4th March 2021
My column this month at Prospect magazine is about lawyers and what they can and cannot be blamed for.
Please click here and read the column.
(Please do – the more clicks I get for commissioned pieces like that column, the more I can provide commentary on this blog for you and others.)
The rest of this post below amplifies a couple of points made in that column.
The view I put forward in the column is neither of the usual ‘takes’ on this problem of the ages.
The first usual take is blame the lawyers for anything and everything about the law and what it does and does not do to individuals.
The second usual take – equal and opposite to the first take – is to deny that fault is ever with the lawyers and to aver that any fault is instead with the clients, or the courts, or something else.
This latter approach is sometimes the deft go-to response for lawyers seeking to evade any censure or criticism for their work.
There will be those – perhaps reading the column or this post – who are happy with either of these views and do not wish to have those settled precious positions disturbed.
My column and this post is not for them.
The unpleasant truth is that the suffering of number of people in real life depends on just how good a lawyer is at their job.
Take for example the following cases:
- lawyers in the United States providing the best possible legal cover for torture and the infliction of other inhumane treatment;
- lawyers again in the United States appealing court decisions so as to ensure that a prisoner is killed before there is a possibility of clemency under a newly elected president;
- lawyers acting for pharmaceutical companies enforcing patents so that treatments are practically unavailable for those in pain;
- lawyers acting for insurance companies using obscure tort case law on causation so as to avoid pay-outs to those requiring compensation for medical fees,
and so on.
This is, of course, not new.
Without even affirming Godwin’s Law, one can point to the English lawyers who long provided legal cover for the slave trade.
Law and slavery— davidallengreen (@davidallengreen) June 13, 2020
It is not only the ports that need to look critically at their own history
The law and legal profession need to do so too
Slave owners and traders could only do what they did because they had legal cover
As a direct consequence of the dedication, skill and ability of the lawyers involved, there is (and has been) more human misery in this world than otherwise would be the case.
Often the excuse offered for lawyer culpability is an appeal to the judge-fairy.
This is to say that it is for a court to to determine guilt or innocence, or civil liability or no liability, and not the lawyers.
But very few cases get to court where the judge-fairy can wave a magic wand (or magic gavel, if not in England) and put everything right and just.
Almost all civil cases end in settlement.
And, if a lawyer has done their job well at early stages of a process, nobody will bring a civil claim any way, regardless of loss and damage.
Some people will plead guilty in criminal cases rather than run the risk of the consequences of a guilty verdict, regardless of their actual innocence, because of the case against them or the prosecutors employed.
And others will, because of solid legal advice, be always at least one step away from any criminal culpability.
So, no: invoking the judge-fairy is not enough.
The craft and practice of law is often in avoiding anything ever getting close to the uncertainty of a court hearing.
As I set out over at Prospect lawyers may be to blame for many things, but they are not (usually) to blame for the laws.
Lawyers and their clients can only get away with what the law – both in terms of substance and procedure – allow them to do so.
And it is often a public benefit – counter-intuitively – that those with power have good legal advice rather than bad legal advice or indeed no legal advice.
For those with power will still use that power anyway.
Perhaps this view is just to replace the judge-fairy for a legislature-fairy.
But it was so telling when Rudolph Giuliani could not bring himself to mislead the court for the benefit of his client Donald Trump and allege fraud.
Even Giuliani had to act within the boundaries set by legal and professional rules.
And in certain circumstances lawyers can even be excused their clients.
In England and Wales, as is well-known, barristers follow a cab-rank rule for cases before domestic courts (though this rule does not cover their often lucrative appearances before non-domestic courts).
This cab-rank rule, in turn, is an application of a more general approach of the law to those who provide(d) certain key services – another example is the law of common carriage and the rules that oblige(d) those who kept inns, toll-roads, ferries, bridges, and so on, to provide, in principle, a general service to all-comers.
The cab-rank rule is thereby a public good.
It ensures that everyone is entitled, in principle, to the same standard of advocacy and representation.
Yet what is less well-known is that the majority of lawyers in England and Wales – solicitors – are not under the cab-rank rule, and so can pick-and-choose clients and areas of law.
But even solicitors (of whom I am one) cannot be blamed for the law on which they advise.
Lawyers can be blamed for many things – perhaps far more than many lawyers would like to admit – but they cannot be blamed for the law.
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