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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CQS, TLS, CC and the SDT – a few thoughts on independence

The Advertising Authority’s decision that the Law Society produced a misleading advert for its Conveyancing Quality Scheme. You can read the decision here (it is short). In sum,

The ad stated “All Law Society Conveyancing Quality Scheme firms go through rigorous examination and testing to demonstrate that they have a high level of knowledge, skills, experience and practice”.  …given the reference to “rigorous examination and testing” and a “high level of knowledge, skills, experience and practice”, we considered that they would understand members of the CQS had met a standard above and beyond basic requirements.

While we acknowledged that firms were granted CQS accreditation on the basis of independently-verified information attesting that they met an adequate standard in terms of their competency, conduct and ability to carry out conveyancing transactions, we considered that this amounted to the minimum level of “knowledge, skills, experience and practice” that consumers would expect from a firm that was licensed to undertake a major legal transaction on their behalf. In that context, and in the absence of any routine, independent checks to assess the relative degree of “knowledge, skills [and] experience” that the firm possessed prior to membership being granted, we considered that the ad exaggerated the level of knowledge, skills and experience possessed by a CQS-accredited firm and its staff, and the extent of the checks that a firm had to undergo to receive its accreditation.

There was other evidence of the weakness of the regime, between 2014 and 2016, 291 out of 293 applications were approved. And the number of site visits is low: “no more than twelve firms had been visited, and two firms had had their membership revoked, between 2012 and 2016.  In the majority of years, no on-site visits had been undertaken.” The origin of the complaint is an interesting further indication of the capacity of the advert to mislead: it came from a solicitor, “who understood that the requirements to join the scheme did not involve any assessment of applicants’ expertise or quality of service.”

You can get a sense of how important the scheme was to the Law Society by a quick google of the Law Society’s Gazette’s stories on the subject. It shows the Law Society regularly exhorting conveyancers to get into the scheme, particularly to protect themselves against expulsion from bank panels. If the Law Society made substantial money from this then there is the smell too of conflict of interest between it and its compelled membership, but I want to emphasise a different point. The scheme, its genesis and execution, will have involved solicitors working for or with the Law Society. Did they knowingly or recklessly mislead would-be clients about the scheme? Did they knowingly or recklessly mislead their members prior to them joining? Unlike the Bar’s code, the Solicitors’ Code does not specifically require that solicitors refrain from misleading anyone other than the court, but most solicitors I speak to when I raise this lacuna point out that knowingly or recklessly misleading anyone in a professional context would be a clear breach of their obligation to behave with integrity.

To be clear on my own position, the ASA decision is one that you could argue with. The Law Society and those involved have a decent case to make that the advert was not misleading, even if the ASA disagrees (the decision itself was a reversal of a previous decision not to uphold the complaint, so one might surmise it was a finely balanced one tipped over by the knowledge about failure and inspection rates). I think they would be wrong on the facts as we know them, but it is not me who judges, and we do not know which individuals were involved in the advert. It is the SRA and ultimately – should it be referred to them – the SDT who adjudicate such things. It is interesting, in that light, that an SRA Board member introduces his SRA biog with the words, “Paul Marsh is a former Law Society President who introduced the Conveyancing Quality Scheme.” He may or may not have had anything to do with how the scheme was advertised. This is something which should be investigated.

Now, putting that to one side, a Law Society President brings with them a certain amount of experience, some of it useful, which one should be respectful of and could be useful to a Board. Others have that experience though. And there is something of a question in the mind of outsiders who wonder about the independence of the SRA and see a Law Society President sitting on their Board. Other appointments would be more appropriate, I would argue. The Legal Services Board need to take a long hard look at this.

The, perhaps whimsical, idea that the SRA might refer the ASA case to the SRA, got me thinking about the SDT (chaired by another Law Society President, just count your lucky stars it’s Ed Nally and not some of the other Presidents of his era), partly because the news broke of Clifford Chance’s travails before the SDT. A partner of theirs is appearing before them for the Excalibur case (see old blogs on this here, here and here). It is not clear to me whether the firm itself is also being prosecuted but the SDT’s order of business implies it is.

Now the point I want to make is not about that case, but about the Leigh Day case. Given the sensitivities around the Leigh Day case it strikes me as surprising that the Tribunal chair in the Leigh Day case should hail from a firm who is themselves likely to be under scrutiny in the not too distant future. I do not doubt the propriety of the Chair in the Leigh Day case for a moment, but one has to wonder at him being put in a position where he tries a leading case, the most sensitive of matters before the Tribunal that most can recall, and where the panel is invited to hear significant criticism of the SRA, whilst his own firm is engaged in what is effectively litigation with that very body. My anxiety would remain even if, as I would expect, he excluded himself from any detailed knowledge of the Excalibur case.

I do not think it is a view too much informed by hindsight that I question the decision to allocate and take the case. This is the kind of decision making which gets the profession into difficulties. It is the reason why greater independence was a feature of the Legal Services Act. And it is a reminder that independence is unfinished business.

 

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Secondments, Conflicts, and Banking

James Hurley has an interesting story in today’s Times about professional advisers breaching confidentiality during secondments to RBS’s bank Global Restructuring Group. It states some of the allegations relate to ‘lawyers’ and highlights one case involving a solicitor.

Promontory highlighted the case of a solicitor on secondment at GRG acting as a “relationship manager” on a customer’s case while being employed and paid by the law firm. The solicitor used their GRG email account to request a tender from their own firm.

The same solicitor later submitted the tender to GRG using the firm’s email address. The solicitor was “privy to tenders received from other legal firms in relation to the same work for which they submitted a quote”, Promontory found.

Promontory investigated GRG on behalf of the FCA and found 14 cases where the use of seconded staff “clearly led to a potential conflict of interest”. Some involved accountants and surveyors by the look of it. It appears that GRG customers would have been paying for the work done under at least some of these tenders. The wrongdoing included, “ensuring their firm appears on the tender lists through to providing information on the content of other bids to their parent firm.”

Interestingly, too, Promontory’s findings are reported as suggesting it, “did not find any cases where third-party firms “directed customers to take specific actions that were detrimental to them or where the use of third-party firms to conduct specific pieces of work was inappropriate”.” If this is all it says about harm to GRG’s customers, it rather misses the point. Indeed, Promontory also found that “the potential conflicts identified were more likely to impact other third-party firms than the customer”. This is a rather surprising finding. Passing on inside information about bids would have meant GRG customers might pay more, and receive weaker bids through the tender process than they otherwise would have. A professional firm with inside knowledge might know its competitors’ bottom lines and terms of service and so would know what marks to beat. The potential for GRG customers to be harmed seems clear.

Lawyers on secondment to clients who release such information have clearly behaved without integrity, and – unless given permission by the banks – breached confidentiality. Lawyers back at the ranch tendering with the benefit of inside information are similarly tainted, at least if they know about the origin of the information. The case is an interesting footnote in a broader picture of concern about banks’ relations with law firms. Steven Vaughan and Clare Coe did a very interesting study of the problems for the SRA (my blog and the link are here). The study threw up a tension between the firms that thought the SRA needed to act, and the firms that did not.  It was my judgment at the time that the firms not inclined to encourage action were more concerned about their competitive position, and their relationships with the banks, than they were with the ethical questions posed by increasing bank power over their lawyers. This kind of story strengthens my concerns. But more importantly, the SRA’s reasons for not acting on the report were that these firms were big enough and ugly enough to take care of themselves. The professional rules were a sufficient basis to say no to the banks if they asked for inappropriate things (secondments was one issue of concern, interestingly). What this line of argument missed was the potential for third parties to be harmed by the ethical problems: GRG’s customers were not the Goliaths of Big Law. This story shows that the potential harm to them was real. Perhaps the SRA should think again.

 

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AO, AO, AO: Weinstein’s men and the long arm of the law

The FT has published a detailed story (£) on Non-Disclosure Agreements (NDAs) with Allen & Overy the focus, for having represented Harvey Weinstein during a sexual harassment claim. Of course, Harvey W is as entitled to legal representation as the next rich, white male,* and NDAs are a common practice where unsavoury allegations are made (compare the hacking allegations where MPs were outraged with the idea that silence could be bought in such a way). There are however, one or two unusual features of the case which merit attention. The FT reports this about the clauses:

One of the clauses of the NDA says that if “any criminal legal process” involving Harvey Weinstein or Miramax requires her 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”, the agreement says, adding that she will agree to give “reasonable assistance” to Miramax “if it elects to contest such process”.

It would be interesting to know how standard such clauses are, seeking as they do, to inhibit any police investigation. For me they raise the question as to whether they are intended to pervert the course of justice. According to CPS guidance, the offence is committed where a person: ”does an act (a positive act or series of acts is required; mere inaction is insufficient); which has a tendency to pervert; and, which is intended to pervert the course of public justice.” One does not have to show an actual perversion occurred, and the offence plainly applies to police investigations. Indeed, “any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice.”

Of course one could argue that such clauses are a necessary prophylactic against vexatious complainants. So if the woman in this story had been judged to be vexatious then the 48-hour warning would provide a useful tool for warning the police of her weaknesses as a witness. A quarter of a million in damages and, “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,” does not suggest that Weinstein or his lawyers thought the claims were without merit, and nor does the clause requiring Weinstein to seek therapy, but I can’t rule the possibility out.

Even so, the requirement for her to limit disclosure to the police is, on the face if it – and I would welcome other explanations from experienced employment lawyers – a strange requirement which – again on the face of it – has significant potential to interfere with any police investigation. One could argue that the fact that Zelda Perkins was represented in the negotiation of the NDA protects against the problem, but, “All that is necessary is proof of knowledge of all the circumstances, and the intentional doing of an act which has a tendency, when objectively viewed, to pervert the course of justice.” Perhaps there is something in the negotiations which would lead us to the view that the agreement would not have that tendency. I suspect we will hear more.

Buried in that paragraph is the second feature of this case that merits attention. The lengthy questioning sessions, if they are accurately reported, are – I understand – unusual. Were A&O playing out US-style dispositions for their US client; was it part of the need to satisfy Miramax that there was a claim needed to be settled? Perhaps but, if accurately reported, the approach is heavy-handed to the point of unreasonableness – so why would Ms Perkin’s lawyers go along with it? More mystery. Ms Perkins says this in the FT story, “I was made to feel ashamed for disclosing his behaviour and assault, and expected to name those I had spoken to, as if they too were guilty of something,” she says. Were those people’s names being sought to establish if there was a wider problem that Miramax needed to take seriously, were they being taken to seek evidence capable of undermining Ms Parkins, and/or were those individuals also to be approached to ensure their non-disclosure? How far was corporate wrongdoing reported up the chain? The questions go on.

We do not know that A&O went too far when negotiating this agreement, but one more point for readers thinking that a reputable firm like Allen & Overy should not face such questions. Think back to the Dahdaleh case, a serious bribery trial knocked sideways by allegations that Allen & Overy had pressurised prosecution witnesses in the week before a major trial. One of the witnesses, in that case, was reported as saying this:

“It was very clear to me that they came to the meeting wanting to pressurise me and influence what kind of testimony I will give here,” he told the court.

“He (one of the lawyers) was telling me what I needed to say and I found that very intimidating,” he said.

The two partners from Allen & Overy implicated then sent Alex Cameron QC to speak for them as to why they should not be committed for contempt. A main part of their defence was that they were inexperienced in criminal cases in this Country (one was a US lawyer, the other not a criminal lawyer). The lawyers negotiating Weinstein’s NDA no doubt had similarly limited experience of the criminal process, but that does not remove the concerns about the content of, and process that led to, these NDAs.

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* Other demographics are similarly entitled, but in a somewhat more theoretical sense.

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Lloyds HBOS Quayside- the lawyers’ ethics angles

There is an absolutely fascinating story in today’s FT by Jonathan Ford about the ‘Quayside’ Scandal relating to Lloyds-HBOS. It raises a number of issues about the banks’ lawyers (in- and outside-house) and one about a Magic Circle firm and the legal regulatory framework. The story is essentially about how Lloyds, as it was about to take over HBOS, and Lloyds HBOS thereafter, dealt with former HBOS customers reporting fraud by an employee of the bank and corporate recovery agents appointed by the Bank.

One set of allegations was made to the Bank Chairman and included (to quote from the story), “falsification of business plans and the theft of fees …orchestrated by a corrupt HBOS banker based in the Reading branch, Lynden Scourfield, and his co-conspirator David Mills at QCS, [Quayside] which acted as a turnaround consultant to various HBOS business customers.” Those complaints were, according to the FT, brushed off. Many years passed but earlier this year Scourfield and Mills were convicted of fraud and given considerable jail sentences. The FT says the cost of the scam has been estimated to be up to £1bn.

According to the FT, “Lloyds showed little interest in finding out what happened. …other victims who unearthed evidence of wrongdoing were treated equally dismissively. Far from calling in the police or regulatory authorities, Lloyds maintained right up until the trial’s conclusion that its own internal inquiries had revealed no sign of any criminality.”

This is where it gets interesting from my point of view. Asserting that there is no evidence of criminality suggests an application of legal judgment. Which lawyers were involved in advising on that question, if any? What factual enquiries were made, and under whose direction? What limits were set on the investigation, if any? And so on. The likelihood is that such investigations involved in-house lawyers at the bank and, quite possible, external lawyers.

There is a suggestion that (some in) HBOS knew of the situation before the complaints. In early 2007, Paul and Nikki Turner had HBOS pull their loans, “without warning and the business into which the Turners had sunk all their savings collapsed”. The FT suggests this was at the time when, “Scourfield [was] on the brink of exposure after a new boss started looking into his activities.”

Again, according to the FT, the Turners gathered evidence and reported it to Lloyds’ chief executive. A different senior executive wrote back and, “dismissed their complaints, saying their claims about fraud had been investigated and rejected.” The bank then continued to try and  repossess the couple’s home with 11 possession hearings until, “the judge finally suspended proceedings pending the conclusion of the criminal investigation into the fraud at Reading (which led to Scourfield’s conviction).” There is an interesting question as to what was raised about the (then alleged) fraud in the context of those proceedings, and what the lawyers for the Bank knew or were told when advancing those proceedings.

The dismissal of the Turner’s complaint was not quite on all fours with what the Bank’s position actually was, or at least, came to be. The FT report the Bank saying (it is not clear when), “While concerns . . . were identified, there was not sufficient evidence to establish criminal behaviour.” Whilst, in fact, the FT reporter opines: “Even before the takeover, its executives already realised they were dealing with more than just some rogue executive.” And, in particular:

Facing an audit in the spring of 2008, some HBOS executives in the group risk department were tasked with assessing the losses from the Reading scam. At the time, HBOS was thinking about raising extra capital (it subsequently launched a £4bn rights issue in April 2008). Their email exchanges, contained in an internal report that has been seen by the FT, are telling. An email in February 2008 from Peter Hickman in the group risk department talked about the importance of keeping the Reading losses well below the £285m level at which the bank’s accounting rules would kick in, deeming them material and requiring a note in the financial statements.

At an estimated £265m, they were already too close for comfort, thought Hickman. “Anything we can do to widen the gap between this loss and that limit will help us persuade the Audit Committee we should not disclose — something we seriously do not want to do — especially at the moment,” he wrote. Another email, from Ian Goodchild, then deputy head of group risk, referred openly to the “fraud”, which he estimated had already cost the bank about £200m in losses.

I am, of course, not an accounting expert, but I am not naïve enough to suggest that calculating the losses referred to was necessarily straightforward. The job that faced the Bank was not simply a matter of working out the losses and seeing if they topped the £265m figure. There would have been matters of judgment as to how to calculate a loss and whether to attribute it to the Quayside/Scourfield problem. But it would, I imagine, be well known to these individuals that the accounts and any associated reporting should present a true and fair view. And it is reasonable to think that an ethical (and perhaps, but I speculate, legal) obligation existed to apply a true and fair view when thinking about the disclosure thresholds the bank operated to. Their interpretation of the facts on the ground needed to be true, honest, fair, and reasonable. We do not know if it was, but doing everything one can to ensure the facts fit a picture of comfort is not, to my mind, consistent with wisdom or objectivity. It is, though, the kind of thing lawyers are often asked to do (or like to think of themselves as capable of). Under this view, facts are, to a point, simply ways of seeing the world, bargaining chips in an adversarial process: the banks with the knowledge against the World with its vulnerabilities.

Doing everything one can to ensure the facts look one way is not a sensible way to run a reporting regime or to manage information within an organisation, but it happens. An interesting question is whether that is a lawful approach or one that is professional or ethical. We do not know enough to judge, but we do know enough to wonder and ask questions. The insinuation of the FT story is that the judgments around disclosure thresholds were influenced by the knowledge that they “seriously” did not want to disclose the problem, which was being discussed by some at least as fraud.

Now none of the people named by the FT, as far as I can see, had legal positions in Lloyds or HBOS, but there is an interesting question raised by Mr Hickman’s role. I should emphasise here that we do not see the FT allege that he knew there was a fraud at the heart of this problem. His anxiety about disclosure may relate to other less noxious concerns. Disclosing a large financial hole in the business might be the only concern he was seriously worried about.  But it is something which would bear investigation. I say it would bear investigation in part because Mr Hickman is a COFA, a Compliance Officer of Financial Administration in a Magic Circle Firm. He is also their Chief Finance and Operations Office (or was in June 2017, I cannot find a more current reference to him). COFAs (along with the legal counterpart the COLP) lead on risk and compliance in their organisations. The questions this raises for me are:

  1. Was this an issue disclosed to the firm when he was appointed, or did it arise from their due diligence? How thoroughly was it looked at?
  2. Was this a matter disclosed to the SRA then or subsequently as part of an assessment of the fit and proper person test?
  3. Is this a matter now under the firm’s or the SRA’s investigation?

I am really not insinuating massive problems here – we do not have anywhere near all the facts – but the FT story gives rise to enough causes of concern to suggest to me that this is something that should be looked at with reasonable alacrity. And while it is interesting that this story touches on the SRA’s regulatory regime in this way, it is probably not the most interesting lawyers’ ethics angle on the goings-on.

The FT criticises HBOS’s internal by its corporate financial crime prevention team in 2007 as inadequate and inconsistent. Given its focus on evidence and fraud, I would expect that to have involved in-house legal advice at the very least. They may have led on it. Similarly, an FSA official asks the question in 2009 of the Bank, “Who decided not to investigate?” It would be surprising if such a decision did not engage the Bank’s lawyers at some, if not several, stages.  Again, they may have led.

Lloyds sought subsequently to offer reassurances to victims of the fraud that the Bank was “fully supportive” of a police investigation. Anthony Stansfeld, police commissioner for Thames Valley, sees things differently, according to the FT.

 “If it hadn’t been for the unearthing of evidence by victims and whistleblowers within the banks, much would not have come to light,” he says of the investigation. “The treatment of whistleblowers, and the huge legal pressure they were then put under by the bank’s lawyers, has been disgraceful.”

There are not details here of the pressure, other than the number of possession hearings the Turners’ were subject to (housing lawyers would know better than me how unusual this was). An interesting question is whether any of the lawyers involved in bringing the possession hearing knew of the bank’s concerns about the fraud which contributed to the Turner’s debt, and perhaps was the cause of them being unable to pay. Put another way, more pointedly, but the facts seem to bear out (if the FT’s reporting is accurate): did any lawyers advising the Bank or its Board know that proceedings were being brought to recover the proceeds of fraud from one of the victims? That would be a very serious thing if shown to be true depending – perhaps – on how they dealt with that knowledge.

Then there is the issue of legal privilege. Recent court decisions on privilege have led to a good deal of rending of professional garments. The FT reports:

an internal police document. This is understood to accuse Lloyds of leading the investigating officers a “merry dance”; of claiming legal privilege over documents that were not entitled to be protected; of deluging the police with vast amounts of irrelevant information; and of “briefing witnesses” prior to police interviews as to what they could say without breaching the guidelines set by the bank and its lawyers. Lloyds claims it “always complied appropriately with requests for information from Thames Valley Police”, even on occasions writing to the force “to make clear that it wanted the investigation to continue”. A spokesperson points out that in the course of the inquiry, Lloyds shared about 600 lever-arch files with officers and “more than 150,000 electronic documents”.

I wonder how much of this documentation is really covered by professional privilege. The crime-fraud exception may well loom large here. The profession needs to be wary of aggressive use, and misuse (if that is what really happened – again we do know enough) of privilege if it wants to hang onto it, for the benefit of their clients.

The Bank is seeking to deal with these problems with the Corporate Classic- the independent investigation. In their favour, a former judge is conducting the investigation. Yet

Dobbs is assisted in the provision of the necessary documents by Herbert Smith, the bank’s own lawyers, who were closely involved in both the regulatory inquiry between 2009 and 2010 and Lloyds’ assistance with the Thames Valley investigation. This has raised questions about the Dobbs inquiry’s independence.

No kidding. It also raises, at the very least, a potential conflict of interest. The conduct of Lloyds during those investigations has been criticised. Dobbs is, it appears, ‘getting to the bottom of’ all these matters (and more perhaps). It is possible that Herbie’s advice or conduct will come under the spotlight. Indeed, it seems likely (fairly or unfairly). They might think they have done nothing wrong, but they cannot possibly independently advise the client in such circumstances. I would welcome a sensible explanation as to why this does not breach Chapter 3 of the Code of Conduct: “You can never act where there is a conflict, or a significant risk of conflict, between you and your client.” Because I think I must be missing something here. Few things in law are rarely so clear, but this seems to be one.

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