Lord Hoffmann and the Smoking Gun

So (h/t Gregg Callus) there is a very interesting story in the Scotsman about potential impending tobacco litigation.  Philip Morris wants, we are told, to claim £11bn for the forthcoming requirements that death sticks have to be sold in plain packaging with pictures of cancerous growths on them.  I resist the urge to make this a compensation culture, human rights gone mad story because the story appears to be as least partially true.  Here are some excerpts from the report:

'Karl' Marx: Property is theft. Smoking related trademark infringement on the other hand...

‘Karl’ Marx: Property is theft. Smoking related trademark infringement is billion dollar larceny

TOBACCO giant Philip Morris is to launch the biggest corporate compensation case in history against the UK and Scottish Governments over the decision to impose plain packaging on cigarettes….

Legal advice from former Advocate General of Scotland Lord Davidson of Glen Clova and retired judge Lord Hoffman says the policy breaches international law on image rights and the Human Rights Act.

…Papers seen by The Scotsman show that Lords Hoffman and Davidson consider that trademarks are protected under European law and forced removal of them is a “deprivation of property” and breach of Article 1, Protocol 1 of the European Court of Human Rights, and Article 17 of the EU Charter of Fundamental Rights, both of which apply in Scotland and England.

Now this is quite a carefully worded passage intended to convey the impression that their Lordships have advised that the tobacco litigation will succeed, which their advice may not in fact say.  The passage after the one that is paraphrased may have a massive great big lawyers BUT in it: “Even were the trademark infringement argument to succeed… [followed by a long list of reasons why Philip Morris and their ilk will fail”.

However that is not what interests me for the present.  What interests me for the present is whether Lord Hoffmann should have advised at all (assuming the report is correct).  By the marvel that is twitter, I am indebted to the former Court of Appeal judge, Sir Henry Brooke, who pointed towards para. 9.1 of the Guide to Judicial Conduct 2013  (although para. 9.2 may also be relevant):

9.1 The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/ mediator and may receive remuneration for lectures, talks or articles.

9.2 Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.

On the face of it, there is a potential breach of para. 9.1 if Lord Hoffmann advised in the course of private practice as a barrister.   Lord Hoffman appears to still practice as a mediator and arbitrator through Brick Court Chambers.  I suppose we could wonder whether his advice was given as a barrister or in some other capacity?  He is providing exactly the sort of services 9.1. appears to want to preclude and whether he is formally doing that as a barrister or not is (I think) immaterial really: it’s his status as a former Law Lord which is crucial not whether he is now practising as a barrister or not.  Another possibility is that Lord Hoffmann is not, or does not feel, bound by the Guide (he retired from the highest court in 2009, I believe and I do know what rules (if these are indeed rules) was in place then.  May be that provides a somewhat inglorious excuse.  Or perhaps he advised big tobacco pro bono in his capacity as a private citizen, rather than (and here I am merely being mischievous) on a no win no fee basis.

I’ll leave it to others to debate the application of para. 9.2. but I do want to say this.  There is a way of writing an opinion so that it gives clients as much comfort as possible on their case.  Legal aid opinions were one such area where, many years ago, I was told by a really rather senior barristers how the language could be finessed to get a case with very (very) modest prospects of success through a (then much looser) legal aid merits test.  These hired gun opinions are even more dangerous when they are to be used for PR purposes. Now of course, as I have noted, we do not have all of the opinion given here (if indeed an opinion was in fact given or given in writing) and we have even less reason, for now at least, to think any of the lawyers involved knew the opinion would be used for publicity purposes (something the Bar recently permitted).  Any opinion may have been selectively or inaccurately reported.  Whether that is true or not is important but in some ways irrelevant: the potential for abuse is significant and it illustrates the perils rather nicely of the retired, senior judiciary being willing to take up an advisory role in any capacity that they relinquished on joining the bench, particularly if they are to be wheeled out by private interests in matters of such public controversy.  Perhaps there should be a rule against it, and perhaps we should call it Rule 9.1.

……

Postscript

There is some more background to the debate here. The view of the Judicial Council would have been given when Hoffmann was still on the bench.  http://royaldutchshellplc.com/2007/11/05/legal-week-straw-will-not-let-judges-return-to-private-practice-see-footnote-relating-to-mr-justice-laddie-judge-for-the-shelldonovan-trial/ 
h/t Jeremy Hopkins to pointing to this which is either a previous similar opinion or the opinion referred to http://ift.tt/1Gv8ghQ

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A right to be understood?

Following up on yesterday’s post where I got to trot out a minor interest in readability scores, I saw this on twitter (courtesy of Prof Ed Cape) about whether rights to remain silent are understood.  You can read it here on the Open Society Foundation’s website. Here’s an excerpt, but the whole thing is not long and well worth a read.

A study in the United States evaluating police officers’ recitations of arrest rights revealed that the level of comprehension required to understand the rights varied from a 4th grade reading level to a college reading level. However, according to the National Adult Literacy Survey, 70% of inmates have the equivalent of a 6th grade reading level or lower. In other words, the recitation of rights upon arrest may be beyond the comprehension of the average arrestee.

In Hong Kong, a survey of customs officers who combat crime at the border revealed that 55% did not understand the right to remain silent as a protection against self-incrimination. This is a problem, because an officer who does not fully understand the right to remain silent cannot adequately communicate that right to arrestees.

Another study in the United States published by American Psychologistrevealed that 31% of defendants believed that remaining silent in the face of police questioning could be used as incriminating evidence at trial. This misunderstanding can compel individuals to offer information, including incriminating information, for fear that remaining silent will make them seem more culpable, thus completely defeating the purpose of the right to remain silent.

The current method of reciting to arrestees their right to remain silent does not take into account the varying levels of comprehension that different people may have. People who are uneducated, mentally-ill, or intellectually disabled are more likely to come into contact with the justice system; many people are arrested when they are under the influence of drugs or alcohol, all factors which inhibit their ability to understand the rights read by police.

In Canada, the “Operating Mind Test” is used to determine whether arrestees have sufficient cognitive capacity to understand their rights. However, this test looks at whether the warnings provided are comprehensible in theory, rather than whether the arrestee actually understood them. In the 1994 case ofWhittle, the Candian Supreme Court determined that the warnings provided were comprehensible even though the defendant was suffering from schizophrenia and auditory hallucinations. This standard does not take into account the physiological effects of a mental disorder that may impede the ability to understand one’s rights. The Whittle decision has made it more likely that people who do not understand their rights will be found guilty.

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Warning signs: Who’s to blame when commoditised legal services go wrong?

The recent Court of Appeal decision in Proctor v Raleys [2015] EWCA Civ 400 raises the interesting question as to whether commoditisation of legal services, which may lead to cheaper more accessible justice for consumers, should be held to the same professional standards as lawyers providing services in a more traditional manner.  Put like that, the answer seems to be a plain yes, though I am tempted to complicate the case by suggesting that, as long as consumers understand that ‘commoditised’ services are a riskier proposition (if indeed they are a riskier proposition) , then a market for legal services might very sensibly allow a lower standard of service to be provided.  There are signs in the research on wills and online divorce that consumers have something of a grasp of this, but I would not say it was a good grasp (yet).

In this case a personal injury claimant had a relatively straightforward claim for compensation which he pursued with a firm (Raley’s) who tended to use questionnaires and standard form letters to communicate with their clients.  These letters were long and gave the Court of Appeal (Tomlinson LJ gave the judgment) concerns about being misleading in that they failed to describe ‘service claims’ in a way that was clear.

For whatever reason, the claimant did not make a claim for ‘services’ (the cost of having to get someone to do his own gardening etc.) when it seems he would likely have succeeded.  There were a number of warning signs (especially in his medical evidence) that he might be able to make such a claim but because the claimant did not tick the relevant box saying he wanted to make a services claim Raley’s assumed he did not want to make that claim.  Subsequently, having accepted an offer settling the claim without making a service claim (and having definitely turned down another element of the claim he might have made which would have delayed his settelemnt) he decided to sue Raley’s for negligence.

The case provides something of a lesson in how the evolution of legal case management systems needs to be adaptive to the humans it works with.  Raley’s clearly did try and adapt (they seem to have picked up the potential claim but were not able to say they spoke to the claimant about the point either in person or on the phone). They could point to three long standard letters where the potential to make the claim was explained  to the claimant but that was not enough.

It is worth observing that not only were these letters pretty long, but using the Flesch–Kincaid readability score (which I did on the third letter) the letter did not fall into the category easily readable by a 13-15 year old using this test.  According to the Wikipedia page on this test, insurance policies in the US are required to be written to something like this standard.  Also the letter got a similar readability score to Moby Dick (although it was of course shorter).  I don’t know about you, dear reader, but I’ve put Moby Dick down at Chapter One more than once.

Because the judge at first instance did not accept that the letters were misleading, it was submitted by Counsel for Raleys, “that it was not open to the judge to conclude that the solicitors should have done more to ensure that Mr Procter [the claimant] actually understood the advice he was receiving.”

It is worth observing also that (according to the judge at first instance):

…The Claimant had stated in evidence that his education was limited. Even if the Defendants were not aware of this they could have assumed that most miners were not highly educated. …it was clear from the documents …that the Defendants knew there were risks in accepting information from the clients at face value. …There is some indication from the Defendants records that they were regularly experiencing clients who had not notified them of a potential service initially, but changing their minds at a later stage on receipt of further information.

That evidence suggested the firm had changed its procedures to speak to clients in person or on the telephone when dealing with offers because, “more clients made claims for services if they actually spoke to the lawyer directly about the issue either in person or on the telephone.”  Given a series of warning signs that the client might have such a claim, the guts of Tomlinson LJ ‘s judgment is as follows:

In my judgment the situation here cried out for a short discussion with the client, preferably face to face, but if necessary over the telephone, in order to ensure that the client understood the circumstances in which a claim for [services] could be made. … [As calls were had with the client this could easily have been discussed]

I would add that, on the assumption that the client was responsible for payment of the solicitors’ fees, taking up the point in the course of these telephone conversations would have been likely to increase the cost to the client by only a trifling amount, if anything. At the hearing I was under the impression that Mr Procter had himself been responsible for Raleys’ fixed fees, and that Raleys would receive a fee in respect of advice concerning a services claim only in the event of a successful claim under that head. Closer perusal of the documents subsequent to the hearing leads me to wonder whether Mr Procter in fact had any potential liability for Raleys’ fees, as the documents seem to suggest that the relevant fees were paid to Raleys by IRISC. For the avoidance of doubt however I reject the notion that a solicitor should feel inhibited from ensuring that his client has understood advice given to him by the consideration that so ensuring might generate a further fee payable by the client.

Whilst it is clear that Tomlinson LJ is suggesting that the solicitors cannot resist the idea that a client cannot be advised in person (or on the telephone) on an economic basis, and that they must so advise the client, in person or on the phone where the facts demand it, he is also doing so in circumstances where he can see that Raleys’ could readily adapt.  It seems to me the judges may have been influenced also by the uncertainty over who had conduct of the file, although they do not say so explicitly.  The judges also were plainly influenced by the series of warning signs that the Claimant probably did have a services claim and had not explicitly declined the opportunity to pursue it.  Tomlinson LJ returns to the commoditisation point:

…Mr Pooles drew to our attention the difficulties posed for solicitors in modern conditions, where financial constraints may require them to “commoditise” their advice to potential claimants. …The circumstances in which a claim for services could be made were not complex but as I have already pointed out not entirely straightforward. These letters in my view signally failed to give a clear exposition [on the services claim] …Furthermore, whatever may be the practical and economic constraints in conducting face to face meetings or telephone discussions with clients in claims handling of this nature, it is apparent that in this case there were at least two opportunities to give, without significant additional cost, a straightforward exposition …It is to the solicitors’ credit that their system did generate internal reference to these very matters. To impose liability for the failure to follow up the issues flagged in this way does not, to my mind, involve the imposition of an unrealistic standard. The solicitors were dealing with a client who could fairly be regarded as unsophisticated in the relevant field. The written advice given to him was unclear, and there were clear indications that it may not have been understood. It is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.

To my mind, this passage is important.  What is being shown here is a system that is not, for a certain class of clients, effective; that Raley’s knew they had a problem; and, that they failed to deal with it adequately.  An attempt to pass the system’s inadequacy back onto the client failed and responsibility remained with the professional service provider.  I think that is a good thing.  Of course, there is a potential for injustice if the claimant had understood he was turning down a service claim, but that is a risk which Raley’s can adopt to – apparently relatively cheaply- by having a better system.  The interesting question will be whether other cases provide a better contrast between a rough and ready system which it would genuinely not be economic to run the other way. Tomlinson’s judgment seems to me to leave that question open, whilst leaning towards the view that lawyers’ will not easily push responability for errors back onto clients.  Of course, such claims will not generally be brought, as rough and ready systems are likely to apply to minor cases, but it’s not impossible.

One further point is worth noting.  Lawyers are not always notoriously brilliant communicators with lay clients. Traditional legal service providers might get an easier ride if they have had a meeting with a client and given them a muddled explanation of a services claim which a client then fails to pursue.  In such a case, the commoditisers might be subject to higher standards: the judge is forcing on them something of a requirement to develop systems that clients genuinely understand.  Whilst I do not think the courts should close their minds to the argument that rougher justice may be necessary to make some types of case economic, they probably should resist for now attempts to shift the blame for negligence claims onto clients not filling in convoluted forms properly.

—-Postscript

Gordon Exall has written an interesting piece on his excellent blog on the commoditisation argument which I think is important context.He says this:

The “economics” of the situation makes for interesting reading.

According to the Mellor Hargreave’s Blog

“The fee income of Raleys as a result of handling these claims under the compensation scheme, which also included a scheme for respiratory disease illness, rose between 1999 and 2003 from £2.5 million to £15.7 million and £11.8 million for 2004. Mr Firth and Mr Barber the two senior equity partners took respectively as their share of the profit for the years 2003, 2004 and 2005 a total of £9.9 million and £7.2 million.”

…Far be it for me to ponder on the economics of running a practice. However it appears likely that, for a tiny smidgeon, of that amount it would have been possible to hire at least one (and possibly several) fully qualified lawyers whose sole task was to explain settlements  and offers personally to clients and ensure that the client understood what they could claim for. If I have misunderstood this I am sure that there is an accountant or solicitor out there who can put me right.

I too perused the Mellor Hargreaves blog and it says this:

Raleys handled in excess of 12,000 claims under the scheme. It is understood that in the region of 63% of the miners qualified to claim for services, yet this defendant only claimed for 20% of those. Notwithstanding the fact they submitted to the court this claim would not have been successful, their own statistics suggest that 97.2% of those claims submitted, were in fact successful.

If they are right, and I must emphasise it is an if, then the question raised is whether Raley’s undersettled a raft of cases and whether that undersettlement was caused by the design of their system?

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What makes tax lawyers morally limited?

I find the psychology of professional ethics endlessly fascinating. Take this piece by Elaine Doyle, Jane Frecknall Hughes and Barbara Summers (2013) An Empirical Analysis of the Ethical Reasoning of Tax Practitioners, J Bus Ethics (2013) 114:325–339 DOI 10.1007/s10551-012-1347-x (open access here), which I thank Iain Campbell for mentioning to me.  The researchers used Rest’s original Defining Issues Test (and a tax specific version) to compare the moral reasoning of Irish tax practitioners and a control group of non-tax specialists.

They find that:

(i) tax practitioners generally reason at lower levels in tax contexts than in social scenarios (i.e. they can be moral, just not in tax situations);

(ii) that the professions do not appear to attract people who reason at lower levels (i.e. tax does not, on the evidence here, attract bad apples); and

(iii) that practitioners appear to be affected by training/socialization in their professional context (in particular tax practitioners in private practice demonstrate lower levels of moral reasoning than practitioners working for the Irish revenue service).

 The research is based on Rest’s well known six stages of moral reasoning:

1. The morality of obedience: do what you are told

2. The morality of instrumental egoism and simple exchange: let’s make a deal

3. The morality of interpersonal concordance: be considerate, nice and kind: you’ll make friends

4. The morality of law and duty to the social order: everyone in society is obligated to and protected by the law

5. The morality of consensus-building procedures: you are obligated by the arrangements that are agreed to by due process procedures

6. The morality of non-arbitrary social cooperation: morality is defined by how rational and impartial people would ideally organize cooperation.

The higher up the scale, the higher the level of moral reasoning that is applied by the subject of the test.  On a quick read of the paper the authors seem particularly concerned with accountants (who we are told to expect may already be prone to, “a lower level of moral reasoning than would be expected, given their age and education” based on other research).  Similarly, “auditors and accounting students… [appear to] apply a more principled level of reasoning to resolve social dilemmas than to resolve moral dilemmas in accounting or auditing.”  However, their study is on tax practitioners and this its seems may include lawyers, accountants and possibly others.

…The research instrument was administered to 384 tax practitioners and 306 non-specialists in Ireland in 2009 using a combination of random, convenience, and snowball sampling techniques.

What did they find?

The fact that tax practitioners do not reason significantly differently from non-specialists in the social context sug­gests that individuals whose reasoning is less principled than the norm (as measured by the non-specialist control group) are not self-selecting into the tax profession. …Once the context changed to tax, however, differences in moral reasoning were evident, with tax practitioners utilizing significantly lower level moral reasoning than non-specialists who remained con­sistent in their reasoning across both contexts. This dif­ference was substantial in size, with the level of principled moral reasoning being 34 % higher in non-specialists.

An interesting question is whether we (or they) should care.  Are tax practitioners more prone to a a kind of lazy positivism: a client friendly convenient roolz is roolz approach may fit with the architecture of tax law:

This may be driven by the weight tax practitioners give to legal rules in the tax context, of which non-specialists are unaware, but further analysis is needed before any such conclusions could be reached.

The interesting thing is that Revenue practitioners, who are operating in the same legal architecture after all, are rather different:

… Revenue practitioners show a pattern of reasoning that is very similar to non-specialists and their reasoning is not at a significantly different level in either the social or tax contexts. On the basis that Revenue practitioners fulfill a public service role with an emphasis on collecting the maximum tax revenue in accordance with legislation, in order to fund government spending and support society as a whole, this finding is, perhaps, not surprising. The fact that Revenue practitioners reason dif­ferently from private sector practitioners, however, indi­cates that tax knowledge and experience are not what is driving the difference between reasoning in the social and tax contexts for practitioners, as Revenue practitioners also possess tax knowledge and years of experience working in tax. Equally, moving from a social context to a work-related context is not driving the difference, as tax is also the working domain for Revenue practitioners. The results suggest that the differences observed in the reasoning of tax practitioners in the tax domain arise only in a private practice environment. While the results do not identify the reasons for the differences in moral reasoning in a private tax practice domain, the differences found may be due to a socialization effect in private sector tax practice.

A more pithy way of putting this might be that private practitioners in tax become morally inhibited because it pays or because their ethical rules demand that they prioritise the client’s interests over others (that’s not the case in this country but it may be the case in Ireland).  The fascinating question posed by the study (but not answered) is what if anything might be done to redress the problem (if indeed, it is a problem).  To boil it down unfairly: do tax practitioners need training to be more principled or should they be more tightly proscribed by rules?

Finally, if one likes a joke at accountants and tax practitioners’ expense (we’re only human after all), then there’s this little nugget on which I will conclude.  You’ll remember accountants generally scored poorly on moral reasoning in work contexts, well tax practitioners it seems are worse:

……the scores from this study are most comparable with those of average senior high stu­dents and are well below the level of adults in general and college students. These scores are also much lower than the average P scores of accountants found in other studies …

If the study is right, it seems its not the law, but the cultures and rules of private practice that might be dumbing down tax practitioners of Ireland.  Couldn’t be happening here, could it?

 

 

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Legal Risk Study

Readers who have not seen this already might be interested in the executive report from a study I am leading on Legal Risk: Definition, Management, and Ethics. It looks at legal risk practices in large corporates here in the UK.  It can be found on SSRN and UCL’s webpages.

The report raises key questions about the role of in-house lawyers in balancing commercial and professional considerations; the readiness of in-house lawyers for the complex leadership and management tasks involved in legal risk management; and the extent to which professional ethics are embedded within those teams.
KEY FINDINGS INCLUDE:

• There was no shared sense of the correct approach to legal risk.

• The in-housers we spoke to were not always clear or confident about their approach, or the best approach, to legal risk management

• There is a clear divide between those who take a, ‘I know it when I see it’ approach to legal risk and those who deliberately applied systems, foresight, thematic and strategic thinking around legal risk.

• Those interviewees with the most developed systems seemed most likely to see cultural dimensions to legal risk, with some emphasising the need to be authentically committed to the spirit as well as the letter of the law as part of a business commitment to compliance, legality and business ethics.

• There is a need for in-house teams to reflect on the extent to which processes of legal risk engage rigorously in assessment, mitigation, communication, monitoring and overall evaluation of legal risk management. Many of our interviewees did not have well developed approaches to each of these elements of a risk strategy.

• Some aspects of risk management may lead to overconfidence and approaches to mitigation which shift risk from the company to third parties, with the potential to raise questions about the appropriateness of this in certain circumstances.

• There is the potential for risk management to change risk appetite by altering perceptions of, and appetites for, risk. In general, risk management increased the appetite for risk because it increased confidence that risk was both understood and manageable. This opens up for debate the question: is risk management as robust as such confidence suggests?

• Objectivity and independence are necessary for risk assessment to be accurate and useful to the business but are in tension with the pressures on in-house lawyers to be commercial team players. These tensions are both overt and implicit. There are overt pressures and implicit biases at work which may sometimes undermine objectivity.

• Appetite for legal risk involves accepting, even welcoming, tolerance for conduct which may be, or even may be likely to be, unlawful. This is sometimes in tension with the professional obligation to promote the rule of law and the guidance to solicitors that they must treat the public interest in the administration of justice as definitive of conflicts between professional obligations.

• Such tensions also impact on corporate interests: there are relatively recent, serious conduct risk examples of allegations involving lawyers in and/or instructed by Standard Chartered Bank, the News of the World, Barclays, The Times newspaper, BNP Paribas and General Motors.

• The extent and nature of these public interest facing obligations are neither understood, nor well-articulated in professional practice generally, nor in-house practice in particular.

A significantly more detailed academic piece is in train.

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The SDT and the Chamber of Secrets

harry potter

Neither Steven, nor Birmingham Law Library

This is a Guest Post from Steven Vaughan and Julian Webb.  Steven begins…

I am doing some work on the concept of lawyer independence. I’d read the LSA, and the relevant SRA principles and guidance, and searched the SRA website to see where Principle 3 was mentioned. Principle 3 says that a solicitor must, “not allow [his/her] independence to be compromised.”

I’d then gone to look for case law, found an interesting case from the High Court on referral fees (Reed v George Marriott [2009] EWHC 1183 (Admin)) and had the Farooqi case helpfully pointed out to me by Richard Moorhead. He blogged on it here.

I then went to go search rulings by the Solicitors Disciplinary Tribunal. I’d done this for two reasons. First, the vast majority of cases involving alleged, or actual, solicitor misconduct never get appealed (and so aren’t reported in the higher courts). Second, I had seen in the SRA’s recent report on litigator’s duties a reference to a 2004 SDT ruling which mentioned independence (In the matter of Paul Francis Simms, Solicitors Disciplinary Tribunal, 2 Feburary 2004) and wondered if any other rulings had similar dicta.

The SDT website (http://www.solicitorstribunal.org.uk) allows you to search judgements, or you can browse them all in one long list. If you want to search, you can do this by: (i) Case Reference; (ii) Full Name; (iii) Allegation Type (‘Breaches’; ‘Delays’; ‘Account Rules’ etc); (iv) Outcome (‘Fines’; ‘Strike Off’ etc); or (v) Date. What you cannot do is search by keyword. So, I cannot find all the judgements that consider, say, Principle 3, or the term “duty to the court”.

I emailed the SDT to ask for their help. I won’t put their reply below, as I hadn’t said I was going to publish it, but, in effect, they said this was a resources issue. I can see that. In part.

I posted my incredulity about this onto Twitter. Julian Webb was the first to respond. I’ll let him take over here…

…I can’t say I was surprised by Steven’s experience. It echoed my own from a couple of years ago when I started wondering about the uses the SDT has made of professional disrepute in its decisions, and the range of penalties imposed – a topic which, in the absence of more substantial (ie funded) research assistance, I decided to park in the too difficult box, largely because of the limits of search functionality on the website.

To be sure, what we have now is a quantum advance from the days when SDT decisions were only available on request, and, of course, the SDT is not alone. The Register of Disciplinary Action (RODA) in my new home of Victoria is similarly geared to the simplest of category-driven consumer searches. But it is hard to see why text-based and Boolean search functionality, like keyword searching, should be an issue; indeed the Scottish SSDT website already provides it.

Does it matter? It may be objected that this is a real minority concern (I did joke to Steven that we might be the only two people on the planet to consider this a significant problem; I was wrong; in the end there was six of us in the conversation…) and that the SDT is not there to facilitate research. But the issue actually deserves a better response than that, because there is a more fundamental point to be made about the relationship between accessibility of decisions (and in the digital age that must surely imply a certain threshold of functionality), public trust, accountability and education. Indeed, the Tribunal’s own publications policy makes the point for us:

Publishing Judgments is important in ensuring that the Tribunal’s processes are transparent. The content of Judgments assists in Informing and educating users of legal services and the profession. Publication enables the Tribunal’s stakeholders to be reassured that the Tribunal’s decision-making powers are being exercised proportionately and consistently, and that the Tribunal is accountable for its decisions.

These are sentiments with which we concur, but does the SDT really believe its site has the functionality to enable anyone to make assessments of ‘proportionality and consistency’ at anything but a very basic level of comparison?  In the context of increasing concerns about the accountability of professionals, and the historic evidence from a number of jurisdictions of under-enforcement of disciplinary breaches, the point should not be considered purely academic. Now back to Steven for our conclusion….

…In its 2013/2014 Annual Report, the SDT notes a 2013 running cost of £2.1m. Just under £900,000 of this is spent on employment costs. The Legal Services Act 2007 requires that the full cost of funding the SDT comes from a levy on the profession via the annual practising certificate fee. The SDT’s 2013/2014 Annual Report sets out that the proportion of total practising fee income paid to the SDT was 2% in 2013-2014. In 2013, only £9,600 was spent by the SDT on its website. That’s 0.005% of the SDT’s overal running cost. Wouldn’t it be better to spend say, a little less money on employment costs (or AGMs or Training Days or SDT Members’ fees) and a little more on making the website fit for purpose and allowing the law on solicitors’ discipline and punishment to be better known, and more open to proper evaluation?

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Not robots, but cyborgs?

Mark Gould has written a very (very) interesting blog on the human bit of complex systems. His post is on what keeps (inefficient) law firms alive.  It’s well worth reading.

The bit that caught my eye was this which is taken from Richard Cook’s work on comnplex systems:

12) Human practitioners are the adaptable element of complex systems.

Practitioners and first line management actively adapt the system to maximize production and minimize accidents.

And:

17) People continuously create safety.

Failure free operations are the result of activities of people who work to keep the system within the boundaries of tolerable performance. These activities are, for the most part, part of normal operations and superficially straightforward. But because system operations are never trouble free, human practitioner adaptations to changing conditions actually create safety from moment to moment. These adaptations often amount to just the selection of a well-rehearsed routine from a store of available responses; sometimes, however, the adaptations are novel combinations or de novo creations of new approaches.

It struck me as very relevant to the debate about automation in law and the extent to which we can and should move towards systems and automation in law.  The basic lesson I draw is: systems are (or can be) great, but they need human insight and engagement to keep them healthy.

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