Wrath of Khan: the Search for…

It has come to my attention that proceedings related to the ones discussed in my recent Wrath of Khan post are subject to reporting restrictions. I am very grateful to the person who alerted me to this. In the circumstances, I am taking down the blog for now.

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Quality and cost post SQE

The SRA continues to proselytise about its SQE proposals. I confess I have still not had a chance to fully digest the detail but I get a little bit more anxious with each bit of detail that surfaces. One point struck me whilst reading this rather good story on Legal Cheek. The SRA education director (Julie Brannan) says it would be “hard to devise an exam that could possibly cost as much as £15,000, even including training”. Tempting as it is to deconstruct the sentence with more vigour, or to simply chortle, Mwahahaha, I will simply say this: if the SRA is right – as it claims – that the exam will significantly drives up standards then there is at least a plausible case that both the exam and the training necessary to deliver those standards will be more expensive than currently. There are other possibilities, perhaps some of the training can be done away from classrooms, on the job, without the students/trainees being charged for it, and perhaps some of the training will be rolled up into LLBs and that will reduce cost – but I am not sure how much I would bet on it unless we suddenly magic up a whole lot of price competition where there has been little to date.

An interesting further point is made about price and quality. Julie notes in the same story that purchasers often treat price as a proxy for quality. This, she thinks, is one of the reasons behind the driving up of LPC fees. I do not know if this is true or not, but it is a plausible problem. Relatedly, The SRA are putting quite a lot of eggs in a basket marked publication of SQE results. This, they seem to be hoping, will help contribute to a better market for SQE related training. It’s not at all clear why, where prices have raced to the top in the past, they will now race to the bottom. But anyway, they want to, it seems, publish individual institution’s SQE averages for their students. This they will do, perhaps, whether or not the institutions conduct SQE training, and in situations where the SQE training may be very extensive or very lightly geared towards the SQE assessment. There are various problems with this, but a big one is that the link between the intervention (the training) and the outcome (the SQE result) maybe really rather tenuous. Imagine that Oxford changes its LLB not one bit and ignores the SQE; that Keele changes its degree programme to make their students part-SQE ready; and Northumbria preps the students for all the assessments that it possibly can. And then imagine comparing their SQE pass rates. What will they mean, and who’s behaviour will they influence?

But even putting this to one side, I found myself thinking back to when I chose to do the Law Society Finals. Then, the Law Society had a central assessment and league tables were published of success rates for each LSF provider. I remember because I chose my institution, Birmingham Poly as it then was, because it had a high success rate. This seemed the obvious, rational thing to do. I did, however, have to swim against a certain “you should choose the College of Law” tide because “law firms prefer the College of Law” even though the outcome is that the College of Law is achieving were poorer then. That tide was dominant even though there was a plausible case for saying that the College of Law was a rather poor institution then- indeed it was about to be given a good shakeup by the erstwhile head of Nottingham Law School, Nigel Savage.

Readers of the better memory may be to remind me whether there were price differentials between the College of Law and the institutions, and whether that might have influenced decisions or a suggested a healthy market in quality and cost. My suspicion is there was not, but that may have been because prices regulated? Anyway, my basic point is that in spite of a very clear link between outcomes (the exam results) and the interventions (the training provided that those institutions), a link that – for all that it was flawed – is significantly clearer than the SRA’s current proposals, we nevertheless had a reputational market which still (I think) favoured the College of Law. Why, if that were true then, would we get a more responsive market for quality and cost now?

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The Political Ideology of Lawyers

An interesting paper has been published (open access version here) on the Political Ideologies of US lawyers. The research has linked, “the largest database of political ideology with the largest database of lawyers’ identities to complete the most extensive analysis of the political ideology of American lawyers ever conducted.” Data on ideological leanings is derived from a database of federal campaign contributions made by individuals and that is linked, using an algorithm which matched contributors who identified as lawyers to apprioprate entries in Martindale Hubbell. Ingenious, even if not perfect. A person’s ideological commitment is calculated based on the nature and size of such contributions. Various testing was done to try and be sure this was a reasonably robust measure. It wasn’t immediately clear to me how it would deal with lawyers in the centre who did not tend to contribute. And interestingly, in their sample – which was very large – over 40% of lawyers had contributed.

They find that:

American lawyers lean to the left, [and] there is a (slight) bimodality to the distribution. Although there is certainly a peak of observations located around the center-left, there is also a second, smaller peak in the center-right. In other words, the ideology of American lawyers peaks around Bill Clinton on the left and around Mitt Romeny on the right.

Indeed, lawyers fell in the middle of seven professions: journalists and academics to the left, accountants; bankers and financial workers; and medical doctors to the right. It got me speculating, with prejudice and no significant knowledge, about what situation would be in the UK, especialy that bit about doctors. They also found that women are more liberal than men; government lawyers are more liberal than non-government lawyers; and, “law professors are more liberal than the attorney population. [Although, t]his effect is slightly smaller in magnitude than gender or government service.” Now, if you’re a practitioner in the UK, I’m betting you speculating now alongside me.

In many ways, the findings are interesting if unremarkable, much of the impact on attorney ideology relates back to where they are from, their age, and so on. Turns out lawyers from Texas are, well… you work it out. Elite firms, interestingly, and elite law schools, tend to lean slightly more towards the left relative to others. Firms that are less inclined in this direction are most often in firmly Republican States. Enron’s old lawyers are one of the few firms identified as having conservative partners and associates. Couldn’t resist putting that little factoid in.

Generally, then lawyers seem to be (in the US, on this data) somewhat less extreme versions of their local fellow electorates. They are also interestingly able to compare, depending on how accurate the specialisations in the Martindale Hubbell directory are, the relative political ideologies of different kinds of lawyers. The results are not very counterintuitive. The graph clipped below reports regression results. As such the results are not saying that all oil and gas lawyers are very right wing, just that they are significantly more right wing than other lawyers when other factors that are important are controlled for (such as age and gender).

One thing might be worth noting in the context of today’s big announcement on personal injury reform. In the United States at least, those involved in person injury defence appeared likely to be more right wing than lawyers on average, whereas claimant lawyers appear to be more left-wing than lawyers on average. That is unsurprising, but assuming it is replicated in the UK, it is a timely reminder of the likely personal political preferences of those involved in the compensation culture debate.

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One regulator, different regulatory principles, any professions?

The Legal Service Board’s recent regulatory vision document sees the Board seeking to abolish itself. It wants to replace an array of approved regulators with varied jurisdiction over differing reserved activities and forms of alternative business structure, with one regulator. It wants simpler regulatory objectives, with the possibility of ditching things like public legal education and diversity from the statutory mix; a risk-based approach to defining which activities are regulated rather than the historical mishmash of reserved legal activities; and, regulation which is not based on professional title. Whilst it is possible to envisage a future for professional organisations, the weakening of professional power may be significant. It also wants a process for working out how to ensure regulation of legal services is independent of both the professions and government, the extent to which consumer representation should be ensured or enshrined, and the precise structure of a single regulator covering the whole market.

On one level, this can be seen as completing the job started by Clementi. Shifting from the political compromise that was Clementi’s B+ model towards a bureaucratically neater, simpler and easier to justify model: easier to justify to anyone (I’d say) but the professions themselves. Although interestingly, in market terms – as the document acknowledges – it is the title, solicitor, barrister, which has the most recognition.

At the heart of the document, lies an interesting question: has more independent regulation, and a greater focus on innovation and liberalisation, led to greater access to justice, improved quality, and helped a legal system deliver more strongly on public interest concerns? The Legal Service Board’s own attempts to assess these questions are laudable but significantly incomplete. They do not really have the data to make the judgement and nor does anybody else.

The Board’s evaluation document (linked above) sets out these limitations reasonably clearly. Interestingly, while they point to evidence suggesting improvements in quality in the market, which they hope are engendered by the reforms, and while they associate – in a loose sense – some improvements in legal service markets with ABSs, they also find ABS are most influential in the personal injury market. They do not draw the link here with their evidence that where there were concerns about quality they were most pronounced in the personal injury market. That may be an ABS issue or it may be a person injury market issue associated with (say) the Jackson reforms. Is there a tendency to note possible positive associations the ABS but not the possible negative associations? Maybe, maybe not, but we are a long way from understanding whether innovation and liberalisation has had an impact on cost, quality and technicality.

In truth, the regulators generally, and the Legal Service Board as well, have proceeded with the limited budgets for research and other means of evidence collection and generation. Assessing risk and evaluating reform may be done somewhat better than it has been done in the past but we are a fairly long way from evidence-based policy. The high watermark was probably an attempt to collate evidence around will writing. Here, whilst the work was interesting, and built from a very low base, the evidence was also quite modest in nature. It floundered on the rocks of political judgements made by everybody’s favourite Lord Chancellor. Perhaps chastened by the experience, or simply less interested in research, original data on other issues has been less imaginatively or usefully generated.

The canny reader will suspect I am building towards self-interested plea for more research. I suppose I am, although not necessarily wholly or mainly the kind of research that legal academics typically do (more’s the pity, perhaps). But what I am really building towards is, I think, a key question for the reforms discussion. The tension between activity based and title-based regulation is likely to be acute. Threaten title-based regulation and you threaten the occupational status and power of the professions themselves. Equally, the case for activity-based regulation has persuasive appeal, especially if the regulatory maze that Clementi was supposed to tackle is genuinely addressed.

It is not, in theory at least, impossible to reconcile the tension by having one occupation, with licensing arrangements tailored to each of the specific activities (in fact – in a way – the existing professions do this already just separately). But my point is more basic, trying to decide what regulatory structure would really work and whether we should ditch regulation by title and build on regulation by activity, we should have a clearer view of what really works. The Legal Service Board’s own assessment of the reforms is, whilst very detailed, also very high level. It has no means of tying regulatory form and the objects of that form together. At bottom, we rely on a good deal of conjecture and ideology alongside a rather slim evidential base.

Still, it was ever thus, and we are where we are. Those who would like to debate the Legal Service Board’s proposals can do so at an event we are hosting with the Board on 14 November. You can book here.

 

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The business of lawyering and human rights?

The following text was prepared for a launch of the IBA’s Annex on Business and Human Rights, which provides very useful guidance to lawyers on how to implement the UN Guiding principles on Business and Human Rights. I talked to an abridged version of this last night.

I was asked to address the question of whether and why should lawyers pay attention to the UNGPs? My first response is many will not but some will want to lead. They will want to lead their area of law and lead their professional group. My own research on legal risk management, with Steven Vaughan, shows some in-house lawyers much more engaged in proactive leadership than others.

Proactive leadership involves horizon scanning for legal risk, and thinking much more broadly about the competencies involved in legal risk operations. These competencies involve lawyers thinking behaviourally and managerially about their jobs: how do they advise and manage complex organisations towards understanding, avoiding, and mitigating legal risk.

Put another way, a lawyer’s job is deeply contextual. Law is global, and law is human. That’s what makes legal risk so messy. And, if I can borrow from Ben Heineman’s books– Ben is a leading commentator as ex GC of GE – on the partnership guardian tension:  Leading lawyers see the need for financial, technological, ethical, societal, and political knowledge either personally or within their teams. This includes skills in institutional design and “global understanding” of the kind the IBA’s guidance promotes.  The guiding principles and the IBA’s guide reinforce and support leading lawyers in thinking forward in this way and thinking in a multidisciplinary way about what they do.

These leaders – and those advising the leaders – will increasingly ask their colleagues and the law firms they instruct to take this seriously: they will expect them to demonstrate both the competence (legal and other competences) and commitment to respecting human rights and minimising harm. These leaders and advisers may seek to influence but also contract in a broader group over time: through codes for external counsel, developing best practice, peer learning initiatives, and the like.  So the second reason for paying attention is, if lawyers are not going to lead, there is a decent chance they will be led and will have to get to grips with it that way. Although Robert McCorquodale’s research with Norton Rose Fulbright research and the Eversheds/RSG research suggests there is some way to go here.

And whilst this broader competence can be seen as part of the lawyer’s role as wise counselor, there is also a sense – rather underplayed in the document – that lawyers must also be responsible actors. I understand why the IBA is treading gently here –to lead the professional flotilla, it also needs to bring with it some of the slower boats. The basic model emphasised is that the lawyer advises, and the client decides, and human rights concerns should not inhibit the ability of clients to get advice.

It is a limited vision.

The idea that the lawyer advises and the client decides is not wholly wrong, but it does not always reflect what lawyers really do. Lawyers advise but they also shape the questions on which they advise, they shape the options which are given, they implement advice, and they take decisions which they – not their client – or not just the client – are responsible for.

Even advising can present problems. If we think of the Global Witness investigation into US lawyers, lawyers were seen to be willingly giving advice about how to obscure the origin of assets. The Global Witness ‘client’s’ story could have had human rights dimensions to it. And we can see clearly how simply giving advice has a dimension of professional responsibility to it.

But also imagine this…You think of an arguably lawful way of discouraging the regulatory and reputational scrutiny of a client’s supply chain – contrary to the the UN Guiding Principles: should you market this idea to would-be clients?

The idea that you would be advising and it would only be the client taking a decision is  – in this case – an exercise in responsibility shifting. It is not about independence nor is it about effective access to justice. It is about a lawyer’s own moral agency.

Often in-house lawyers get this. In our mapping the moral compass work, we looked at the orientations of in-house lawyers.  We found that the more strongly they saw their role as the lawyer advises and the client decides the more diminished was their moral compass. But we also saw that in general in-house lawyers saw a stronger responsibility to lead where the law is uncertain and to lead and influence their organisations towards an ethical orientation, doing the right thing, looking to the long-term sustainability of the business.  This attitude is present but it needs strengthening with practical tools. The IBA’s work will help here too: embattled, time poor in-house lawyers can look to the advice and tools being developed as a way of taking the lead. [See here for a report by BT on privacy as an example offered at last night’s seminar]

For now, business clients and in-house lawyers- rather than bar associations – will have to lead but I hope this document will help lawyers so inclined, or told by their clients to get with the programme, and will provide them with some tools to help. But because the ‘mere advisor’ view of the lawyer is inaccurate factually, and legally, professional reputation and leadership require, I think, a more rounded view of role and responsibilities.

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The Ethical Identity of Law Students

A paper I have done with Catrina Denvir, Rachel Cahill-O’Callaghan, Maryam Kouchakki and Stephen Galoob  as just been published in the International Journal of the Legal Profession. The abstract gives you a flavour:

This paper uses measures of values, moral outlook and professional identity to explore the ethical and professional identity of law students. We do so in two jurisdictions, surveying 441 students studying in England and Wales and 569 students studying in the US. The survey covers the first and final years of an undergraduate law degree and the postgraduate vocational stage in England and Wales, as well as students in all years of the JD programme in the US. We explore whether law students towards the end of their legal education have ethical identities predictive of less ethical conduct than those at the beginning of their legal education; whether law students intending careers in business law have values and profiles consistent with less ethical conduct than those intending to work for government or individuals; and what factors might explain these differences in ethical outlook. Our findings suggest that ethical identity is strongly associated with gender and career intentions. They also suggest weaker moral identities for students intending to practise business law. Ultimately, our findings support a conclusion that is more nuanced than the predominant theses about the impact of legal education on student ethicality which tend to suggest legal education diminishes ethicality.

The publishers make a limited number of downloads available for free. Click here if you would like to read the whole article. First come, first served.

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Advocates’ Ethical Capacities

Research that a team of us from UCL have conducted for the Advocacy Training Council (now the Inns of Court College of Advocacy) into the ethical capacities and advocates has just been published.The full report can be found here. The executive summary is as follows:

This research examines the ethical knowledge and skills acquired by new advocates.  It provides an evidence base to support improvements to ethical education and training.  It does so through a survey of 349 advocates (barristers, solicitors and some Chartered Legal Executive advocates) and 77 interviews with a sample of advocates.   Both the survey and interviews garnered views on ethical training and interviews assessed how new advocates would respond to a set of ethical problems.  The survey also considered advocates’ values and their influence on ethical decision making.

The interviews revealed a range of approaches to ethical problems amongst those we interviewed.  In broad terms, expert assessments suggested a range of problems common to all work areas covered. Those performing well demonstrated a strong knowledge of professional principles and rules and confidence in their application of those rules and principles to the problems we posed to them.  Such high performance was rare; even amongst the best interviewees there were generally some, albeit occasional or more minor, weaknesses on some questions.

Weaker interviewees did not spot most of the duties and principles engaged by the scenarios; failed to balance competing duties; and, showed a lack of confidence when considering implications for case handling.  The poorer interviewees tended to demonstrate such problems more frequently; tended not to recognise significant ethical dimensions to a problem; showed a stronger tendency to rely on intuitive responses to problems; treated ethical dilemmas as tactical not ethical problems; and/or, got relevant rules and principles wrong.   The poorest (a small minority) appeared to have a very limited grasp of ethical principles.  These problems were also reflected in our assessors’ views on training needs.

Interviewees did not perceive the basic knowledge deficits that our experts sometimes found, but did see a need for approaches that developed confidence in the application of ethical constructs to their practices.  Whilst there were concerns about the quality of vocational ethics education, survey respondents and interviewees felt that the professions needed to concentrate on improving ethics training once practitioners entered practice as pupils or trainees and that this improvement needs to be engendered across the life course of advocates’ careers.

Much of the professional focus on ethics training sees it as a rational, rule-based process; but our consideration of personal values in the report shows how professional decisions can be influenced by personal factors.  An advocate that better understands his or her own values may better understand and improve their own decision making. An understanding of the subjective elements of ethical decision making may merit inclusion in ethical training.  There is also a particular need for advocates to develop shared and ethically informed approaches to how to deal with uncertain fact situations and the inevitable tensions to be reconciled in ethical decision making.

This was a fascinating study to conduct. I would like to thank the Advocacy Training Council for commissioning it, the Legal Education Foundation for funding it, the advocates and judges who helped with the research, and all the advocates who participated in the interviews. That they were willing to do so is a testament to their professionalism.

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