DoNotLie – A quick post on ChatBot ethics

I was taking a look at one of the most famous chatbots, DoNotPay, today to prep some thoughts on lawtech for a talk I am giving next week. I thought I would try it out. When asked what I could be helped with I typed in parking ticket and picked the medical emergency option and quickly got directed to a chatbot that could help with parking tickets. I was asked a series of simple questions which included:

where was the appointment (hospital)

who was I taking (I said my wife)

what was the nature of the medical emergency (pregnancy)

Very quickly, a draft letter/email was produced which I am then free to adopt to deal with my problem. It’s done in an instant. And it said this (I have only excerpted the first few paragraphs by way of illustration)…


Apart from the grammar problems, which I am not so worried about, the Bot did a very nice and super-quick job of providing a draft appeal letter, basically asking the administrator of the fines to respond decently to my extenuating circumstances. Perhaps the main point of importance is I’d use it again to get myself going if I had a real problem, but there are two other points worth noting.

One is there is an obvious factual error. A very simple statement of facts from me to the chatbot is mangled. I can easily correct it, but I wonder if more subtle slips like that would generally be picked up by non-vigilant consumers of the product. I don’t think the fact-mangling was user-error by me. I think the Bot made a clear mistake. If I am right, was it negligently built? Who is responsible, and how far does that depend on me being able to read and correct for the mistake?

The second point is that, at least arguably, it has manufactured a ‘defence’ which is false. I said nothing to say I was prevented from parking due to the pressure of the situation. It might be true, it might not (I made the situation up). Again, I might correct that mistake if I were so inclined, but the Bot is leading me down a path here, isn’t it? If the Bot’s statement is unfounded, and /or untrue, then it is encouraging me to lie, isn’t it? It is not too difficult to imagine bot-users rationalising the approach as simply a lawyerly tactic which is acceptable, rather than dishonest. Who takes responsibility for that?

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NDAs: Time to take abusive defence seriously

Thanks to the excellent work of the Financial Times, nondisclosure agreements are in the news again. We know relatively little about the NDAs in the Presidents Dinner case, other than an allegation that the waitresses were asked to sign them without reading them. Although, the Prime Minister is reportedly ‘looking into’ whether such agreements need regulation. I want to return to the Weinstein case where it has been reported, but not verified, that an NDA drafted by Allen & Overy in relation to allegations of impropriety made by Zelda Perkins.

  • The report says that if “any criminal legal process” involving Harvey Weinstein or Miramax requires [Perkins] to give evidence, she will give 48 hours notice to Mark Mansell, a lawyer at Allen & Overy, “before making any disclosure”.
  • In the event her evidence is required, “you [she] will use all reasonable endeavours to limit the scope of the disclosure as far as possible”, adding that she will agree to give “reasonable assistance” to Miramax “if it elects to contest such process”.

And that the NDA was concluded through, “days of gruelling questioning at Allen & Overy’s London office, capped by a 12-hour session before a phalanx of Mr Weinstein’s lawyers that broke at 5am”. I have written previously about the here, where I suggested that the facts might be investigated as a potential attempt to pervert the course of justice. Again, I emphasise the need for some caution, as we do not know all the facts, or whether these facts are accurate.

I have been thinking further about this and reading the SRA’s Walk the Line document, which provides a resource for solicitors to think about their obligations around litigation and steps leading up to potential or threatened litigation. That’s document focuses on a range of potential problems including:

  • “predatory litigation against third parties, where the solicitor, in the interest of the client, uses the threat of litigation to obtain settlement, often from several opponents, on cases that have no real merit, but where the cost of settlement is less than the financial, emotional or reputational cost of fighting the claim.”
  • And, “taking unfair advantage of a third party.”
  • And finally, “excessive litigation, where the solicitor fails to consider their other duties when following a client’s wish to pursue aggressive and, in particular, speculative litigation.”

It is worth noting also that the Walk the Line document identifies using litigation (or the threat of it) to “silence criticism or stall another process,” as an abuse.

How might Walk the line help us think about the Weinstein case? In general terms, it reminds lawyers of their obligations not only to clients but to third parties and to the administration of justice. The points about threats of litigation remind us that ethical litigation extends more broadly than litigation itself.

The language of Walk the Line is often couched in the bringing of litigation. This is a slightly one eyed approach. In principled terms, it must be true that the mounting of defences of no real merit are similarly problematic to the bringing of predatory claims. We perhaps see a similar ‘claimants are the problem’ emphasis in the next statement, “The most harmful examples are often predatory litigation schemes, which can become widespread and affect very large numbers of individuals.” If, as has been suggested to me, employment lawyers regularly advise on NDA’s in ways which inhibit the disclosure of criminal conduct, one might not call them predatory litigation schemes, but they are certainly analogous. Defendants, not just claimants, can be a problem: but are they? What would the arguments be?

The starting point for lawyers thinking about their obligations to the administration of justice is usually taken to be the recognition that they must not, “attempt to deceive or knowingly or recklessly mislead the court” (O5.1 in the Solicitors Code). This includes not being complicit in another person deceiving or misleading the court (O(5.2)). The code provides examples, indicative behaviours (IBs), suggesting that, “constructing facts supporting your client’s case or drafting any documents relating to any proceedings containing: (a) any contention which you do not consider to be properly arguable.” IB(5.7) is likely evidence of knowingly or recklessly misleading the court.

One argument would be that either in the course of negotiations or by the inclusion of the above clauses in an NDA, Weinstein’s lawyers are contending that such clauses are enforceable. It might be argued that “contentions” are only arguments about facts, but there is no necessary reason for this being so. Without engaging in a detailed interpretation of the Code, the first part of IB (5.7) deals with the construction of facts [in any form] and the second part deals with the drafting of documents containing contentions. There is no reason that I can see for not thinking that contentions could – indeed should – include contentions about law. Indeed, more broadly, it is well understood that lawyers are obliged to draw to the attention of courts authorities and provisions which are contrary to their argument if they are not brought up by their opponent. Such an obligation would fit with seeing contentions as including contentions of law. Furthermore, in broad terms, the courts place higher obligations on lawyers not to mislead the court (and their opponents) about the legal basis of any claim than they do about facts: one is not generally obliged to correct an opponent’s mistake around facts, but one might be if they make a mistake about law (such as missing out a key case that which supports them). Again, such an obligation would fit with an idea that one should not mislead the court knowingly or recklessly when making points of law. One can, however, I should emphasise, make legal points which are arguable, even if one does not believe them to be correct.

Of course, what I have said so far applies specifically to the duty to the court and this case has not gone anywhere near a court yet. If, and I emphasise again that it is an if, a lawyer could not stand up and properly argue that the inhibitions on Ms Perkins cooperation with the police, then could they make the same point elsewhere? We do not know, whether and how, such clauses might have gone into the Weinstein NDA. Let us assume, for the sake of argument, that Weinstein’s lawyers argued that: such clauses were necessary, such clauses were enforceable, and Ms Perkins’ lawyer acceded. Or, let us imagine that the clauses were included without any discussion. Let us assume also that 5.1 and 5.2 are not directly engaged by such discussions, even though they are conducted in the shadow of potential litigation. What might the professional rules say about that situation?

Before I get too far into that, let me deal with one important matter. I am dealing with what follows on the assumption that an NDA which seeks to inhibit the signatory from disclosing potentially criminal conduct by third parties would be struck down as unenforceable. There might be a range of opinion on this, and this would depend in part on the facts of the particular case; but in general terms (and I emphasise I am not an employment or contract lawyer) the quite strong view that I am picking up is that this assumption is probably a correct view on the facts as reported. I emphasise that the further one gets from this assumption the harder it is to see any problem of professional ethics arising (at least in the sense of whether professional Codes may have been breached).

So, back to what is of particular interest to me…

It might be argued that a lower standard of honesty and integrity is demanded of lawyers when they are away from court. On the one hand, this makes sense: lawyers might be expected to be particularly careful when dealing with the courts and their opponents in litigation. On the other hand, there is always the judge and one’s opponent (if represented) to guard against misbehaviour when the court is engaged. In particular, there are greater structural protections against abuse when the court (or an opponent) is able to exercise some supervision over how parties behave and matters are better documented. To my mind, the absence or weakening of such structural protections is an argument for a similar obligation of honesty and integrity away from the court. Indeed the Bar’s Code of Conduct recognises an obligation not to knowingly or recklessly mislead or attempt to mislead anyone (rc9.1). The solicitors code of conduct is expected to contain similar obligations when it is revised (See Annex 1 here). And whenever I raise with solicitors the difference between the bar and the solicitors’ current codes of conduct, to ask the question whether solicitors can knowingly or recklessly mislead people away from the court, they dismiss the suggestion out of hand. In the abstract at least, they think that solicitors do have an obligation not to knowingly or recklessly mislead an opponent because of their duty to act with integrity.

The need to consider one’s duty to act with integrity is strengthened by an obligation under O(11.1): “you do not take unfair advantage of third parties in either your professional or personal capacity.” This is supplemented by examples: IB(11.7) taking unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer; and IB(11.8) demanding anything for yourself or on behalf of your client, that is not legally recoverable, such as when you are instructed to collect a simple debt, demanding from the debtor the cost of the letter of claim since it cannot be said at that stage that such a cost is legally recoverable. The argument here would be that demanding unenforceable elements in an NDA is akin to claiming something that is not legally recoverable.

It could be argued that 11.7 indicates that unfair advantage problems are confined to unrepresented parties. Again, I think this is probably a misreading. The Code does not require any such reading. The outcome does not confine the obligation to acting against unrepresented parties. And, Walk the Line suggests that in being, “careful not to take unfair advantage of the opponent or other third parties …Special care is needed where the opponent is unrepresented .” Special care, of course, indicates that the SRA thinks some care is needed whether or not the parties are represented. If we assume for a moment that Weinstein’s lawyers managed to exploit a lack of knowledge or understanding in Perkins’ lawyer (again, this is speculation not fact), they are not necessarily protected simply by the fact that Perkins was represented. Of course, as the SRA note, “solicitors involved in litigation [need not generally… ] ensure that their opponents do not fall into traps of their own making.” But any misinformation around the meaning, effect, and/or enforceability of the clauses in the NDA might well be sufficient to lead to a ‘taking advantage’ finding, as might anything done to actively encourage a misunderstanding on the part of their opponent’s lawyer (or the opponent herself) about the NDA.

A further point, going to integrity is that,

If a solicitor knows that a client’s case is not honestly brought, they must not act. Where suspicion arises or the context is high-risk, the solicitor’s duty to the administration of justice and the public interest would demand proper verification of the instructions and evidence. Correspondence with lay opponents in particular must not be misleading or intimidating. (In the matter of Brian Miller and David Gore, Solicitors Disciplinary Tribunal, 2010, cited in Walk the Line).

The first point is whether defending an allegation through a gag clause can be described as a case dishonestly brought? It may well depend on how it is defended, although the grilling described above suggests that it was defended and defended quite aggressively. On the other hand, it will likely be alleged that this was merely an investigation not a defence. I am not very impressed by such shallow semantics myself: what matters is the honesty not the action undertaken. Again, interpreting what is going on here requires a broader look at the context and factual matrix as it was ought to have been known to the lawyers.

If we return to IB11.8, might an obligation in an NDA amount to a demand for something (silence) which is not legally attainable (or recoverable in the words of the indicative behaviour)? Let us imagine there is a reason advanced that, if it had some foundation, justifies inhibiting a victim from talking to the police. I am finding it hard to imagine such a situation, particularly in the context of a pattern of repeated incidents of the kind that are alleged, but even so. With a foundation offered, Weinstein’s solicitors would be obliged to properly verify the instructions and the evidence on which it is based. So a point of investigation would be, did they? Similarly, if there was a repeated pattern of incidents which the lawyers were aware or ought to have been aware, then that too should weigh in their mind when acting aggressively for their client.

The same point applies to the solicitor’s obligation not to allow one’s independence to be compromised. Independence is mandatory on solicitors and includes independence from the client, where the solicitor’s obligation to protect the rule of law, or the need to maintain the profession’s reputation is engaged (for example, the SDT have said solicitors):

“must and should on occasion be prepared to say to [their] client ‘What you seek to do may be legal but I am not prepared to help you do it’.” (In the matter of Paul Francis Simms, Solicitors Disciplinary Tribunal, 2002 cited in Walk the Line).

This last comment is an interesting, I think potentially controversial, one, suggesting there are situations where a lawyer need not, sometimes must not, assist clients in taking advantage of their legal interests. In this case, if we imagine there is a strained but just about arguable case that the NDA is enforceable, the contexts in which the claims are brought (again, if we assume a pattern of incidents of the kind reported in the press) might mean the arguable point should not be advanced. In a way, this might merely restate that the lawyer is independently responsible for the tactics adopted in any particular case. They cannot simply say they are acting on instructions as an excuse for aggressive actions. All lawyers have to think independently about the implications of those actions. The SRA suggest that whether or not a claim [or defence] is abusive, “is determined heavily by the proportionality of the claimant’s actions, and ultimately by the merits of their claim should it reach a court”. Weak merits, or very weak merits at least, and disproportionate – if arguably legal – responses can then be called into question.

An interesting point remaining is whether simply dropping into the agreement a clause that one knows or strongly suspects is not enforceable might be sufficient here? If the merits are extremely weak and the clauses disproportionate, then it seems to me it can be criticised on the basis that independence, and other principles in the Code are comprmised. It might also be argued that the lawyer is contending that the enforceability of such a clause is properly arguable by the fact of its inclusion. In this way the questions arise again: are they taking advantage of their opponent? A finder a fact would be wary of saying that such advantage had been taken, or that an opponent had been misled, but that may depend on the circumstances.

The SRA document sensibly concludes with this reminder, “There will always be complex situations where maintaining the correct balance between duties is not simple and all matters must of course be decided on the facts . It is important for solicitors to recognise their wider duties and not to rationalise misconduct on the mistaken basis that their only duty is to their client .” To which I would add, nor should they lay claim to the idea that they were merely advisers, irresponsible for their client’s wrongs. We have shown elsewhere how such an attitude can diminish a lawyers ethical inclination. That kind of attitude may be part of the problem here, as may the claim made by some employment lawyers that NDAs ‘walk the line’ of enforceability by design, and therefore do not warrant ethical sensitivity. That they walk the line of enforceability by design redoubles my concern that they do merit scrutiny.

The facts of this case and my reading of the Walk the Line document suggests to me a few things:

1.There plainly needs to be an investigation of the Weinstein case and similar cases. I imagine this is underway.

2. The SRA, and perhaps to the Bar Standards Board, should conduct a sectoral review of practices around nondisclosure agreements.

3. The SRA should also, whilst it is thinking about this, revisit the Walk the Line document. It contains a subtle but significant and continuing bias in its focus: claimant lawyers may, sometimes do, bring abusive claims, but defendants and their lawyers may defend claims abusively too. whatever the rights or wrongs of the Weinstein case, the level of risk and the level of harm associated with such agreements is high. That needs greater attention.

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ABS simpliciter

The Gazette is reporting that the SRA, “has rejected the suggestion that innovative business structures present a greater risk of financial failure.” And in particular have said, or rather Crispin Passmore their Executive Director has said, that, “alternative business structures listed on the stock exchange or attracting private equity investors were no more likely to be profit-hungry than any other kind of legal services provider.”

I think this is a simplification which, if the Gazette have reported it accurately and fully, the regulators would be wiser to be a bit wary of.

What I think the SRA are right to push back against is those in the profession who are too quick to claim that lawyers are unsullied by the profit motive. It is flat out daft. Lawyer firms are businesses either by necessity (they need to make a profit to survive) or design (they want to make a profit because status, reward, and the joys of moolah are important to them). An important point here is that there are potentially intrinsic and extrinsic motivations at work in law firms. Let’s call those two motivations a justice orientation and a self-enhancement orientation for simplicity. Lawyers, indeed human beings generally, each balance those two orientations differently: for some self-enhancement is more important than others, similarly for some justice is more important than self-enhancement (see here for a study on commercial lawyers on this point and here for one on law students).* The same is very likely true for law firms. For this reason, some are more profit-hungry than others.

The same is also true for other businesses: the owners, managers, and employees all have their own justice/self-enhancement dispositions. Lawyers do not have a monopoly over the justice disposition and businesses do not have a monopoly over the self-advancement disposition. In this very simplistic sense, one would not have a reason for saying that ABSs cannot be more or less justice-oriented than law firms.

It is not that simple though. Firstly, there is important evidence that business structures, particularly financial incentives, influence how lawyers balance justice and self-enhancement concerns. In particular, in-house lawyers have been shown to take riskier decisions where they are more strongly aligned – through bonuses for example – with the commercial imperatives of the business (see this post where I discuss some of the research at length). Stronger financial incentives can and probably do mean in-house lawyers allow or help their clients to breach laws more often. I’d bet my bottom dollar the same is true for private practitioners in ABSs or law firms.

Again, at one level, it can be argued that both law firms and ABSs have mechanisms for aligning the commercial imperatives of the business and the behaviour of their lawyers. ABSs and law firms might be so similar as to be the same. If that were true, the SRA would be right to argue that there is no in principle reason for thinking that ABSs are worse than solicitors firms. Indeed, there are lots of reasons for thinking that firms have quite bad approaches to the management of incentives. Also, as that post on in-housers shows, other factors compete for and modify the influences on legal decision-making. ABSs might be better or worse in terms of the panopoly of potential influences on decisions and conduct.

The trouble is, it is not simply an in-principle decision. There is an important empirical question which is what are the influences work in ABSs and solicitors firms really and how strong or weak are they really? One would expect a great deal of variation between the groups: some ABSs will do a good job of managing those influences, as will some firms, and vice versa. That is not the same, however, as there not being some general differences between the two groups, or for particular subsets within those groups. Variation within groups does not mean there is no variation between groups.

To give a particular example, it is to my mind rather surprising to suggest that – in general – ABSs funded by venture capital would not be riskier. In general terms, it seems to me plausible, that generlaly they would be more driven by short-term economic interests than ABSs and law firms generally. And, again in general, they would also be more likely to have less sympathy for, interest in, create less space for, or manage for, a justice orientation in terms of the staff they attract and the way they deliver their work. In that sense, I think firms funded by venture capital probably are – at least a bit – more likely to be profit hungry than ordinary firms. My prior is that it is as daft to say otherwise as it is for law firms to say they are unsullied by the profit motive. The same may also be true for those listed on the stock exchange. No doubt many readers will be muttering about Carillion, given recent news.

I don’t want oversimplify; it is important to bear in mind that there may be benefits to some of the models which are riskier in regulatory terms. In particular, transformational change in the legal services market, should such a thing be possible, might be more likely to come from organisations with new ‘unlawerly’ ideas and a higher risk appetite. It might be – is in plenty of circumstances – worth tolerating higher regulatory risk for such potential benefits – but we should not pretend the risks are lower simply to seek out the benefits.

Of course I might be wrong. Venture capitalists might be just as balanced as lawyers or, more likely, law firms might be as financially driven as VCs. My central point is that we do not know enough about the competing strengths and weaknesses of ABSs in general or law firms, in general, to really, to begin to quantify properly the relative levels of risk. The SRA may have information which it is not shared which enables this quantification, but I doubt it. More likely, is the common approach of legal service regulators which is to make a claim in sympathy with their general policy and, because there is an absence of evidence, say there is no evidence to contradict it, or to cling to rather slim evidence in the favour of their preferred position. The LSB’s work on innovation tends to fall into this camp, for example. It is a product of small budgets and the hopes that they have for changing the legal services market,

In some ways, I do not criticise the approach: all decision-makers have to proceed in the absence of perfect, often even adequate, evidence. What I would criticise, however, is an un-nuanced awareness of the very significant gaps in knowledge and how they might impact on the correctness of, or in the implementation of policy. To reduce it to its simplest: I do not think we know how profit hungry law firms are in general and how profit hungry ABSs are in general. All will want profits, but some will want profits more than others. I would, in particular, speculate that certain kinds of ABSs would be generally at the upper end of profit-hungry spectrum and, again to speculate, in general, that would mean that ABSs were indeed more profit-hungry than law firms. Even if I am wrong about that it would be bizarre in the extreme to claim that ABSs and law firms risk profiles were the same. After all if ABSs are just like law firms why have ABSs? It would be rather convenient if they were different only in positive attributes.

That is not to say there would not be exceptions, or that (say) ABSs funded by venture capital should be forbidden, or indeed that they should necessarily be heavily regulated, but it would suggest they are probably somewhat higher risk. And that the higher risk should be borne in mind by the regulators when licensing, supervising, and/or investigating such licensees rather than finessed because of an overly-simple argument and absence of evidence. I supported, and continue to support, the introduction of ABSs into legal services. But I do not support the simple stories that are told about them. Quindell and so on remind us of the potential for spectacular failure. Firms fail too. Example and counter-example may not be enough to defend ABS policy if there is another spectacular implosion. Put another way, scandals are not rational and nor is the current argument about ABSs. Those arguments need a more robust foundation than they currently have.

*if you are interested in the studies but cannot gain access, please feel free to email me.


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US, UK firms and the modifying of lockstep: a response (Guest Post)

I wanted to respond to the Lawyer Watch note about profit enhancement in firms and its impact on ethical behaviour. Because I do not want to be seen to be betraying confidences this is anonymous, but I spent long periods as a partner in each of what one might call a top 10 London commercial firm and in a major US based international firm. The former had a lockstep structure, so each year a partner received a bigger profit share until the plateau was reached. And yes, we did lose people to more profitable firms. The latter had a ‘modified lockstep’ so that only a reasonably small group of partners were given the largest share of profits. This still meant that a partner involved in Labor Law was capable of earning quite large sums of money, but not as much as a partner who could bring in large clients involved in cutting-edge transactions or litigation, contributing considerable amounts to the overall profits. Partners moved elsewhere, but rarely for more money. My English friends asked me how I liked the US model compared to strict lockstep, and my response was that provided that partners had a high degree of confidence in the profit allocation process, which we did, I preferred the US style arrangement where effort and outcome were properly rewarded. I also felt that my firm (at least whilst I was there) treated partners who were having bad patches much better than the English lock step firms who appear to think that a partner of 52 is at the end of his or her useful life and needs to be pushed out.

Both firms were admirable corporate citizens, but my US firm was by any measure outstanding. In addition to normally exceeding the target of 2% of overall hours being devoted to pro bono work, the firm sponsored lawyers outside the firm with enough money to live whilst they provided legal advice and, often, litigation support, for all sorts of socially responsible not-for-profits as they tackled the many problems of US society. And there was one programme that I was particularly proud of; the firm sent a large number of lawyers with a wide ethnic mix into a college with an overwhelmingly non-white student base to help teach and support students, and to make the students realise that they could aspire to do whatever they wanted.

My US partners would have said, not that these activities held back profits, but that the profits made allowed the firm to do so much for the community.

And I would say something similar about ethical behaviour. The pursuit of profit does not need to be unethical. Any sensible partner in a legal firm knows that the good reputation of the firm is the biggest source of future success. Cutting ethical corners in one year can lead to loss of income in future years. It can, I think, be partly attributed to the extremely litigious nature of the US (by most standards) but I found my US colleagues far more aware of ethical requirements than what I see in London firms (not all of them of course). My US firm consistently turned work down, some of it potentially extremely lucrative, over ethical concerns.

When lawyers decide on their careers, they make choices. I have nothing but admiration for those who chose to work in law centres, or in charities or otherwise to devote themselves to helping those less well off. But I know that I would be bad at that, and it turned out that I was reasonable at commercial law. Once someone becomes a commercial lawyer it is reasonable that some degree of profit maximisation is involved, and there is no inexorable link between that and poor behaviour. ‘Doing good by doing well’ is not a fantasy, at least in the world of big law.

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Locked in the jaws of the market?

Alex Novarese has written a typically robust blog about the way leading London (HQed) firms have clung to lockstep encourages partner exits to firms redder in tooth and claw.  It’s a sign of the way in which firms are locked into their markets – only able to mitigate, rather than overcome a race to (what I see as) the bottom. Legal services are valued predominantly, perhaps purely, by profit. Quality is measured in bills delivered, weighing down any balanced-scorecard. Financialisation rather than professionalism is the commercially aware mindset.

There is decent data on in-house lawyers that shows that incentivisation (giving in-house lawyers higher, equity-based rewards) increases the conduct and compliance risks of their host organisations (see here). We should be as worried about the impact of incentives on lawyers in private practice. They burnish their claims for independence without always knowing what that means. The roll-call of private practice firms in (fairly) serious trouble with professional regulators is growing – although one can’t help but be darkly entertained by the thought that a fine of Clifford Chance, or even White and Case, proportions is going to prompt serious re-thinking. The reputational damage? Maybe, that’ll make a difference to some. But we need to remember that even large firms can be heavily dependent on small circles of clients. Many (all perhaps) of those circles are inhabited by banks and those in their shadows; they like lawyers who are keepers; and they know quite a bit about the costs of doing business.

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Amicable by Design: why Minimally Vain Products might be the way forward

Every year I try to teach my students just a little something about legal design. A fledgling discipline, but one I think with the potential to reshape how law students and lawyers think about law and legal service in ways more meaningful than our rather tech-heavy debate. And as I often do on my Future of Legal Practice course I try to enlist help from the practice. So it was this year. Kate Daly, of Amicable, a divorce service provider, came and she had some unusually interesting things to tell my students about innovation, which I think might be of wider interest to those innovating in legal services, thinking about how to build online courts, even those running hackathons and similar initiatives.

Kate is a former management consultant, in her own words a ‘generalist’, who via two divorces, training in relationship therapy, and a background in psychology came to the view that divorce could be done much better than solicitors were able to do it for some clients. And she and her business partner, a ‘technology entrepreneur’ knew what they wanted to do. They wanted to build the world’s best divorce app.

So far so ordinary. One more disruptive thinker with an itch for IT.

The process of building their service, and why I had asked her to come to talk to my students, is that they are (they say) very user-focused in their approach. They see the user experience as central to designing and improving their service. Rather than concentrate on what they thought was best for the app, they experimented. They changed things. They were, to use the business speak, agile. They observed how users interacted with their services. They sought feedback, formally and informally. They made sure they observed users and asked lots of questions and, she said, really listened; listened in a way which did not negate the experience of the client. In a similar vein, she said it was really tempting to use feedback as a process of justification – to see the world through the service they wanted to provide rather than the one the user said they wanted. One way I interpreted that was that the temptation to discount unhelpful feedback needed to be avoided.

Now as I type these words, they might sound like so much blarney, but I don’t think they were because what Kate said next really caught my attention, she said,* I really wanted to build the best divorce app but that was not what our users were telling me they wanted. They were telling me they wanted something else. They really wanted to talk to someone. And so they built there service around the app, and Kate has not had the chance to improve the app in the way she wanted. To pick up on the design vernacular, it was a minimal viable product, in the sense that the app was good enough, not as good as she would like, but her users did not especially want or need it to be improved. It was, to underline the point, also a minimally vain product – a product not built inflexibly around the designer’s vision, around the desire to force tech on a problem, but one which aims to use tech to support the solution to a problem; a solution which is human-focused. A more tech-driven, less user-focused approach, might have insisted on perfecting the tech – missing what the user would really use and relate to.

There are interesting tech things going on under the hood; but it’s worth noting they have a human behind their chatbot not a series of managed pathways; although they also have lots of transcripts of these client-adviser interactions and are thinking about how to teach a chatbot to update managed pathways through such data. But in building the app, Kate seemed to come to an important realisation – the app is a parlour trick; a way of engaging people in a different way of thinking about divorce. Like the Rechtwiijzer it is forward-looking (interestingly the title of the business had changed from UnCoupled to Amicable); based on the importance of goal setting/integrative bargaining, and thinking about the future as the means of resolving divorce amicably.  It will not be for all divorcing couples, some need rights and lawyers, hard bargaining, and adjudication, but it is an approach which seems to work for some. Amicable presents as a nimble, user-focused, small player which seems to have the capacity to grow by listening to its customers and being willing to adapt its design, pivoting towards their needs, and abandoning sometimes grand plans because grand plans are might need to be built from the bottom up.


  • I am paraphrasing from my notes, not reporting verbatim.
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SRA Consultation on Price and other Information

In a recent Consultation document the SRA are proposing to:

  • require firms to publish their price for services (limited initially to a select number of legal services)
  • require firms to publish a description of the services they offer – in the same areas we will ask firms to publish price information
  • require firms to make information on our regulatory protections available – this includes introducing a digital badge that verifies that a firm is regulated by us
  • publish the data we already collect on first-tier complaints made against firms we regulate and their areas of practice
  • build a digital register that holds our key regulatory data about solicitors and firms we regulate in one place and make this available to the public
  • require solicitors working in non-Legal Services Act regulated firms to inform clients that they are not subject to the SRA requirements for compulsory professional indemnity insurance.

Here is my response, in case it is of interest. My basic argument is that in seeking to make the market for regulated legal services more competitive, it may increase the costs of regulation – for firms and for the SRA. The regulatory case for doing so is only made out if behaviour (of clients and firms) will change. Some experimentation in the area is worthwhile but I think the SRA should assess carefully the impact of its experiments and be prepared to track-back if they are not shown to impact significantly on behaviour of suppliers and users of legal services.

I agree that consumers do not receive enough information available on price, quality and service to help those who need legal support choose and I agree that this may inhibit access to justice: where consumers assume that legal service costs are too high when there are, in fact, affordable services; where competition might reduce costs sufficiently for those at the margin; or where the apparent unpredictability of costs puts potential clients off (where in fact such costs could be predicted or fixed).

I also think this risk can be overstated: access to justice problems might more often be linked to solutions actually not being affordable (however transparently they are priced) or client’s not perceiving that there are useful solutions to legal problems. As Kritzer notes, access to lawyers is not predominantly influenced by cost barriers but the nature of the client’s problem.[1] I am aware too of some legal service providers who have noticed a price sensitivity around fixed fees (where reducing their fee marginally below a natural threshold increases customer volumes). A sensible starting point for thinking about the impact of competition on access to justice is that it would likely have a modest impact on the numbers of people helped– unless such competition led to a radically different, and cheaper, model of service.

For now, such radically different models have not really reached proof of concept stage. Nor, if one is to be realistic, is the creation of more radically cheaper models inhibited by the absence of price competition in the regulated sector of the legal services market. This is for two reasons: one is that such models are quite likely to arise in the unregulated market and the second is that if – as I believe to be the case – clients want transparent prices, these new providers will offer them forcefully and first. It will be a marketing advantage they use in their favour for as long as the legal profession lags behind on this issue.

I note too some modest signs that the market may be correcting itself. There is an increase in consumers shopping around from 19 to 27 percent reported in your study over a seven year period, it is a modest increase from a low base. The competitiveness of the market is growing, albeit slowly. On quality and choice, research on consumers generally suggests they assume a fairly uniform level of basic competence amongst qualified practitioners, but also take some account of specialisation. I know from my own informal research I have done with students, that specialisation is attributed haphazardly on the basis of a wide range of not always reliable information (website testimonials; size of firm; self-proclamation by practitioners). I do not see these proposals improving on that significantly. I understand the importance, and limitation, of personal referral as a basis of consumer choice and the desirability of more active choice.

I also understand the argument that, “clear information on regulatory protections should encourage small businesses and other consumers to approach the firms that are regulated legal services providers to resolve legal problems.” Given that consumers often assume that unregulated providers have such protections there is a theoretical case that advertising protections in the regulated sector may bolster their businesses because consumers become aware of the need for the legal equivalent of ATOL protection. I have seen no empirical evidence to support that theoretical view in legal services: that is evidence that such marketing works. Although Claims Management Companies use the fact of their regulation as a marketing tactic, I do not know if it actually helps them garner business.

I note that your plans for mitigating the challenges of your proposals do not include any in-depth assessment of whether they have an impact on consumer behaviour, beyond the suggestion you will ‘gauge the impact’. I would be expecting a robust plan to examine behavioural change and whether that change is negative. The FCA did a large amount of work on information based remedies in advice work and found, if memory serves, weak or non-existent behaviour change. There is a substantial risk of regulating here to no purpose. What is the evidence that digital badges, for example, will have any effect?

Similarly, your assessment of the impact of price transparency rules is whether firms adopt them, not how it impacts on consumer behaviour. The latter is more important than the former (although both are important). It would also be important to monitor impacts on price: there is the possibility that in moving towards fixed prices market prices increase – either because firms price in a margin for risks on the swings and roundabouts of fixed fees or because consumers opt for higher prices as a signal, spurious or otherwise, of quality. The latter seems to me to be a substantial possibility as there is an absence of good information on quality of providers and consumers will naturally see something of a quality signal in price.

Price transparency is laudable in principle but difficult in practice. I am not convinced you can successfully regulate for it. I think you should experiment but with caution. The information in Annex 2 varies considerably from case type to case type. Where you are confident of specifying it seems reasonably clear the market is already responding (albeit not as transparently as one would hope). Intervention here may speed things along: towards conveyancers having a standard online quote tool perhaps, where they have the website capability. This may favour larger, potentially more expensive providers – another reason why it is important to monitor price movements during and beyond the implementation of any reform. There are some other problems with price transparency:

  • I wonder if the accuracy of the price information be checked? What level of exceptions to the rule will be permitted?
  • The complexity of information that might be recorded (such as varied pricing models, and exceptions to fixed fees) may encourage the kind of information overload and unhelpful drafting which was associated with Client Care letters when they were first introduced by the Law Society.
  • Research on CFAs dating back to their introduction (Yarrow and Abrams) serves as a reminder that information can be as confusing as it is helpful. The SRA needs to tread very gently in requiring overly complex information – and should lead work, with consumer groups and others, on how best to explain standard features of – for example, CFAs and/or evaluating existing toolkits. Again the questions you should be asking are user-focused – do they inform? Do they change behaviour?

The proposal to provide indicative timelines on services is interesting. This is something which one suspects will confuse rather than aid clients; is not something which research suggests, as far as I am aware, generally informs their purchasing decisions. Indicative timelines are likely to be highly hedged by exceptions. I struggle to see the case for regulating to require them. It seems disproportionate and unlikely to achieve valuable gains for the consumer. It is the kind of micro-regulation which the SRA has sought to distance itself from too.

I am broadly supportive of the introduction of required and digital logos. The impact of the compensation fund logo on consumer understanding and behaviour might benefit from evaluation if it imposes significant costs on firms or the SRA itself.

I support the requirements to publish information on how to make first tier and LeO complaints. This is important information for consumers and the website is the obvious place to require it.

It would be interesting to explore the impact of publishing sanction information against individual lawyers in more depth than this paper does. How does it impact consumer behaviour? How does it impact career trajectories? Is there any research on this? It may also impact on the way SRA investigations are dealt with (are allegations fought harder, and/or does the ‘shaming’ element of publication impact on solicitor behaviour). Serious sanctions short of suspension or striking off may be increasingly likely to blight careers the more visible this information is; even though the regulator (or SDT) decision with regard to that case may not have that intention at all. Equally, it is hard to resist the idea that there is a public interest in being transparent about these issues and a three year sunset provision on entries short of strike-off or indefinite suspension provides some protection against this. A more proportionate approach might be to require firm level data be published (weighted in some way against size of firm) but individual data be more limited.

In relation to complaints data, it would be interesting to see evidence on how firms report complaints vs expressions of dissatisfaction. Evidence on learning organisations suggests those that more assiduously collect information on service failures (which might include complaints) are more likely to improve. Through publishing data on complaints there is a risk the SRA will stifle this kind of reporting (where it happens) and encourage firms to manage cases as expressions of dissatisfaction rather than complaints. I would expect significant gaming of the complaints/dissatisfaction boundary by some firms. I do not see in the proposals a serious attempt to grapple with this problem or evaluate the size of it (although you do acknowledge it). Good firms that play by the rules, take complaint seriously, and so on will be penalised by information publicised by the SRA. Without a stronger case that complaints levels, as mandatorily reported, link to service quality I think I would be cautious here.

The proposal to require solicitors working in non-LSA regulated firms to inform clients of the absence of the requirement to hold compulsory PII or the absence of Compensation Fund Protection seems to me unlikely to have much impact on consumers or their behaviour. Such disclaimers are likely to be given in ways which are not taken in by clients if they are understood at all. I do not see significant harm here though in requiring such solicitors to do this and it may be that consumers become sufficiently aware of the benefits of PII and Compensation Fun protection through the logo schemes and consumer sites.

This latter point is an interesting indication of some of the broader problems with these proposals. In seeking to make the market for regulated legal services more competitive, it may increase the costs of regulation. The regulatory case for doing so is only made out if behaviour will change. Some experimentation in the area is worthwhile but I think the SRA should be prepared assess carefully the impact of its experiments and be prepared to track-back if they are not shown to impact significantly on behaviour of suppliers and users of legal services.

[1] Herbert M Kritzer, ‘To Lawyer or Not to Lawyer: Is That the Question?’ (2008) 5 Journal of Empirical Legal Studies 875.

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