to agree on what is ethically right or wrong but provides important context and improves legal advice.

This is a view which emphasises the non-bindingness of the Guiding Principles and does not address the extent to which serious breaches of international human rights obligations should be treated as legal compliance issues.  It also (I think) avoids the tricky issue of the extent to which lawyers are linked or contribute to the harm inflicted by their client assisted by legal advice and other work.  This emphasis on one principle is particularly curious given that professional obligations perhaps more consistent with the Guiding Principles are not mentioned at all. Hence the first (and pre-eminent) principle that binds solicitors is the obligation to, “uphold the rule of law and the proper administration of justice; and the third principle is to “not allow your independence to be compromised;”.  Now I can understand why the Law Society working group might be keener to emphasise the client friendly aspects of the proposals.  And I can also see the argument that it is not clear whether and how the Guiding Principles inform the solicitors’ promotion of these principles.  But there is an at least as plausible argument that the obligation to promote the rule of law and the administration of justice is engaged and that the Society’s commitment to and promotion of the Guiding Principles is both more convincing and more meaningful if all the relevant professional principles are at least discussed and, preferably, also seen as engaged.

Does experiential learning in law school improve employability?

Should law schools change their curriculum to make graduates from JD programmes more practice read’?  Bear in mind that in the US we’re talking about the JD, and that there is no equivalent of the training contract in the US, so bar exams aside, this is the course that gets people ‘skiiled up for’ attorney positions.  One might assume that a move towards more experiential/skills based education in US law schools would lead to greater employability. So far though the evidence suggests not.   There’s an interesting US paper on just this issue: Does Experiential Learning Improve JD Employment Outcomes? By Jason Webb Yackee, University of Wisconsin Law School.  If I can quickly excerpt from it you will get the drift:

This short paper provides an empirical examination of the link between law school experiential learning opportunities and JD employment outcomes.

…The basic idea is that by increasing opportunities for skills learning, law schools will produce graduates who are closer to being “practice-ready” (another concept to emerge in the crisis-related debates), and that law firms will be more likely to hire those graduates than they have been to hire graduates who pursued a traditional curriculum.

[Alternatively]…We can imagine a contrasting but nonetheless plausible story that would go something like this: law firms and their clients don’t actually take skills training into account when deciding whether to hire (or to pay for work by) young associates.

Firms tend to rely overwhelmingly on simplifying heuristics when deciding where to interview (primarily, a law school’s national reputation; perhaps also geographic proximity to the firm) and who to hire (primarily law school GPA; perhaps also moot court or law review selection; probably the candidate’s poise in the interview). Those heuristics may even be “rational” in a sense. A focus on law school reputation may provide law firms (which may be risk averse in hiring) with a low cost and fairly reliable signal of a job candidate’s capacity to do legal work, and of his or her desire to do it.

…

Before presenting the study’s research design and findings, the reader should understand that I neither aim to show, nor does the paper claim, that experiential learning is wasteful, misguided, or otherwise undesirable.

…

Finally, let me emphasize that the present study is presented as suggestive, and its conclusions tentative.

And the results of the study?

To summarize the paper’s key finding: there is no statistical relationship between law school opportunities for skills training and JD employment outcomes. In contrast, employment outcomes do seem to be strongly related to law school prestige.

Go figure.

Conspiracies around a Sun trial point finger at senior judge(s)?

The Guardian has an interesting story on a retrial of four, including some former or current Sun employees.  To quote the particularly  relevant bits:

A decision to remove a judge lined up for a retrial of four Sun journalists has led to a legal row at the Old Bailey involving some of the most senior judges in the country.

Judge Richard Marks has been replaced by Judge Charles Wide to preside over the forthcoming retrial of Chris Pharo, the Sun’s head of news, Graham Dudman, a former managing editor, and two others.

On Friday morning, defence counsel for the four journalists lined up in front of Wide to question the decision. At one stage they threatening to take the matter to judicial review.

Defence counsel indicated Judge Marks had emailed them advising them, “that he had been removed.”  The decision appears to have been taken within the last month.  The email is said to have given:

the impression that his honour Judge Marks has been taken off this against his will.

In particular, the Judge’s email is reported to have said he has been taken off by more senior judges: “he says his ‘elders and betters’…” One defence barrister is reported to have submitted:

The way this has come about gives rise to the impression that something has been going on behind the scenes which should not have been going on behind the scenes and which should have been dealt with transparently.

He said the “the defendants are extremely concerned” and were “entitled” to know why Marks was being replaced by Wide. There is also a whiff of grandstanding in some of the comments from the defence barristers:

It can’t be a state secret, I don’t think Mr Putin is going to lose any sleep over why my Lord has been selected. But it is this sort of obsessive childish secrecy we get in this country which causes enormous disquiet.

But there is also a point of substance:

He said “If there is an explanation” is should be made public. It could simply have been a “tactless” move to take a judge off a case to which he has already publically committed.

The inference being drawn by at least one of the defence barristers appears to be that Judge Marks has been replaced by a judge with a more prosecution friendly approach to mens rea.

There are two reactions to this. One is that this kind of email correspondence between judge and counsel is not that unusual and does not of itself indicate anything suspicious. If so, Judge Marks must be regretting his causal remarks which do give a sense of some pique at having been pulled from the case. But pique at being pulled could be for any number of reasons.  Some have suggested to me that on the basis of the facts as reported this is not an unusual set of occurrences and we should read nothing into it.

If that is right, and neither the decision nor the communication is unusual, then the approaches of defence counsel could come under scrutiny.  The have an obligation to protect the interests of their client but that is subject to obligations not to waste the court’s time (rC3).  Also, they are obliged not to abuse their role as advocate by:
making statements or ask questions merely to insult, humiliate or annoy a witness or
any other person (rC7).  The rules offer extra protection to a witness where if an advocate makes a serious allegation against a witness they must give that witness a chance to answer the allegation in cross-examination (rC7).  Here the intriguing issue is what happens where a serious allegation is made against a judge, who is not a witness and is not managing the trial?  It certainly appears to be a serious allegation which is beginning to be made.

As regards that, the rules of conduct require that an advocate must not make a serious allegation against any person unless the advocate has reasonable grounds for the allegation.  In this regard one could debate whether the allegation is actually being made, I think it is, but also whether the email from Judge Marks is reasonable grounds for doing so, which I think is debatable.  I’d give the defence barristers the benefit of the doubt.

Of course, the easiest way of dealing with this would be to give a proper explanation for the decision to the defence and prosecution.  Delay and secrecy in this regard is not conducive to administration of justice and by now has already done some damage.

—-13/02/15 Update—-

A judge involved in the listing of the case has subsequently sought to squash the defence allegations by indicating their concerns are without foundation: http://www.theguardian.com/uk-news/2015/feb/13/sun-retrial-complaints-over-removal-of-judge-branded-absurd?CMP=share_btn_tw

In-house media lawyer heading for the spotlight?

An interesting Independent story on the Mirror’s Hacking travails has the barrister for the claimants, David Sherborne, making an allegation in open court that earlier public statements relating to phone hacking made by senior Trinity Mirror individuals were “knowingly false”.  The Independent lists a whole set of statements including these ones:

“I am not aware of any deliberate transgression of the criminal law at the ‘Daily Mirror’ during my time as editor”. Richard Wallace, former ‘Daily Mirror’ editor

“The editors all confirmed that Trinity Mirror could say that our journalists work within the criminal law and the PCC”.  Paul Vickers, former Trinity  Mirror legal director

“Trinity Mirror’s system of corporate governance means that we work with the law and the code, which I believe we do”.  Tina Weaver, former ‘Sunday People’ editor

“To the best of my knowledge, the law and the Code are adhered to in practice”. Lloyd Embley, editor-in-chief Mirror Group Newspapers (MGN)

This raises a whole set of interesting issues:

• If the Indy seeks to imply that some or all of these statements were knowingly false are they implying Mr Vickers’ statement was one of those?
• How many of these statements would have passed through the legal department before being made?  My guess is at least some, but it is speculation at this stage.
• What does someone mean when they say they work with or within the law?

The latter claim is regularly made by senior Executives seeking to defend public allegations of wrongdoing.  Yet it can mean a range of widely differing things; from we haven’t been shown by evidence that fully satisfies us (whether we have looked for it seriously or not) to have clearly breached any significant criminal law, to the much more meaningful, we have fully operated within the letter and the spirit of the law and have taken all reasonable steps to check that we have so operated.  In other words, saying we operate within the law can be a smokescreen or a meaningful statement.

The last of the three bullet points is the least dramatic of the three but it also raises the role of in-house lawyer in advising on and assisting with the making of statements which are, or may be, designed to mislead the Company’s opponents or regulators.    As previous posts have shown the same questions can often be asked of private practitioners.

It can often be difficult to judge whether such steps are taken by accident or design.  Roy Greenslade, of the Guardian, wrote a piece criticising Mr Vickers in trenchant terms for his handling of an investigation into hacking within the Trinity Mirror group.  Some readers will recall that Enron, and the News of the World have also sought to rely on investgations which were criticised as whitewashes.  Similar allegations are habitually made where a client instructs internal or external lawyers to investigate alleged wrongdoing – some are well founded others less so.  We will have to wait and see if such an allegation proves well-founded here. For now, all eyes must be on Mr Sherbourne.  He cannot (or at least should not) make the allegations he has without evidence which can at least begin to reasonably make the case.  It should not, in other words, be a mere allegation – he should have something.  It would be interesting to see too if he has sufficient evidence to override legal professional privilege within Trinity.  However, this interest may be frustrated: settlement will, almost inevitably, frustrate hopes for greater clarity, unless the relevant professional regulator steps in.