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

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

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

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

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

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

What should lawyers be doing?

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

And yet :

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

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

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

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

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

What is expected of businesses?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Does experiential learning in law school improve employability?

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

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

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

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

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

…

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

…

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

And the results of the study?

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

Go figure.

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

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

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

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

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

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

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

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

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

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

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

But there is also a point of substance:

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

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

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

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

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

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

—-13/02/15 Update—-

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

In-house media lawyer heading for the spotlight?

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

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

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

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

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

This raises a whole set of interesting issues:

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

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

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

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

Grabiner is both right and wrong to resist the money question

Lord Grabiner’s cross-examination by the Treasury Select Committee provides an interesting opportunity to reflect on barristers, costs and the influence of money on lawyers.  Jesse Norman MPs cross-examination is a tussle about how the two gentlemen interpret a conversation about market manipulation which is worth watching if you like a bit of sport about social hierarchy and (dis)respect.  Lord Grabiner gets more than a little irritated, justifiably or not you can judge (at the end of the recording).

The cross examination begins (oddly to me) on the subject of Lord Grabiner’s fees. Andrew Tyrie questions him on the size of his fee, and in his own defence Lord Grabiner says (according to the ft and having viewed the early stages of the video): he doesn’t know the size of his fee; that they got a serious discount; and that the tax payer got great value for money.

There is probably a significant element of truth in Lord Grabiner’s characterisation of disinterest but it is worth emphasising:

a) discounts for blue chip clients of the Bank of England sort are granted for mixed reasons – such instructions are signals of eminence that are helpful to the status (and rewards) of lawyers beyond the immediate instructions;

b) it’s a little too convenient that the only thing Lord Grabiner knows about his fee is that there was a ‘serious discount’ and a “cheap deal”, “very atttractive” from the employers perspective. “Take my word for it,” he says and Andrew Tyrie says words to the effect of I don’t think we will we’ll go and have a look.  Lord Grabiner also says (I think), “Barristers don’t get into the grubby world of negotiating their fees… since I have the best clerk in the Temple, I let him get on with it.”

We can see in this exchange something of why it might be convenient to barristers to claim they don’t negotiate fees. Grabiner cannot really say, I know nothing and I only know something which helps me and wax lyrical on how marvellous this is.  It’s a position which invites proper scepticism.

There are two main benefits in having fees negotiated at arms length. One is that the clerks will do a better job of getting higher fees for their barrister, especially when barristers are decent sorts (as I am convincingly assured Lord Grabiner most definitely is).  I’d rather like it if someone who knew markets better than me negotiated for me.

The second is a more public interest benefit.  The practice of law is increasingly valued, measured and publicised in terms of financial success.  Framing professional success or professional status in monetary terms may very well influence professional judgment and do so in harmful ways.  Barristers seem to do this less than solicitors.  Earnings are influential on decisions within chambers, but still the sense is that money talks less strongly at the Bar. That’s a good thing as far as I am concerned – but money still talks. The barristerial conceit about being above the grubby fray is in this sense a good one, as long as the extent to which they portray themselves as above the fray is not exaggerated. A little humility and self-awareness would go a long way to cement a strength rather than undermine it with hyperbole.

Do neophyte lawyers look for intellectual interest?

There’s an interesting story on Legal Week suggesting law students put intellectual stimulation over money in career choice.  I am a bit sceptical.

I ask my students (if they want to be practising lawyers) something like this informally every year, but I also ask them why they think other students want to be lawyers.  I get similar answers to the Legal Week survey but the students also think other students are much more motivated by the money than they are.  Go figure.  It may suggest a difference between stated and actual preferences or tell us something about how law students project their career choices to their fellow students outside the class room.

I think the interesting thing is then to probe them on their assumptions about where the most intellectually stimulating work is.  These students have often done work placements, but their answers to the question how do you know which work is most stimulating are generally weak and unconvincing.  They often have no real idea what the most stimulating work (to them) is or would be.  They assume that the firms high up the league tables provide the most interesting work but cannot really explain why in a cogent fashion.  And they know they have to pretend (and yep folks they generally are pretending) to find business fascinating and (with a certain amount of bemusement) to be commercially aware.

My (unresearched) conclusion is that in reality financial reward and weak assumptions about what will be interesting reinforce each other and that financial reward is what really drives initial career choices both for itself and as a proxy for ‘being the best’ (whatever that might mean in reality).

Guest Post: Litigants in person in private family law cases: Summary by the research team

1. Context (p1-2 of the Report, Litigants in person in private family law cases (Ministry of Justice, 2014): [1])

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 removed most private family cases from the scope of legal aid after April 2013. It was anticipated that the volume and proportion of litigants in person (hereafter LIPs) would increase as a result. The Ministry of Justice commissioned research to explore both the characteristics and support needs of LIPs in private family law cases and their impact on the courts prior to the implementation of legal aid reforms. It was designed to inform policy and practice responses to LIPs following the legal aid changes.

2. Research design (p3-10 and p136-164 of the Report)

The study was designed to develop understanding of the range of litigants in person in private family law cases, their behavioural drivers and support needs, and their impact on the court system. The research was designed as a primarily qualitative study focusing on understanding the range of experiences and perspectives, rather than a quantitative study seeking to measure variables.

The research included three linked studies:

• Intensive Cases Study (ICS). The largest element of the research involved detailed analysis of a sample of 151 cases heard in five courts over a three to four week data collection time frame in each court between January and March 2013. The approach was multi-perspectival, involving observation of the hearing in each case, interviews with the parties and professionals associated with the observed case (subject to consent and availability) and scrutiny of the court file.
• Local Contextual Study (LCS). This involved a series of focus groups in each of the five courts with local stakeholders (judges, lawyers, Cafcass and court staff), interviews and observations with local LIP support organisations and observations of public areas such as court counters and waiting rooms.
• Secondary Analysis Study (SAS). This involved secondary analysis relating to LIPs of two large national datasets from two current studies led by members of the research team.

 

3. Main findings

3.1 Characteristics of LIPs (p11-34 of the Report)

The major reason for self-representation was an inability to afford a lawyer, with only around one quarter of LIPs indicating that their appearance in person was wholly or partially a matter of choice. Over half of the LIPs observed had had legal representation at some stage during the current proceeding and/or in previous family law proceedings.

Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their own or their children’s interests. A wide range of personal vulnerabilities were identified with around half of those observed experiencing one or more vulnerabilities which often added to their difficulties in self-representation and in some cases defeated their attempts to do so. A significant number were also trying to handle quite complex cases.

LIPs may create problems for the courts by reason of non-appearances, refusal to engage with proceedings, or, less often, violent and aggressive behaviour. While non-appearances may be quite common, the reasons for apparent resistance to court proceedings, as for violence and aggression, may often be related to litigants’ vulnerabilities. Unmeritorious and serial applications did not appear to be brought any more often by the LIPs in the sample than by represented parties, although having to respond to these applications was another vulnerability faced by some women LIPs.

3.2 Pre-hearing preparations (p35-51 of the Report)

Much of the work in a family case is conducted before and between hearings rather than in the courtroom itself. The list of tasks to be accomplished in the pre-court and between-hearing phases is quite extensive and technically and practically demanding. The list includes determining legal merits and translating a dispute into legal form; consideration of mediation; making an application using the correct form and filing and serving correctly; possible negotiation with the other side in the waiting room and subsequent handling of the case (e.g. handling disclosure, preparing and filing statements).

The successful completion of these tasks was important for the smooth running of the case and for timely and effective hearings. The extent to which LIPs were able to complete those tasks was highly variable. Understandably, many LIPs struggled with a range of technical tasks, including understanding which application form to use, how to complete it and how to file and serve correctly. Some LIPs faced practical problems such as an inability to access or print out online forms. Many LIPs also did not grasp foundational legal principles or concepts such as the importance of disclosure or the expectation of negotiation or settlement.

A significant part of the problem is that the family justice system and the pre-court processes, procedures and tasks are predicated on a full representation model with two trained and experienced lawyers undertaking all these preparatory tasks. At least at the time of the fieldwork, there had been limited adaptation of processes to support LIPs and instead LIPs were largely required to comply with existing processes. There had been comparatively little adaptation of documentation (forms, guidance, letters from court etc) to meet the needs of LIPs. There was limited face-to face contact, advice and support at all stages of the pre-court process and on arrival in the court building before the hearing. The support available from court service staff varied locally but was constrained by concerns about straying into giving legal advice. The reduction in court counter hours and switch to an appointment system in some courts has reduced further the opportunities for face-to-face support.

The challenging and complex nature of the pre-hearing tasks, coupled with limited support and advice, was a source of anxiety and stress for many LIPs. It also had consequences for court service staff workloads as they had to deal with correspondence from LIPs or pick up the errors or omissions in LIP paperwork. Some of the problems also had a significant impact on the conduct of the hearing itself.

3.3 In the courtroom (p52-78 of the Report)

The court system is based on an adversarial, full representation model with two lawyers presenting their client’s cases to an impartial arbiter – the judge – who will make a decision. The role of the lawyers is central.

Hearings where both parties were represented were generally patterned, predictable and efficient. All participants understood their roles without any need for explanation or behaviour management. LIP hearings were far less standardised. There was considerable variation in who picked up the tasks that a lawyer would normally perform in their absence – whether it was a LIP, the judge, the lawyer for the represented party or nobody. There was also variation in how effectively those tasks were done.

The data suggested that semi-represented cases had longer final hearings and required more hearings than fully represented and non-represented cases.[1] Cases with a LIP were more likely to require adjudication or be withdrawn or dismissed. Secondary analysis of a dataset of financial remedy contested hearings also suggested that LIP cases were less likely to settle and less likely to settle early than fully represented cases.

There was variation in how well LIP hearings appear to work or not work in court. Four types appeared relatively fair and efficient/effective: umbrella semi – the represented party’s lawyer works on behalf of both parties; third party (quasi) lawyer – the children’s lawyer acts as broker for both LIPs; fully inquisitorial judge – the judge takes on the role of lawyer(s) and judge holding-their-own LIPs – a competent LIP manages a simple hearing with support from the judge.

Four types of hearing appeared inefficient/ineffective or unfair: “hot potato” hearings – chaotic hearings with disruptive LIPs, adjourned or listed for contested hearings; over-confident LIPs – rambling hearings unable to restrict LIPs to legally relevant matters; out of their depth LIPs – LIPs unable to understand/accomplish tasks resulting in longer or extra hearings and unprotected LIPs – LIPs unable to explore concerns/present case.

 

A combination of factors appears to influence how well courts and LIPs cope. These include matter and hearing type (directions vs. substantive hearing), the approach of the judge and any legal representative, the availability of any facilitative third party and the capacity of the LIP(s). The availability of additional professional (legal) support for the LIP was often key to success. Three of the four types of ‘working’ hearings involved either a supportive lawyer or an activist/inquisitorial judge.

Causes of delay included LIPs’ lack of understanding and experience meaning sometimes critical tasks were missed out, were done inadequately or were completed by the LIP only with considerable coaching and support from others, particularly judges.

Ensuring equality of arms between parties was a real challenge, notably when a LIP was unaware of their legal entitlements and/or unable to do justice to their case. Judges varied considerably in the extent to which they helped LIPs, in itself a source of potential unfairness. Judicial attempts to support LIPs could be seen as unfair to represented parties in semi-representation cases.

Two key ‘legal’ tasks – the preparation of bundles and cross-examination – were beyond the capacity of most LIPs unless they had considerable help.

3.4 The support needs of litigants in person (p79-100 of the Report)

The LIP experience was mixed, sometimes better than expected but often stressful and confusing. LIPs reported fear and anxiety about the process, feeling marginalised and bewilderment and confusion, regardless of educational level.

Factors that made the experience more positive were judges and sometimes opposing solicitors who took time to explain things and being able to draw upon previous experience of being at court. A degree of self-assurance or confidence was helpful, although over-confidence and an over-estimation of one’s understanding of the process could cause difficulties.

The main support needs identified by LIPs were for information about process and procedure, emotional support, practical support and tailored legal advice including broad questions about their entitlements and specific questions about tactics and tasks.

LIPs varied enormously in terms both of willingness and ability to seek support and of the effectiveness with which support was sought. A minority of LIPs were proactive in searching for information without any prompting by the courts. The proactive LIPs could be divided into the capable/organised and those with a scattergun/shot in the dark approach, although even the capable/organised could find it difficult to find the information they needed. Reactive LIPs responded to instructions or suggestions from family justice professionals, especially where those instructions were clear and precise. Passive LIPs relied on others to provide help, did not engage with the court process or had chaotic lifestyles.

Support for LIPs at the time of the study was disparate, variable and limited. The internet has potential for informing LIPs, as well as some very significant drawbacks in relation to relevance, accuracy as well as accessibility for all. Few of the LIPs interviewed reported using the HMCTS or MoJ websites and those who did reported they did not meet their needs. Further, not all LIPs have access to online resources and, even for those who do, websites cannot adequately substitute for the tailored legal advice that many LIPs require.

LIPs reported frustration that organisations like CABx, the court service and Cafcass were not able to offer advice and advised them to seek legal advice that could not be afforded. There is a dearth of free or low-cost legal advice in the community.

Family and friends could be very helpful acting as informal supporters, but the development of paid ‘professional’ McKenzie Friends was a source of real concern to judges, lawyers and Cafcass officers.

As previous studies have found, the courts did little signposting to sources of support. Professional training in how to support LIPs is needed.

The development of support services for LIPs and training for professionals should be informed by, and responsive to, the different needs and help-seeking approaches of LIPs.

4. Policy Implications and Recommendations (p101-125 of the Report)

4.1 LIPS after 1^st April 2013: eligibility for legal aid and the ‘new’ LIPs

Chapter 6 of the Report considers the policy and practice implications of the findings reported above. The chapter begins with consideration of how far the findings are likely to apply after 1 April 2013. The available evidence suggested that the majority of represented parties in the sample who were in receipt of legal aid would no longer be eligible for legal aid after the LASPO reforms. In comparison with the observed pre-LASPO LIPs, the researchers would expect that LIPs post-LASPO would be less likely to be partially represented and more likely to present with vulnerabilities which affect their capacity to represent themselves effectively and create challenges for the courts in terms of safety at court, testing, disclosure and safeguarding children

4.2 Recommendations

The report identified that LIPs have considerable needs for support across several dimensions. It also identified what the researchers consider to be best practices for meeting those needs, based on the team’s review of the literature and the observations and interviews with LIPs and family justice system professionals. It has not been part of the research team’s brief, however, to analyse the cost-benefit of these proposals or to produce a fully worked-up blueprint for change. This section, therefore, summarises the broad recommendations arising from the team’s analysis of the literature and the research data. Further detailed policy and operational consideration will of course be required to determine how these recommendations could be implemented.

Information needs

• That all relevant family justice communications, including forms, leaflets, practice directions, templates and pro forma, are re-evaluated from the perspective of LIPs and (if necessary) redesigned with their various needs in mind.
• That a single authoritative ‘official’ family court website is established with all the resources that a LIP needs in one place.
• That the court’s communication with parties prior to the first hearing is used more effectively to convey important information to LIPs.
• That judges are encouraged to give LIPs clear verbal instructions and guidance on process and procedure.
• That the court service provides increased opportunity for face-to-face inquiries with relevant court staff and that guidelines and training for court staff are devised to facilitate information-giving whilst avoiding giving advice.

Emotional/moral support

• That there is a presumption that a single family member, friend or volunteer may accompany a LIP in court to offer emotional/moral support without the need to submit a formal CV.
• That consideration is given to the development of a code of conduct, practice guidance or regulatory framework for paid/’professional’ McKenzie Friends.

Practical support and legal knowledge

• That initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available.
• That providing support for LIPs in a consistent way in both semi-represented and non-represented cases is understood as a key element of the judicial role; and that judicial officers receive appropriate guidance and training to do so.
• That measures are introduced to ensure greater availability of and access to exceptional case funding in private family law matters.
• That a mechanism is introduced to enable judicial recommendation for the provision of publicly funded representation in the interests of justice.
• That the MoJ consider which other forms of legal and procedural assistance outlined in this Chapter for LIPs engaged in court proceedings can feasibly be supported or implemented.

Other issues

• Follow up independent research is needed to examine the impact of the legal aid reforms on the types and experiences of LIPs, their impact on the court system and the effectiveness of innovations and services to support LIPs.

 

For further information contact

Professor Liz Trinder

University of Exeter

01392 723375

e.j.trinder@exeter.ac.uk

[1] Liz Trinder, Rosemary Hunter, Emma Hitchings, Joanna Miles, Richard Moorhead, Leanne Smith, Mark Sefton, Victoria Hinchly, Kay Bader and Julia Pearce, Litigants in person in private family law, (Ministry of Justice Analytical Series), November 2014. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-in-private-family-law-cases.pdf

[1] ‘Semi-represented’ cases are those with one LIP and one lawyer. In ‘non-represented’ cases neither party is legally represented whilst both parties have lawyers in ‘fully represented’ cases.