For some time, I have known how I would start my inevitable blogpost about Leigh Day’s disciplinary hearing. Win or lose, I would want to state unequivocally my prior belief, my starting point. That starting point is best indicated by what I told a legal magazine when asked – about three years ago- which lawyer I most admired and why? I thought for a bit and then told them Martyn Day. There were, from memory, two reasons.
One was that I admired the way Martyn had built a firm that did important work that they really believed in. Perhaps I should have picked Sarah Leigh who actually started the firm: male centric bias, quite possibly, but I had met Martyn a handful of times, in professional contexts where he was always purposeful, interesting, even though he was properly wary of me (what I was working on was somewhat antagonistic to his beliefs and his interests).
The second was that I, and the researchers I had worked with, (worked ‘on’ might be a better description) Leigh Day lawyers, and we and they came away with a feeling that this was a firm that had great people and the ‘culture thing’ as good as we had seen it. Partly for that reason, I could not really bring myself to engage with the reporting of the SDT hearings. I couldn’t read it through the glasses I had on. I did not want to.
The second point is that Martyn, and Leigh Day, has enemies. I know, imagine. I remember being taken aback when seeing a leading City spokesperson literally hissing about them being ambulance chasers. The hypocrisy was shocking: the same spokesperson that would have smoothly defended the way his colleagues ingratiate themselves with (say) Big Tobacco, or pretend that the debate about Tax Havens is properly framed as a debate about privacy had lost, I thought – but I might be wrong – a sense of perspective. The commercial law world is compromised by the need to keep their clients sweet but that does not mean Leigh Day is not, was not, might not be too. Phil Shiner had reminded us what was possible. I would have to wait for the findings to see what came out, I knew.
So, as you might imagine, I am relieved that Martyn and his colleagues were acquitted. A little piece of me does not have to die. And I am not unsympathetic to idea that dark forces were out to get him. And for what it is worth, what I did read of the SDT hearings did not suggest to me they had a good case. But also, for what it is worth, what I have read of the allegations that the SRA bent to the pressure of the government was similarly weak. But I want to say that my judgment here, at least, is likely to be limited – only modestly encumbered by evidence and experience. And I see the same flaws in judgments being reached by the professions and the commentators via the vehicle of questions need to be asked.
It is certainly the case that the hearing was expensive. And that the SRA lost on all 20 counts might very well raise questions about whether the prosecution should have been brought. And that any discussion between the SRA and the Government might have been inappropriate or unwise. But it might also be the case that the SDT is a poor tribunal. Or that the standard of proof is wrong (or right – this case may very well be an interesting and acute case study of the problems posed in disciplining lawyers). It is also the case that it would be worrying indeed if the good, sometimes great, and – the law of averages tells me – sometimes poor work that firms like Leigh Day does might be chilled by such judgments. But it is also the case that allegations of the sort that were made really do need to be investigated and, where appropriate, prosecuted. Phil Shiner tells us that, if it tells us anything. Martyn’s innocence (if that is properly how we see an acquittal) does not tell us that there is a need to find blame – not yet. And neither does it tell us we should not have a proper but balanced look to see if blame is deserved.
Oh, and there is one other thing which I was readying myself to say if Martyn had been convicted. Although, I confess now I am not sure I would have been brave enough to say it without carefully reading the decision (which we must wait for until August). Instead, I remind you about two other lawyers who I greatly admire, for similar reasons, and who could just as easily have made it into my most admired column, two similarly high profile, senior lawyers of great repute have been convicted – in the past- and after they scaled the heights – of significant professional misconduct. Making mistakes is much more common than we care to admit. Some of those mistakes probably do require the full monty of adversarial process but most probably do not. And nor do mistakes usually require the analgesic reaction meted out to (say) Phil Shiner. Pretending this is about bad guys and that they are acres away from us is not always wise. So let’s react, investigate, think about the lessons to be learned. But let’s also keep those lessons in perspective and remember which glasses we have on as we peer at the few things we know now or the SDT judgment in a few months’ time.