Is Solicitors from Hell a Conspiracy Against the Legal Profession?

(thanks to Byfield)

As I came out of the BBC yesterday with Des Hudson*, the chief executive of the Law Society, he said Rick Kordowski was a criminal. I reminded Des that the police didn't think so. He wasn't happy.

We'd both been invited to discuss Solicitors from Hell on Radio 4's You and Yours consumer affairs programme. For those of you who might not know Solicitors from Hell allows disaffected clients to write their stories about their dissatisfaction with their lawyers. At times the voices are plaintive, frustrated, and upset. A number of lawyers have sued Kordowski for defamation, except he's got no money. And recently a judge suggested the Law Society and the Bar Council take action against Kordowski and his website.

The BBC has put the story and the difference between Des and myself on their news website. You can listen to our discussion here: we are Chapter Three.

My view is quite simple. Whatever one thinks of Kordowski or his website, it serves a need. It demonstrates clearly that people need an outlet to express their feelings and concerns about how they are treated. Instead of attacking Solictors from Hell the Law Society should be doing something about those complaints. It should be preventing the need for a website like Solicitors from Hell. If there's no felt need, then no SfH.

Lawyers are improving their game--don't get me wrong--but far too slowly. In the first six months of setting up the new Legal Ombudsman received nearly 40,000 calls which turned into close to 4,000 complaints. And there is a backlog as well. But that's far too many complaints for a profession to have landing on its doorstep. It's still not an easy process to complain about bad legal services. It could involve the Ombudsman or it might the task of the Solicitors Regulation Authority. Certainly the Law Society website doesn't make clear about how to go about complaining except to give a link to the Legal Ombudsman. Take a look at its website home page and see how easy it is to locate the complaints section. It's not.

This is one of the reasons why government decided the professional bargain was no longer working and passed the Legal Services Act in 2007 and established an entirely new regime of regulators for the legal profession and legal services market. Professions have to be accountable to the public.

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*Here's Des in a better mood and you can read previous posts on Solicitors from Hell from March, April, and June.

Is Solicitors from Hell a Conspiracy Against the Legal Profession?

Proof It's Time to Teach Ethics--Part Deux

(thanks to New Yorker)

Proof It's Time to Teach Ethics--Part Deux

Proof It's Time to Teach Legal Ethics in the UK...

City law firms are ticked off because government legal procurement doesn't seem to be going their way. Legal Week reported on government's reliance on one or two firms for its banking crisis work, well, mostly one--Slaughter & May. During the Northern Rock crisis it billed government £20 million in fees.

The latest beneficiary is Freshfields, which isn't on the panel, and partner Barry O'Brien of Marks & Spencer conflicts of interest notoriety.

However, what really intrigues me are the comments following the article. They represent the polar extremes of formalism and professional responsibility. My take is that lawyers are superb at avoiding accountability but then their forensic training ensures they make these distinctions. For example, the way the SRA Code of Conduct is used to justify positions is rather like the way evangelical preachers on TV use quotations from the Bible. In a country where legal ethics is not properly taught, now is the time.

I've added the comments below:

Sick

I think that lawyers are the last people who should be moaning about this since they were partly responsible for causing the financial crisis and have never been punished for it. The law is not just something for partners to make money out of – it was designed as a system to govern and protect society. That includes lawyers involved in corporate and banking law.
In respect of the complex financial products and mechanisms that were created during boom times e.g. securitisation etc and the complex deals that took place, it was the responsibility of lawyers to advise their clients that these could end up in a financial crisis scenario. The lawyers should have been alert to the fact that, although operating in a soft law type environment, these deals were harmful to principles such as market confidence, protection of the consumer, as well as protecting the system as a whole. It was the lawyers' duty to deter the clients from conducting these deals and they should have reported their concerns to the Government, FSA and international bodies and refused to act for the client. A client may well think these deals are smart, but it is for the lawyer to consider the legalities – that does not just mean loyally making it happen for the client so they can bill and buy an Aston Martin, but also looking at the bigger picture.

So City lawyers are reaping what they have sown here. And if lawyers wish to argue that they could not anticipate the financial crisis then that is more reason to say they are responsible and should be brought to book because it would be negligent for any lawyer advising on finance deals to not have a firm grasp and understanding of economics related to the deal and how the deal fits into the economic system as a whole within that economic climate (e.g. a boom period).
And £20m is sick – why on earth don’t the government deal with this in-house, probably at 1/10 of the cost? And why are these firms on any kind of a panel in which they initially advised on the deals and the institutions that went belly up? This is another example of the David Cameron 'jobs for the boys' mentality that the current Government promote (i.e. work for the Eton and Westminster School alumni, stuff the rest). It is a total disgrace.

Megatron -16 Jun 2011 | 13:13

A few facts

Megatron

Clearly facts aren't your strong point, but the panel was created by your friends in the last government. Do you remember? The ones who set up the system of financial services regulation and who advocated "light-touch" regulation. The ones who virtually bankrupted the country. Do try to retain some grasp on reality.

Rant over -16 Jun 2011 | 14:59

Cleansing the Augean Stables

Megatron,

Let's get it all out in the open. Where were the lawyers when the Japanese earthquake struck, eh? Didn't they warn Tepco about the risks of water-cooled reactors?
What about Southern Cross? Shouldn't they have predicted the squeeze on local authority spending and refused to act for Blackstone on the freehold sales?
When Cardigan ordered the charge of the Light Brigade, shouldn't the lawyers have known what would happen and injuncted the Russian guns?
I'd be interested to hear your thoughts.

Scattergun -16 Jun 2011 | 15:34

@Megatron
I can only assume that you are not a lawyer. If you are a lawyer then you clearly weren't listening in your conduct classes. Rule 1.04 "You must act in the best interests of each client." Not in the interests of the country. Nor of the government. Nor of Mrs Miggins.
Your duty as a solicitor is to help your client achieve its aims within the law. It is not and never has been a professional duty of a solicitor to second guess his client's commercial decisions and aspirations or to place his own value judgments about a transaction's social utility above the interests of his client. Those are the responsibility of financial regulators, not solicitors in private practice.
Your position is just a commercial law version of the old canard put to criminal lawyers: "How on earth can you defend rapists/paedophiles/armed robbers etc?" And the response is just the same: they are entitled to legal representation and their lawyers are bound to act to the best of their abilities in the client's interests (and not society's at large). It's a fundamental premise of the rule of law.

Vercingetorix -16 Jun 2011 | 18:17

Maths

@ Vercingetorix

I don’t think you are a lawyer either to be honest based on what I just read. Lawyers are not allowed to represent rapists and paedophiles if they are guilty and then try to claim they are innocent. I think you are missing the point. FSMA said that financial institutions had to act in the interests of market confidence, protection of the consumer, as well as protecting the system as a whole. Therefore, law firms had to assess whether the deals breached those rules and if they did (which clearly they did) they should have refused to act for the client and reported to the FSA and Treasury that financial institutions were conducting deals and activities with huge systemic risk implications. So, these deals were not "within the law" (as you claim) otherwise there would not have been a financial crisis would there?
As for quoting the code of conduct by the SRA to justify City firms' oversights in regard to those deals. Please! The SRA is protectionist toward large City firms – They wouldn't dare invent a Code that might in any way, shape or form offend a City firm.
Also @ Vercingetorix - I think it was stated that the law was "not designed" in the interests of City firms and partners. I don’t think people like Plato really put much though into creating a legal system designed to help partners get a good PEP every year!
The incompetence of the lawyers point is interesting too. How could these lawyers spot systemic risk dangers? Many of the clients (i.e. employees of these banks) have very technical and high level economics and mathematics degrees. There is no way the majority of lawyers working on those deals have anywhere near those intelligence levels. There is an argument that the lawyers were not trained properly to work on those deals (from an economics perspective) and that their knowledge was limited to working with precedents and writing board minutes. This should fall at both the door of the advising partners and the SRA / Law Society for allowing lawyers to act on deals that they don’t have the technical expertise to understand.

Maths -17 Jun 2011 | 10:13

@Maths
Where in my post did I say lawyers could assert innocence on behalf of clients they know to be guilty? I didn't.
But even if they do know of a client's guilt, they still defend their client. It is quite possible to test the prosecution's evidence and find it wanting such that a client is acquitted without ever asserting a client's innocence. It happens every day in criminal courts up and down the country.
You really were asleep in your ethics classes weren't you?
As to the rest, you seem to be completely confused as to the difference between a City solicitor and a financial regulator. One is not the other.

Vercingetorix -17 Jun 2011 | 12:39

Maths

Time to re-read FSMA, Maths. The FSA has those obligations ("objectives" in fact), but financial institutions do not.

Sarpedon -17 Jun 2011 | 12:46

reality check

Reality check: the regulators should have regulated. Or worst case the banks should have seen what was coming. Legal advisers advise on, shock horror, legal issues. Financial institutions advise on, shock horror, financial issues. Admittedly there is some crossover, but to assert that lawyers shouldn't be working on deals that they don't 100% understand from an economic perspective is frankly absurd and highlights a 'bash the banker/lawyer' attitude promulgated by a government that fundamentally failed to protect the economy.

People are out for themselves. It is the responsibility of the government to check this, unless something is actually unlawful (which everything referred to above was not, it was merely inadvisable). If it were unlawful, only the government could have made it so.

reality -17 Jun 2011 | 14:56

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A friend sent me another picture of a lawyer at work which I thought I'd include here. Indeed, it's quite accurate....

Proof It's Time to Teach Legal Ethics in the UK...

We Don't Need Legal Ethics in the UK!

(thanks to joelp.com)

Yesterday I went to a symposium on whether legal ethics should be part of the curriculum. It was organized by Tony King of Clifford Chance. To American readers this will seem a strange event as legal ethics is compulsory in US legal education.

I've lamented before about this gap. A year ago Kim Economides and Justine Rogers were asked by the Law Society to report what ethics training there should be. They concluded that it was an essential part but how it should be implemented was left open.

My colleague, Andy Boon, was asked to come up with ideas on how to take this next step. His draft report lays out some clear directions. He tackles the challenges of undergraduate legal education, issues of morality and law, and the profession's role in regulating the content of a "qualifying" law degree.

Support came from Chris Perrin, general counsel of Clifford Chance, and the City of London Law Society.

How or even whether anything will come of this is an open question. The Law Society, which is sponsoring this, isn't the most forward-thinking of professional organizations. For example, it does or sponsors very little research on the profession, unlike the Bar or the accountants. It's in danger of implementing ideas with little in the way  of evidence to back up what it proposes.

The Law Society supports a Joint Statement by the Bar Council and the Law Society on something they grandly call "The Foundations of Legal Knowledge". These foundations include:

i. Public Law, including Constitutional Law, Administrative Law and Human Rights; 
ii. Law of the European Union; 
iii. Criminal Law; 
iv. Obligations including Contract, Restitution and Tort; 
v. Property Law; and 
vi. Equity and the Law of Trusts. 

If you were to enquire what research underpins this selection, you would find there is none. Most of it was put together by lawyers sitting around a table and dreaming up a list. Is it the right list? I've no idea.

Now that they are considering ethics as another foundation, the question is what gets dropped or abbreviated. I've argued they should thoroughly research this, especially in the light of the Legal Services Act changes coming through, and start from a blank slate. So far this has been met with utter incomprehension.

The most dismal aspect of this is that the legal profession hasn't come to terms with the fact that the academy controls the entry to the profession. Instead of being antagonistic they need to work with us. Ultimately they will be the losers, and in fact they don't have to be.

The answer is simple. Talk. Fortunately, some in the legal profession understand this and are willing to engage. Maybe we can convince the others....

We Don't Need Legal Ethics in the UK!

From Ethics to Regulation--Version 2

(Thanks to daniele esposito for computer ethics graphic, especially the Catholic PC)

In the light of my editor's comments--and what power editors are able to wield--I have radically revised my paper "From Ethics to Regulation: The Re-Organization and Re-Professionalization of Large Law Firms in the 21st Century". It is available from SSRN.

It has lost most of the history (which is why version 1 is extant), but has gained in analysis of the moves made by large law firms in today's new regulatory world. What comes out is an interesting result that ultimately benefits them yet it doesn't seem to have been the intended consequence.

After lobbying hard for a new or separate form of regulation for large law firms, they received a tepid response from the reviewers set up by the Law Society. Smedley's review suggested a new division of the Solicitors Regulation Authority that would oversee large law firms. So far the SRA has not yelped with delight about this idea. (Since it was suggested the new regulator would have to be hired from the large law firm sector, he would probably have to be paid more than the head of the SRA. You see what I mean.)

The Hunt Review was similarly not enamoured of the idea and formulated the mantra: unified profession at all costs. But despite that, Hunt introduced the AIR. Authorized Internal Regulation, when one examines it, is a new name for self-regulation with some oversight and occasional audit from the SRA. Given the scale of large law firms, this becomes an extension of their current risk analysis practices, ie. something they are already doing.

So it gives the large law firms what they want without apparently breaching the unity and harmony of the legal profession. Now is everyone happy?

From Ethics to Regulation--Version 2

International Legal Ethics Conference IV: The Legal Profession in Times of Turbulence: Day Two

(thanks to Fredrik Sarnblad)

The conference is dense and intense. I don't mean that in a bad way: it is packed with good things and people so there is no let up in talk, listening and questions. All to the good.

Highlights for me have been the discussions on outsourcing. What's clear here is that the idea that is common currency about this is very out of date. The industry is fast moving as David Wilkins showed. The big boys are now moving in: Accenture, KPMG, etc. This will change the landscape and could mean the demise of pure play LPOs. It also signifies we have gone beyond Susskind's predictions. The potential for rationalisation of legal work goes much further up the food chain than he realised.

In-house counsel are proliferating in interesting ways. Michele Beardslee talked about compliance officers in companies and their role is complex and far reaching.

International lawyering is being attacked by American lawyers who are looking for rules and certainty in uncertain cultural contexts. Laurel Terry, Catherine Rogers were accompanied by Stephen Denyer of Allen & Overy brought this home in the areas of international dispute resolution, ethics conumdrums and international practice.

To close we had the contribution of the neuroscientists in law and moral choice. Now this is extending the boundaries of knowledge in potentially unpredictable ways. Just watch the space.

PS. California is still great. Off to San Francisco tomorrow.

International Legal Ethics Conference IV: The Legal Profession in Times of Turbulence: Day Two

International Legal Ethics Conference IV: The Legal Profession in Times of Turbulence: Day One

(thanks to llenrock.com)

We can characterize the debates at the conference as transatlantic warfare. The US is trying to resist the UK invasion of laissez faire into a monopolistic and protectionist legal profession. It's a lost battle.

The president of the ABA gave a keynote address at lunch which while acknowledging the changes in the world, the US wasn't going to change or it would change on its own terms. For those from the UK and Australia this was a forlorn expression of hope in a myth. The myth is that self-regulation exists in an almost pristine form. But as Anthony Davis, a New York attorney, pointed out there are a minimum of 90 regulators of lawyers in one form or another in the US. Myth or deception, who knows? But I would add that this president, Carolyn Lamm, is among the most cosmopolitan of US lawyers but still she recoiled at the idea of lay participation in the regulation of lawyers.

I gave my paper today. It was well-received and we had a healthy discussion in our session, "Ethics Under Pressure: Changing Regulation of Global Law Practice". My colleague, Andy Boon, and I somehow found ourselves on opposite sides of the debate. I only had to come 6,000 miles to find that out.

PS. Stanford and California are terrific!

International Legal Ethics Conference IV: The Legal Profession in Times of Turbulence: Day One

International Legal Ethics Conference IV: The Legal Profession in Times of Turbulence

(Thanks to Josip)

I am off to attend and speak at the International Legal Ethics Conference IV: The Legal Profession in Times of Turbulence at Stanford Law School. Two colleagues are speaking as well, viz. Andy Boon and Lisa Webley.

The conference has gathered participants from around the world including the UK, Australia, Croatia, New Zealand, Germany, Japan, Nigeria, as well as the US. We will have a mixture of academics and practitioners, which is always a welcome combination. For me it becomes a field trip and I learn lots.

The above link will take you through to the program, speakers, and more. I hope to provide some commentary during the conference.

International Legal Ethics Conference IV: The Legal Profession in Times of Turbulence

Lawyers in Practice: Ethical Decision Making in Context at the Baldy Center, University at Buffalo

 

(Origami buffalo thanks to ORI_Q)

I got back from Buffalo, New York, yesterday as my plane flew out being chased by lightning and thunder storms that were the tail edge of the tornadoes raging over the US.

(Thanks)

My reason for being at the Baldy Center, University at Buffalo Law School, was because I had been invited to contribute a paper on transnational lawyering by Lynn Mather and Leslie Levin. The conference had the aim of: examining:

How do lawyers resolve ethical problems in the everyday context of law practice? What issues commonly emerge in different practice specialties and what are the norms and rules for resolving them? This is the first conference that focuses on the empirical research on lawyers' work and their actual decision making in a wide variety of practice contexts.
Participants will examine the work of lawyers in a number of practice areas, identifying one or more ethical issues that arise in the practice area. Scholars will present their research, embedding lawyers' decision making in both the professional world of ethical codes and the social and economic setting of the workplace.

It was an intensive day including papers on solo or small firm lawyers:

• plaintiffs' lawyers--professional norms and the need to generate business
• divorce lawyers--client grievances and client relationships
• immigration lawyers--the lying client

While these presentations often involved cases of personal challenges, the next session moved to a seemingly more remote sphere of the corporate practice. Papers included:

• practice groups in large law firms--embedded ethics in practice groups
• corporate litigators--ethics in discovery
• In-House lawyers--ethics and allegiances
• Transnational lawyers--conflicts and identification of client

The organizational context was further explored with reference to specialist lawyers:

• tax lawyers--clients' interests or moral stewardship?
• securities lawyers--guardians of the public realm?
• patent lawyers--changing roles in defensive patent applications

Finally, we looked at public interest lawyers:

• legal services lawyers--in context of social work
• ethics of law reform lawyering--top down or bottom up?

You can read the abstracts of the papers on the Baldy website. The presentations contained a wide variety of empirical and theoretical approaches including ethnography, interviewing, statistical analysis, philosophical investigation among others. Theoretically, the papers considered the problems of attempting to capture the nature of lawyer-client relationships in shifting contexts; how do so many different types of lawyer fit within under the umbrella of the "legal profession"? what did it mean to talk in terms of a legal profession? how were ethics and regulation being balanced against each other? and how did this operate in a globalized world?

Plenty of questions and issues. We now are redrafting our papers we hope in a more integrated way that will work in the collection. We want this book to be of benefit to students as well as fellow academics and lawyers. Students often find their professional responsibility classes bear little resemblance to practice. This is a serious attempt to bring the dilemmas of practice to the student who can begin to comprehend the complexities of modern legal practice in its variety of forms.

________________________________________________

I had an extra day in Buffalo so my hosts, Lynn and Mike Mather, took me to see Niagara Falls. We get blase about the wonders of the world because of our constant exposure to them. I've made this mistake before in connection with the pyramids at Giza and the Taj Mahal. I almost made it again.

The Falls are big and very noisy. But as you approach them you hardly notice they are there. It's only when you look at them head on you see the long drop, the relentless pressure of water being squeezed into a smaller gap, and the mist that nearly obscures everything.

 (I never saw the owner of the shoe...)

I hadn't realized there were two sets of falls. And that you can take a boat trip around them. It's very wet as you can see from the blue people. Their raincoats are wishful thinking.

This is the second falls.

Standing below this makes me wonder who first went over by mistake...and what they were thinking.

And here are my hosts, Lynn and Mike Mather.

They took me around Buffalo itself which has some terrific architecture, especially from the time of Louis Sullivan. (See his Prudential Building.) Chicagoans will know what I mean. Sitting on the edge of Lake Erie it has at times a coastal feel which is heightened when you can drive across the border to Canada next door.

Lawyers in Practice: Ethical Decision Making in Context at the Baldy Center, University at Buffalo