How much do law graduates earn…?

Some very interesting data out linking graduate and tax records, which deserve wide digestion and scrutiny. I have not had time to do the latter, but my quick take is here on Storify.

law 2

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Martyn’s Day

For some time, I have known how I would start my inevitable blogpost about Leigh Day’s disciplinary hearing. Win or lose, I would want to state unequivocally my prior belief, my starting point. That starting point is best indicated by what I told a legal magazine when asked – about three years ago- which lawyer I most admired and why? I thought for a bit and then told them Martyn Day. There were, from memory, two reasons.

One was that I admired the way Martyn had built a firm that did important work that they really believed in. Perhaps I should have picked Sarah Leigh who actually started the firm: male centric bias, quite possibly, but I had met Martyn a handful of times, in professional contexts where he was always purposeful, interesting, even though he was properly wary of me (what I was working on was somewhat antagonistic to his beliefs and his interests).

The second was that I, and the researchers I had worked with, (worked ‘on’ might be a better description) Leigh Day lawyers, and we and they came away with a feeling that this was a firm that had great people and the ‘culture thing’ as good as we had seen it. Partly for that reason, I could not really bring myself to engage with the reporting of the SDT hearings. I couldn’t read it through the glasses I had on. I did not want to.

The second point is that Martyn, and Leigh Day, has enemies. I know, imagine. I remember being taken aback when seeing a leading City spokesperson literally hissing about them being ambulance chasers. The hypocrisy was shocking: the same spokesperson that would have smoothly defended the way his colleagues ingratiate themselves with (say) Big Tobacco, or pretend that the debate about Tax Havens is properly framed as a debate about privacy had lost, I thought – but I might be wrong – a sense of perspective. The commercial law world is compromised by the need to keep their clients sweet but that does not mean Leigh Day is not, was not, might not be too. Phil Shiner had reminded us what was possible. I would have to wait for the findings to see what came out, I knew.

So, as you might imagine, I am relieved that Martyn and his colleagues were acquitted. A little piece of me does not have to die. And I am not unsympathetic to idea that dark forces were out to get him. And for what it is worth, what I did read of the SDT hearings did not suggest to me they had a good case. But also, for what it is worth, what I have read of the allegations that the SRA bent to the pressure of the government was similarly weak. But I want to say that my judgment here, at least, is likely to be limited – only modestly encumbered by evidence and experience. And I see the same flaws in judgments being reached by the professions and the commentators via the vehicle of questions need to be asked.

It is certainly the case that the hearing was expensive. And that the SRA lost on all 20 counts might very well raise questions about whether the prosecution should have been brought. And that any discussion between the SRA and the Government might have been inappropriate or unwise. But it might also be the case that the SDT is a poor tribunal. Or that the standard of proof is wrong (or right – this case may very well be an interesting and acute case study of the problems posed in disciplining lawyers). It is also the case that it would be worrying indeed if the good, sometimes great, and – the law of averages tells me – sometimes poor work that firms like Leigh Day does might be chilled by such judgments. But it is also the case that allegations of the sort that were made really do need to be investigated and, where appropriate, prosecuted. Phil Shiner tells us that, if it tells us anything. Martyn’s innocence (if that is properly how we see an acquittal) does not tell us that there is a need to find blame – not yet. And neither does it tell us we should not have a proper but balanced look to see if blame is deserved.

Oh, and there is one other thing which I was readying myself to say if Martyn had been convicted. Although, I confess now I am not sure I would have been brave enough to say it without carefully reading the decision (which we must wait for until August). Instead, I remind you about two other lawyers who I greatly admire, for similar reasons, and who could just as easily have made it into my most admired column, two similarly high profile, senior lawyers of great repute have been convicted – in the past- and after they scaled the heights – of significant professional misconduct. Making mistakes is much more common than we care to admit. Some of those mistakes probably do require the full monty of adversarial process but most probably do not. And nor do mistakes usually require the analgesic reaction meted out to (say) Phil Shiner. Pretending this is about bad guys and that they are acres away from us is not always wise. So let’s react, investigate, think about the lessons to be learned. But let’s also keep those lessons in perspective and remember which glasses we have on as we peer at the few things we know now or the SDT judgment in a few months’ time.

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Cryptic Disclosure: My first take on the Trojan Horse case

The Trojan Horse case (h/t Rich Greenhill for the link) is an uncomfortable reminder of how badly wrong lawyers can get disclosure obligations. It would be interesting to explore the reasons why that is and to wonder how much of this goes on unremarked upon (as nearly happened here). Whilst it can sometimes be difficult to ask a lawyer to step into their opponent’s shoes and decide which material may be relevant to, and disclosable to, their opponent’s case; that was not the case here.

Where we end up is – according to the decision of the Panel – a deliberate attempt to mislead their opponents and the Panel about the existence of obviously disclosable documents. Whether that failure was a knowing and reckless failure or a professional misjudgement (as the firm involved will almost inevitably seek to present it) remains to be seen. It will be crucial to the careers of at least some of the lawyers involved.

What it also indicates is an interesting attempt to use (or rely upon, depending on how deliberate one thinks this has been) institutional and professional boundaries to blur responsibility for disclosure problems. Counsel encouraged, the Panel and his opponents to think the real reason documents was not disclosed was a cock up in one part of Government, slightly but significantly removed from the client he represented.

Why he did so remains to be explained. Who thought the non-disclosure of documents could be said to be due to one part of government not knowing what the other held when that was untrue is an important and unanswered question in this case. Was it something dreamed up on the hoof in the heat of proceedings, perhaps as the result of misunderstanding one’s instructions? Was – as seems more likely – counsel instructed this was what happened – which seems to be a very deliberate and catastrophically damaging thing to have happened for whoever gave those instructions (could it be client, could it be the solicitors, could it just be the chaos of war)? With a Government Department, an Executive Agency, a firm of solicitors, and Counsel, there a number of ways of slicing, dicing and defining away the blame. Yet, the administration of justice should demand someone takes responsibility. So far, no one appears to have done so, save a fresh counsel –untainted by the allegations – called in at the end to make some admissions.

And interestingly, when one counsel on the case spots the problem, they are given a ‘torrid time’ for what turns out to be exposing what appears to be significant wrongdoing. The people giving them the torrid time are presumably the same lawyers caught up in the wrongdoing. And then those caught up disappear at the critical moment when the wrongdoing is revealed. It speaks to a wretched sense of professionalism and the covering already naked backs. If you are interested, read on to see a summary of the case…

The case involves a disciplinary panel on teachers accused in to an alleged plot to ‘Islamify’ Birmingham schools. There is a timeline on the BBC site here which rehearses some of the background. One of the teachers accused was represented by barrister Katie Langdon. Ms Langdon is the heroine of the piece. As has been widely reported in the press, the case was thrown out. The National College of Teaching and Learning were represented by Nabarros (who have taken the most flack for the allegations) and for the most material times instructed Andrew Colman as “Presenting Officer” (as I understand it, essentially the prosecutor of the case against the teachers).

The case was a complicated, document heavy one. Very late in the day, when the panel was about to announce its decision on the case, questions were raised about non-disclosure of the ‘Clarke transcripts’ (their existence had not, it seems, been disclosed in the unused material). After that, in December 2016, Nabarros indicated they had reviewed the transcripts and disclosed one (whilst taking the view it was not harmful to their case or helpful to their opponents). Seven others were disclosed after the Panel considered whether the confidentiality originally (and erroneously) promised to the witnesses that had been transcribed could be overridden by the public interest in the teachers’ teams having the statements. In discussing with the Panel why the documents had not been disclosed sooner, the Presenting Officer said this:

” I have to say, and I will not go into greater detail than this, that it seemed they also gave rise to some departmental misunderstanding about what material was and was not accessible to the NCTL, at an earlier stage of these proceedings, for which I apologise. That position has been clarified more recently, and so, the material has been available for those presenting the case on behalf of the NCTL to consider, and we have considered it”.

The suggestion was that the sponsoring department of the NCTL the DoE (it is an Executive Agency for the Department of Education) had had the transcripts not the NCTL. Their lawyers would be able to say, hand on heart, they had not had or seen the document. Sadly though, the position is not as it was suggested as the Panel goes on to report:

It was understood that the material which the presenting officer accepted should have been disclosed in accordance with the NCTL’s responsibilities was held by the Department of Education. Indeed, he said this included not only material which may harm the NCTL’s case and/or assist the cases of the teachers but also material which may have assisted the NCTL’s case although there was no application by the NCTL to introduce any further evidence.

The decision not to pursue material which may have assisted the NCTL might most kindly be described as being an offer in the manner of Alanis Morissette. They were, as it turns out, offering not to rain on the teacher’s judgment day when they had no water. The Panel goes on:

As at 12 April 2017, it had been accepted by the presenting officer, Mr Colman, that there had been failures in the disclosure process but that it was through misunderstanding rather than any deliberate acts or omissions on the part of the NCTL. Indeed, the following exchange took place at that hearing between Mr Colman (“AC”) and the legal advisor [to the Panel] (“RH”)

“AC: I have – the reason the Panel couldn’t decision -, deliver its decision in December has its genesis in the late disclosure of material by the NCTL, and I accepted that we should have had that before, and it should have been disclosed before. And I can say no more about that, except that as soon as we received it, we made every effort to review it as soon as possible, and did it in what in the context was extraordinarily short period of time, given the quantity of material, and have sought to move these proceedings forward since then as productively as we can.
RH: Do, do you mind if I just interrupt? You said you can say no more about -,
AC: I can’t – I can’t seek to justify the reasons why you did not have the material earlier. We should have.
RH: and it -, can you provide the Panel with an explanation as to how that has come about?
AC: I don’t think I can go further than the rather cryptic phrase I used earlier with departmental misunderstandings. Mr Faux, explained that on the defence’s part, they have assumed that the Clarke material was not held by the Department for Education but by the House of Commons. It turned out it was held by the Department for Education, and that they should have provided it to those presenting the case for the NCTL earlier.
RH: sorry, who should have provided it?
AC: the DFE
RH: So, departmental understandings are between -,
AC: between the -, there is a structure in place between the Department for Education and the NCTL put in place to try assure the judicial independence of Panels such as yourself, in that it is a separate executive agency. But it still under the auspices of the DFE. And that’s what I – I don’t think I can go further really. I think that need to take further instructions if there’s anything well-detailed required.”(sic).

The discomfort is clear and it is unfortunate that he was not asked to provide a more specific explanation as there are at least two clear possibilities (there may be others). He does not wish to disclose information harmful to his clients or he does not know the situation in sufficient detail to explain it.

Then Ms Langdon, representing one of the teachers, made a very interesting intervention. She:

stated that she had read the Clarke transcripts which had been disclosed and that she had seen certain of the text before. When she had looked back at the witness statements which had been served by the NCTL in these proceedings, she recognised the same text in those statements.

And the Panel makes this even more interesting observation:

It is fair to say that Ms Langdon was taken to task as she was making such a serious allegation [later on they refer to this being ‘torrid’ which suggest significant pressure was brought to bear on her], in effect saying that this failure to disclose was not down to departmental misunderstanding at all, but that the transcripts had been in the possession of the solicitors instructed by the NCTL at the time the witness statements were prepared for the purposes of these proceedings. This was clearly contrary to the statement made to the Panel by the presenting officer on 12 April 2017 as referred to above. Ms Langdon was afforded some time to review the transcripts and the witness statements to find out whether she was able to present to the Panel examples of similarities between the text in both documents. Ms Langdon was unable to do so but did not resile from her position that such similarities existed. Ultimately, Ms Langdon did not pursue those submissions and the presenting officer stated that if such submissions were not being pursued, “can we not just leave it at that?”

And as a result, the Panel accepted that the failures with regard to disclosure of the Clarke transcripts were caused by misunderstanding on the part of DfE and set about trying to come to a final decision. Then comes the biting of the rat that Ms Langdon had smelled but, under severe pressure from her opponents and under – we know not how much but probably significant – time pressure had been unable to fully flush out into the open.

By the time of the relevant hearing, the identity of the Presenting Officer had changed from Mr Colman to Mr Christopher Gillespie and he brought with him a document entitled “Note to Panel” dated 1 May 2017. The Panel, with admirable restraint, remarked drily:

It is worth pointing out that, despite the seriousness of the revelations contained within the Note, and despite the fact that the presenting officer, Mr Colman, and his colleague, Mr Geering, had appeared on each of the 34 hearing dates up to and including 23 June 2016 together with the additional hearing dates on 20 December 2016, 16 and 17 February 2017 and 10, 11 and 12 April 2017, neither were present nor did anyone from their instructing solicitors, Nabarros, attend.

The Note was prepared by NCTL solicitors in these proceedings, Nabarros, which had become part of CMS Cameron McKenna Nabarro Olswang LLP (“CMS”) on the same day as the note (a coincidence). The Panel was highly critical of the note which, it said, “raised more questions than answers and was conspicuously lacking in specificity. It professes to be a Note designed to clarify …It completely fails to provide such clarity.”
Importantly though, it did confirm

… that CMS had been in possession of 25 of the Clarke transcripts at the outset of their instructions which was prior to the NCTL notifying any teachers, to include the respondent teachers, that there was to be an investigation in respect of their conduct. This is in direct conflict with the understanding both the Panel and the teachers’ representatives had been allowed to believe for many months, namely that the transcripts were in possession of the Department for Education or, for example, the House of Commons and “departmental misunderstandings” had led to the failures on the part of the NCTL to meet its disclosure obligations.

And:

The Note makes clear that the Clarke transcripts were utilised when the witness statements were being prepared for the purpose of these proceedings. Their importance, therefore, cannot be overstated. The transcripts are clearly relevant and CMS must have looked upon them as relevant as they were being used in the course of the preparation of the witness statements.

The note then engages in what looks like a mealy mouthed attempt to justify the obfuscation which perhaps give some insight into the thinking of the lawyers involved, but also deepens the sense that the documents were knowingly lied about (I should emphasise we would need to hear the individual lawyers’ side of the story to be sure whether this is really so but it does not look good). It is an observation particularly important in light of the attempt to blame non-disclosure on the documents not being held by the NCTL. The claim was that to protect witness confidentiality promises (promises that could not be properly made in a watertight way) the witness statements were written in a way which, “contained all relevant evidence in the proceedings so as to make it available to the teachers and the Panel.” This in no way provides any kind of defence, that I can see, to a failure to disclose the antecedent material. The Panel are perhaps even less impressed saying the explanation is inconsistent with a number of other things that CMS (the Nabarros bit, as I am sure CMS are now thinking of it) did on the case. The Note also says the Clarke transcripts were provided to Counsel in November 2016. And that CMS had been in possession of the transcripts since late 2014. The Panel assumes , “CMS had not informed the presenting officer at any stage that they had been in possession of the transcripts since late 2014”.

After the note (on the 4th May) came a witness statement from the partner at CMS with conduct of the matter confirming they had the transcripts approximately 3½ months before the relevant witness statements were signed and finalised. And then this happened:

Despite the fact that the Panel had directed witnesses to attend to give evidence, the partner was not in attendance. The reason given for her non-attendance was that she had to attend a partners’ meeting.

The sarcastic remarks I have written here and deleted you will have to guess at. At the hearing the Presenting Officer (Mr Gillespie) accepted:

in the course of the various hearings including, and since, the hearing on 20 December 2016, the Panel and the teachers’ representatives had listened to submissions on the issue of disclosure which were not correct and that the Panel had been misled
…It was accepted …that one interpretation of CMS’s approach was that it sought to circumvent a disclosure requirement by making sure that everything they considered relevant was included in the witness statement
…Mr Gillespie stated that the decision to withhold disclosure of the transcripts was not,”….an unconscious decision. It was misguided perhaps, but the intention was to make sure that what had been said to the Clarke Enquiry, insofar as it was relevant to what was then going to be before the Panel, was contained within the witness statement now, I’m not attempting to justify that.” He went on to say, “it was not done in a way, I hope, to frustrate the proceedings. It was trying to balance a number of different issues and maybe getting the balance wrong.”

The panel unsurprisingly takes the view that the Clarke transcripts, “were deliberately withheld from disclosure”; “that CMS clearly understood the status of this category of document,” and that it is, “fair and appropriate to discontinue these proceedings for abuse of process on the grounds that it offends the Panel’s sense of justice and propriety to be asked to continue to hear the case against the teachers given the particular circumstances of the case.” And of the failure of the CMS partner to turn up for the hearing they note this:

At the very least, the Panel finds that to be disrespectful but, more fundamentally, it meant that the Panel and the teachers’ representatives were deprived of the opportunity of making further enquiries, and seeking further clarification, of what exactly had gone on when decisions were being taken in late 2014 and 2015 regarding the whole topic of disclosure.

On Mr Colman, their comments are fuller of doubt, but nonetheless I think suggest his conduct should be investigated. He is deliberately cryptic in April, when he knows of the failure to disclose and is offering a partial explanation which he cannot or will not develop upon, and we have no explanation as to how the ‘DfE had the documents’ explanation he offered to the Panel came about. The Panel is itself though is measured:

The Panel is prepared, on balance, to find that, up to 12 April 2017, Mr Colman was working on the same assumption although it is surprising to say the least that, when he was provided with certain of the Clarke transcripts in November 2016, Mr Colman neither asked, nor was told, when CMS had come into possession of them

One of the things that is interesting here is that it was at the April 27th hearing that Mr Colman made his cryptic remarks and at which Ms Langdon was given such a torrid time. By whom is not clear. Was it Mr Colman? It seems a logical thing to assume. Having not been able to give full details on how the documents had not been disclosed what did he say and do when Langdon not only smelt a rat but smelt the right rat? We do not know, but the Panel does not think they were deliberately misled:

The Panel does not consider that Mr Colman would have set out to mislead the Panel and the parties deliberately in such a serious manner…In support of this finding, the Panel notes that it was at the conclusion of the hearing on 12 April 2017 that enquiries must have been made by or on behalf of Mr Colman which revealed that the Clarke transcripts had been in the possession of CMS since October 2014 and this led to the Note to the Panel of 1 May 2017 (which we were told was dated incorrectly and should have been dated 2 May 2017). Had Mr Colman looked to mislead the Panel deliberately, no such enquiries would have been made and the Panel and the teachers’ representatives would have been none the wiser

So it seems too that after that during or after the hearing Mr Colman may also have been smelling the rat that Ms Langdon had been taken to task for asking about.

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Never mind the result, what’s your reasoning? How far computers can tell you what a case says.

One of the interesting counters to discussions about AI predicting legal outcomes (aside from it not always working that well yet), and whether legal robots are really robots* is that a practice at the heart of lawyering is the understanding and giving of reasons. Computers can’t do that, so the story currently goes, and so lawyers are safe. But an interesting study has just been published in Artificial Intelligence and Law called Recognizing cited facts and principles in legal judgements by
Olga Shulayeva, Advaith Siddharthan and Adam Wyner which gives us some inkling into how near or far we might be from machine driven analysis of law’s reasoning.

The aim of the piece was to test whether it is possible to generate accurate summaries of the facts and reasons for decisions in case law. Think of it as a significant step towards automatic headnote generation. Given the overwhelming volume of case data, this is not a trivial advance and it is a technique which suggests the possibility of shaping reasons from unpredictably structured narratives.

 

What they find is this: they test the human annotation of cases (an expert trains a lay person to identify text in the cases which contain cited facts and relevant principles) and they compare the accuracy of so doing it with an algorithmic approach. They find, “human annotators can achieve reasonable agreement on which sentences in legal judgements contain cited facts and principles (respectively, K = 0:65 and K= 0:95 for inter- and intra-annotator agreement)”. This human comparison forms their ‘gold standard’, the best achievable human classification of relevant facts and law on the cases.

 

“We further demonstrate that it is feasible to automatically annotate sentences containing such legal facts and principles in a supervised machine learning framework based on linguistic features, reporting per category precision [facts or principles identified as relevant were correct] and recall figures [not missing relevant facts or principles] of between 0.79 and 0.89 for classifying sentences in legal judgements as cited facts, principles or neither using a Bayesian classifier, with an overall j of 0.72 with the human-annotated gold standard.” It looks pretty accurate, in other words; not perfect but good. Like humans.

 

The test was performed on 50 common law reports taken from BAILII on civil matters, mainly contract, trust and property law cases.

 

As a result, they conclude, “it is feasible to automatically annotate sentences containing such legal facts and principles to a high standard. The reported studies lay the basis for further applications, including creation of meta-data for search and retrieval purposes, compilation of automated case treatment tables containing summaries about legal principles and material facts of cases, and automated analysis of reasoning patterns and consistency applied in legal argumentation.”

In this way if we see, “determining the authority of a case required a strong grasp of precedent and legal analysis” and finding precedential information as, “‘buried in the sea of irrelevant information” where , “…appellate court decisions are rife with disagreements between the judges on what the law is.” Then, inspite of these concerns, machines can be programmed to learn the task well, even before we consider the efficiency gains of the machines having the potential to do this on large volumes of case law. How do they do it?

 

They seek to tie, “specific statements of legal principles and evidence to citations within decisions” through what they call, “argumentation zoning” to isolate, “the argumentation used by the author of that paper or judgement.” These arguments can often, they think, be identified linguistically; “a legal principle can, for instance, be indicated by deontic modality, e.g. expressions of must for obligation, must not for..” Principles are, we might be unsurprised to learn, typically stated in the present tense, and facts in the past tense. Certain verbs and verb tenses were potential signifiers; as were, “word pairs that are grammatically linked”; length of the sentence; the position of certain words in the text; and there was a citation in the sentence. Collectively, these factors contributed to accurately being able to identify the facts and principles which (it appears) made up the core of the judgment.

 

One final comment from the author on its utility:

 

“This functionality could, for example, allow a legal practitioner to not only search, say in Google, for citations mentioned in a case, but also the associated legal principles and facts, providing deep access to and insight into the development of the law. It would also offer the opportunity to access the law directly rather than via the edited and structured materials made available by legal service providers.

 

I should add some notes of caution. The author’s acknowledge there are limitations and weaknesses to the approach. For example the system may systematically miss legal principles which are ”active” in reasoning, but need to be, “inferred from the text.” It seemed to me that the amount of text that makes its way into the relevant facts and principles is a reasonably sizeable proportion of the case (from the article it looks like the relevant facts and laws might make up about a third of the case judgment – as was the case for the human annotators). The system does not order or explain the judgment it simply extracts (most of) the relevant information. It’s a step towards being able to extract the reasoning from cases.

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* Yep, I know the natural response is who cares? But if you like a bit of hype bashing read this and make up your own mind – to my mind it does not matter if something can be called a robot for the titlation of our legal press, it matters whether the product better meets a need. The blog post linked to contains interesting thoughts on that too.

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The Bread Knife of Legal Reasoning

A casual tweet of mine about the Oxford vs Cambridge stabbing story gained unusual prominence (for a tweet of mine) and most of the people I have bumped into have wanted to talk about it. The story of the judge giving the student a second chance captured the imagination, or prejudices, of a great number of people it seems. The guts of the story are here from the Guardian story linked above:

Aspiring heart surgeon Lavinia Woodward, 24, punched and stabbed her boyfriend during an alcohol-and-drug-fuelled row at Christ Church College. She admitted unlawfully wounding the Cambridge University student, who she met on the dating app Tinder.

Judge Ian Pringle QC, sitting at Oxford crown court, said he would take an “exceptional” course and defer sentence for four months, hinting that Woodward will not be jailed because of her talent. “It seems to me that if this was a one-off, a complete one-off, to prevent this extraordinary able young lady from not following her long-held desire to enter the profession she wishes to would be a sentence which would be too severe,” he said.

A typically careful, lawyerly response to the story was posted by @secretbarrister. You can read it here and the comments are worth a look. It carefully rehearses why, on the facts as known, it is probably within the judges powers to order a suspended sentence once the judge actually comes to sentence the defendant (the sentencing has been deferred, for reasons which that post similarly explains).

Whilst the post admits that acting within the sentencing guidelines (when it happens) does not necessarily mean the sentence would be untainted by biases, I can’t help think that Secret did protest a little too much when arguing that, “Mercury scoots in with a message of justice gone wrong”. The Guardian produced what looks like a fairly straight reporting of the story, for instance. The judge himself said the case was exceptional, and –if accurately reported – also offered the defendant’s continued medical career as justification even though the defendant’s counsel acknowledged that her conviction would probably prevent that. Of course, it may be right that the Guardian picked this story up because the student was attractive, or a member of the elite caste, but it is also possible – given what we know about human decision-making – that the judge was similarly influenced by those or by the other social signifiers in the case. As Secret Barrister makes clear, we do not know what really influenced the judge but what we perhaps ought to acknowledge is, that however one tells it – it is a bloody good story.

My point is that defending the judge as potentially acting within the guidelines is really a rather minimalistic defence. Patting an irritated public on the head and saying, you don’t understand the law sweetypops doesn’t get you very far. That irritated public might not unfairly interpret that as saying, so potentially the law does not prevent these kinds of biases flourishing? Reason giving in accordance with rules is not much of a restraint in cases such as this: the factors at play are too malleable. We simply do not know, as Secret acknowledges, what impacted on the judge here. The law does not actually help much, if at all, with the central question this case raises.

Interestingly enough social scientists have from time to time studied sentencing and when they do they have tended to show evidence supporting the kinds of concern which Secret is trying to half-rebut here (class biases, race biases). The best study of its kind that I am aware of was Roger Hood’s on Race and Sentencing. It suggested, but of course could never prove, at least indirect discrimination in sentencing decisions. The senior judges went a little beserk, I am told, on being handed the handed evidence. When QASA was being considered, judges were going to assess advocates and I suggested that such judgments should be monitored carefully and – if possible – quantitatively to keep an eye on the quality of those decisions. It met with outrage in some judicial quarters and I lost the argument on the basis that it was inappropriate to subject to judgments of this kind because it would undermine their independence, and respect in them. All I will say about that is sometimes judges are a little bit Trumpian, albeit in a refined kind of way, about criticism. The decisions could be moderated it was argued. Data on their judgments risked undermining their independence (scrutiny of advocates did not). Moderation meant decisions could be reviewed and reasons could be given as to why the original judgements were okay (or not). The key question that everyone would have asked had the system gone ahead, and especially the advocates would have asked, and with good cause, would be who were the moderators? Not, will the judges be able to justify their decisions within the rules.

So my point is this, in the absence of a better evidence base, it is perfectly proper to raise questions about judgements such as these with evidence, and it is perfectly proper to rebut such questions with evidence; but seeking to neutralise arguments on the basis that the law has been followed is not much help, especially where it is not being alleged that the law has not been followed. It’s the discretion that is the issue here, and how it is applied.


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Privilege Appeal

Mrs Justice Andrews has set the cat amongst the practitioner pigeons on legal professional privilege with her judgment in the ENRC case (SFO v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB).) ENRC have announced an intention to appeal, and the judgment does seem to raise quite a few appealable issues.

Herbert Smith Freehills have done a very decent job of summarizing the case here. In the broadest terms, the question was whether documents created by or for an investigation by solicitors (and others) in response to allegations that ENRC had been involved in bribery in Kazakhstan and Africa where protected by legal professional privilege. Initially, these investigations began before the SFO had heard of the allegations, but ENRC wanted to be ready should they mount a dawn raid and decide to investigate. There were claims of litigation privilege and advice privilege depending on the documents and the circumstances of their creation. You’ll all know already (won’t you) that advice privilege only extends to communications between lawyers and their clients (other rules apply, but essentially when the dominant purpose of the communications is for the giving of advice) and litigation privilege only applies between lawyers, clients and third parties where litigation is imminent (again other rules apply, I’m keeping it simple for now because I can’t remember those rules either):

HSF says that the High Court decision takes a restrictive approach to both litigation privilege and legal advice privilege. Judge Andrews says she is just applying the existing rules on privilege and that she is thus not extending the rules of privilege. I’m not so interested in whether it is an extension or business as usual, although HSF’s framing of it in this way does indicate the way the profession seems to approach the issue of legal professional privilege generally which is to thrash about with a foaming mouth if absolutely anything that they say or do, and particularly anything they take the trouble of putting down in writing on a file, is not protected from any scrutiny whatsoever. I’m exaggerating, of course, and HSF, in particular, are restrained in their comments. Indeed, in fact I have some sympathy with some of the anxieties that this judgment raises. The judgment needs careful and balanced consideration. The appeal will provide an opportunity, perhaps, to really start to thrash out some of the problems with privilege (and investigations) which Lord Neuberger touched upon, unsatisfactorily in my view, a year and more ago, but I want to begin (this is a very preliminary view) to mount a general defence of the ENRC judgment.

Let me use HSFs summary as a framework to give you a feel for what the court decided (I am quoting or paraphrasing from their blog unless it is in square brackets during these bullet points):

  • litigation was not in reasonable contemplation (so the first limb of the test for litigation privilege was not met) even though a criminal investigation by the SFO was reasonably contemplated [to be fair, the SFO had not even begun to investigate for much of the relevant period, so this finding is quite reasonable on the facts]
  • it is likely to be easier to establish that litigation is in reasonable contemplation in the context of civil proceedings than criminal proceedings [essentially because commercial opponents are likely to issue in circumstances where a sensible prosecutor would not]
  • Only a prosecution, not an investigation, amounts to “litigation” for the purposes of litigation privilege, and the contemplation of a criminal investigation does not necessarily equate to the contemplation of a prosecution. Prosecution only becomes a real prospect once it is discovered there is some truth in the allegations, or at least some material to support them [I suspect that it is harder than this to trigger the test and find litigation was in contemplation but it doesn’t much matter for now].
  • In any event, the court found that the primary purpose of the documents (which were produced for an investigation, were, “to find out if there was any truth in allegations made by a whistleblower and (if there was) to decide what to do about it. [The documents were not thus prepared for litigation anyway and Mrs Justice Andrews made something of the fact some of the documents were produced to be shared with the SFO and in those circumstances they cannot be privileged either].
  • Obtaining advice in relation to a criminal investigation so as to minimise the risk of it happening would not mean the documents were covered by litigation privilege.
  • Advising on and preparing for the settlement of litigation once it is in train is covered by litigation privilege but legal advice as to how best to avoid contemplated litigation is not. [HSF make quite a point of this difference between prevention and settlement “This seems a fine distinction, and an arbitrary one, which may give rise to significant problems in practice,” they say but we should recall that the advice would be protected by legal advice privilege, it is communication with third parties which is important here for litigation privilege].
  • Legal advice privilege only extended to communications with the client and [consistent with the recent RBS case], lawyers’ notes of interviews with their clients’ employees were not privileged because there was no evidence that the interviewees were authorised to seek and receive legal advice on behalf of the client company. A company giving permission for its employees to talk to a lawyer cannot claim that conversation is privileged unless the employee is the person (or one of the persons) instructing the lawyer for the company. [Privilege is only for the Captains not the cabin boys might be one interpretation, but this is really about ensuring that there is really a nexus between privilege and advice giving – whether this is the right way of going about it is moot].
  • The court also rejected an argument that the lawyers’ notes were privileged on the basis that they were lawyers’ working papers, endorsing the decision in RBS that lawyers’ working papers are privileged only if they would betray the trend of the legal advice.
  • A lawyer’s summary of the facts would be privileged if it is part of the continuum of communications between solicitor and client for the purpose of giving or receiving legal advice.
  • Communications with individuals who are qualified lawyers but are not employed in a legal role, even if they are in fact giving legal advice, are not privileged. Here privilege was denied to advice given by ENRC’s Head of Mergers and Acquisitions, even though he was a qualified lawyer, had previously been ENRC’s General Counsel, and subsequently reverted to that role.

Now put like that, the law of privilege looks a bit of a mess does it not? Yet, as the learned judge makes plain she is deciding the case on the basis of existing law and, she thinks (and my initial analysis would be to agree) consistent with the principal policy justifications offered for privilege in the case law. In broad terms, although the courts would not put it like this I don’t think, one can tell one’s story to a lawyer frankly and get advice protected by privilege if one is that lawyer’s client, and one prepare one’s case with the benefit of a lawyer and get privilege, but until a case is imminent one cannot use lawyers to help one prepare the facts of the future case (should it arise) with the benefit of privilege. Keen observers will have noted the Director of the SFO complaining about lawyers trampling over crime scenes through the conduct of such investigations and those of longer memory might remember British American Tobacco, where the tobacco company sought to protect its spring cleaning of documentation which showed they knew a lot about the ill effects of tobacco prior to litigation (which the court found was not yet in contemplation). The reason was pretty simple, although again the court did not put it in these terms: you cannot manage evidence (including destroying it) and claim litigation is imminent, because you would be perverting the course of justice in so doing. The courts use the temporal proximity of litigation as a prophylactic against such naughtiness.

We do not have a suggestion of such extremes in this case, as I read it, but one factor which I would suggest weighed heavily on the judges mind, and to which the bullet points above did not pay regard, was that the ENRC investigation was instigated with a view to forestalling an SFO investigation (or prosecution) and their lawyer (from a firm they subsequently fell out with) was in negotiations with the SFO towards the latter stages of the investigations on the basis that they were conducting investigations, the SFO should not launch an investigation, and ENRC would share the product of those investigations with them. ENRC could not be pro the having of cake and pro the eating of it. Furthermore, the SFO’s policy on investigations, which changed during the ENRC cases, is to look for self-reporting and maximum cooperation from potential defendants with which it engages. One cannot say one is cooperating fully and then pull the rug by saying all the material you were going to show by way of cooperation is privileged. One cannot be cooperating a bit, depending on what one finds out, and then withdraw that cooperation. One has to decide whether one is really cooperating or not.

So there might very well be good reasons for taking the line the judge did. There might also be problems too though. Let me deal with one that occurs to me:

  1. Imagine you are a corporate that knows full well it has, how shall I put it? “a high risk appetite in the Caucuses” And that you become aware that employee X is getting really hacked off with the Board and is likely to start leaking to the press, or the SFO, or both. Imagine you put in place an immediate investigation instructing a reputable firm of solicitors to investigate. Those investigations are more likely, under the bullet points above, to attract privilege because the SFO are highly likely to investigate and highly likely to prosecute, assuming they are successful in their investigation. It seems at first blush to offer more protection to the bad man corporate than the good, because only the bad man gets privilege, but that is contingent on a) the courts agreeing that the prosecution was really imminent (I agree it is more likely they would than in the facts as they were on ENRC. But that does not mean they will); and, b) it treats privilege as the central issue when what is really the central issue is more complicated, hence…
  2. The same company that is more likely to be able to claim privilege is less likely to be able to claim and demonstrate full cooperation. This might go to the eventual punishment it would be likely to receive and to its ability to mount defences – reputational or legal – that it took all reasonable steps to manage for, and tackle problems, when they became apparent. Also, there may be other reputational needs to attend to, like showing they are a well-run company.
  3. The only other benefit I can forsee is that the investigation genuinely does muck up the crime scene for the investigators and so makes it more genuinely difficult to prosecute. This depends a bit on the competence and ethicality of those conducting the investigation; an area where some lawyers have not always covered themselves in glory. Investigations can be managed for inappropriateness. Interestingly, only the SFO has made that argument though and they brought the ENRC case, and presumably takes the view that this is a risk worth taking. We may find out soon if the Court of Appeal agrees.

So, whilst I think there are lots of points to argue about in the ENRC judgment, and I have just scratched the surface here, I am not immediately persuaded that the criticism that is coming Mrs Justice Andrews way will be justified. Let me focus for a moment on the question of lawyers talking to other employees. Let us assume a company virtuous in intent, but somewhat lacking in competence and understanding of how it is running itself. On receiving news of a potential bribery problem it decides to find out more. Should involving a lawyer in that finding out elevate the secrecy with which that finding out is shrouded? Does that put them at an advantage over those who were more on the ball but are tackling the problem? The claim is that employee witnesses should have the protection of privilege to enable them to make a clean breast of it to the Company’s lawyer. But that privilege is the Company’s, it can be waived by the business and so the protection is not worth a lot – giving an employee witness apparent privilege may actively mislead them, and giving them nonwaivable privilege may put the lawyer in a conflict situation with the witness and the company. Put another way, and dealing with litigation privilege, litigation privilege is there to protect the production of the brief, it is not there to shroud the runnings of the company in watertight secrecy just because they pay outside lawyers to do their compliance and audit work. Corporate clients have to make a choice, and looking at privilege in the way the ENRC case does makes that choice a serious one, but also a real one. It is not a choice to be made just to test the waters, or the prosecutor’s mettle.

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Wasted cost risks for ‘consultant’ advocates

A footnote, perhaps, in the ongoing debate about the boundaries between regulated advocates and litigators and the Others arises from a case drawn to my attention by Jamie Anderson (THANK YOU!). In the employment tribunal a judge makes a wasted costs award against a consultant (actually a struck-off solicitor) who failed to correct the impression of his client that he was representing her as her solicitor. The judge is concerned, I think, by the way in which his role as legal advisor might imply he is a solicitor, but also – most specifically – by the client indicating by email that she thinks he is a solicitor and him not correcting her.

He is apparently regulated by the Claims Management regulator. For me the question posed should also be, should there be an obligation on struck-off solicitors to advise their clients (and employers) that they were struck off? Whilst I do not doubt that striking off is a significant detriment, being able to then set up as an employment law consultant, take money on account of costs, and use a ‘I will charge you in the way most economically beneficial to me way’ fee agreement (as this consultant did), poses significant risks to consumers. It’ll be interesting to see if/how the Claims Management regulator acts and – indeed – if they knew this man had been struck off.

Whilst I do not doubt that striking off is a significant detriment, it is not such a serious punishment if one can set up in an unregulated, or de-regulated sphere of practice. Being able to then set up as an employment law consultant, take money on account of costs, and use a ‘I will charge you in the way most economically beneficial to me way’ fee agreement (as this consultant did), pose significant risks to consumers. It’ll be interesting to see if/how the Claims Management regulator acts and – indeed – if they knew this man had been struck off.

Here’s a key passage from the case:

30 The question for me is essentially whether Mr Oliver has acted either by omission or otherwise in such a way as is unreasonable, or improper within the language of rule 80(1)(a).

31 In my judgment the facts in this case sadly disclose that the unreasonable action threshold has been crossed. I say that for a number of reasons as follows.

32 The entering into a retainer for potentially incurring a large legal bill, in whatever form, is a matter not to be entered into lightly by lay and private individuals. In order to do so it is reasonable for them to have basic information and for that information to be comprehensible to lay parties.

33 I accepted Mrs Gooding’s evidence that she did not in fact know that Mr Oliver was not a solicitor on the roll, nor indeed insured and regulated as such, until it became apparent during the course of the hearing in August last year because I had identified that. He told me that he always identifies himself as a consultant on attendance sheets at the Tribunal, which is entirely proper: in doing so he informs both the Tribunal and the ushers that he attends and represents not in the capacity of either counsel or solicitor.

34 The subtlety of that information is not navigable to a lay client unless it is explicitly communicated. The use of the trade name “Robin Oliver Legal” and the use of e-mail and text communication with a letterhead that repeats simply that trade name and regulation by the Claims Management Regulator, is not such as to convey to a lay client that there is a difference between the individual advisor’s capacity and that of a solicitor. That is the starting point in this case.

35 The matter is then made worse by the exchanges about the retainer and that the draft retainer letter itself contains no description of the capacity in which Mr Oliver would appear as advocate or otherwise during the course of the proceedings. In this particular case a final retainer was not signed or sent, and the terms as to fees being incurred were only those set out in the e-mail.

36 Mrs Gooding confirmed her willingness to proceed on the terms as she had understood them. Implicit in those terms as she understood them, and as a result of the failure to make it clear that Mr Oliver did not act as a solicitor, was his capacity as her solicitor.

37 That was despite the e-mail signature deployed by Mr Oliver, or rather because of it, containing no appropriate information as to his capacity. Her genuine belief is evidenced by her question to him on 30 January which could not have been clearer, “In your capacity as my solicitor are you able to request them?” in reference to documents. The reply to that e-mail was woefully silent as to the capacity in which Mr Oliver acted and he failed to advise the claimant in reply that he did not and could not act as her solicitor.

38 I also take into account that the claimant’s circumstances included the wish to assert constructive dismissal, which often involves complex facts, and it is not a matter which lay people undertake with potential considerable cost, lightly. It was an unreasonable omission in my judgment for Mr Oliver not to make Mrs Gooding aware that he acted and practiced not in the capacity as a solicitor, nor regulated by the Solicitors Regulations Authority in these circumstances. I am satisfied that the omission on February 2 2016 was a cause of the claimant incurring costs going forward.

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