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.
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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.
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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
1.
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.
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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.
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But.
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.
Maybe.
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.
Even Giuliani.
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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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The law is just a social construct – a tool that can be used for good or for ill.
Lawyers are people too, some good and some bad, and each person will have to answer to their own conscience. But in most countries there is (quite correctly) a legal, ethical and regulatory structure around the legal profession which governs the things they can and can’t, and should and shouldn’t, do.
In the UK at least that means upholding the rule of law and the administration of justice, maintaining public trust, and acting with honesty integrity and independence, in the best interests of the client. https://www.sra.org.uk/solicitors/standards-regulations/principles/
Where the rubber hits the road is when, for example, a lawyer is asked to draft a non-disclosure agreement, which could be used to protect legitimate interests in sensitive commercial information, or to oppress and silence the victim of an assault.
There may also be ethical and regulatory concerns where non-disclosure provisions are included in other contacts, such as (to pick a random example) settlement agreements arising from allegations of bullying. https://www.sra.org.uk/solicitors/guidance/non-disclosure-agreements-ndas/
In conversation with a solicitor friend of mine some while ago we discussed the costs and fees charged for legal representation and his reply and reasoning was that this was due to the way Parliament introduced new laws, that they were rarely if ever black or white but almost always of shades in between.
This “greyness” gave the legal profession room to argue both in interpreting the specifics of the law and its consequences in the circumstances prevailing which may or may not have been perceived at the point of enactment.
In many cases precedents as determined by a previous judgement in whichever court (especially if a higher court) set the tone for removing some, if not all, of the “greyness” but this of course means that all lawyers must have yet another area of expertise in previous case law as well that written by Parliament.
One argument however given by the solicitor against introducing laws which are black or white (and also with set prison sentences) is that no two circumstances are the same and any black or white law (and fixed sentence) would remove from the court and a judge the ability to make judgement as per the case involved rather than as the law written by Parliament with attached sentence.
Peter Fletcher.
(Not of the legal profession.)
Nice argument, which would be enhanced by attention to the context – that lawyers and law firms are increasingly a central part of the phenomenon of global professional service firms.
https://academic.oup.com/jpo/article/6/1/72/5156217
The trouble is that people can be liars. A not-so-hot liar is likely to be found out early. That type usually stop at the Mags court.
But a liar who has hired an expensive team of lawyers, has a good cash pile to spread around and a micrometre of wriggle room has a good chance of getting away with it. Worse, an embarrassed government department or a corporation determined to hide its blushes our system seems to have far too much latitude.
Seems to this non-lawyer that we make the error of assuming people are innocent. Better to assume they are cheating lying blighters. Better to demand all information relevant to the case is delivered forthwith, no arguments and heavy penalties for backsliding and all lawyers required to present an honest summary – warts and all – to the court – or get struck off. No hiding behind commercial confidences or departmental barriers or ‘security’. No playing games over what is ‘relevant’. The lawyers must drop their clients in it.
Let the courts become that rare thing – a place where the whole truth will be heard. Let any policeman or auditor or department head or minister of the crown be far more frightened of the court than of any Prime Minister or Home Secretary or street thug. Add in a ‘gullibility index’ for lawyers to keep them from becoming careless.
Presumably such a court would be an embarrassing place and rarely used but if you knew to a certainty that nothing could be hidden and you could be dragged back before the judge at any time you might have to find a different path to sin.
We might still be stuck with a clever murderer or two but the rest of the system might be a lot more effective – and cheaper.
There are two big problems with that: people are not infalible robots and it allows trivially easy fishing expeditions.
People may not know or remember everything and from what they do know they may not realise the significance of it. Your approach would condemn any normal human.
And if people are effectively required to disclose everything based on mere accusation, this allows the authorities to accuse people of minor offences at any time (either knowing them to be innocent or recless as to their innocence) to force them to disclose material which can then be used to convict them of something else.
There is a huge imbalance of power between the individual and the state, and presumption of innocence is essential to prevent it leading to frequent and serious injustice.
But to return to the theme of the article, one of the biggest obstacles to stopping lawyers representing bad people is that, unless you are literally prejudiced (pre-judging the case) you cannot know whether they are guilty or innocent until the case is concluded. And even if you somehow stop lawyers working for bad people, that just means that the clever and eloquent bad people get away with it, while the dull and inarticulate innocent people get convicted. The point of ensuring everyone has lawyers is to try to make the case be decided on its merits and not on some other characteristic of the people (which is why legal aid is so important to ensure that poverty does not unfairly bias decisions).
“Things could be worse if lawyers were not involved. Would it really be better for those facing severe punishments to be prosecuted without proper regard for the rules of evidence?” (Prospect Article)
It seems to me as a non-lawyer that the rules of evidence are often flouted simply because in a complex case there is no equality of arms. I am talking from experience of criminal courts. So, for instance the Crown has at its disposal comparitevely endless hours of police time to investigate a case and release/disclose evidence in ways that make it difficult for a small defence team to interrogate intelligently on behalf of a client. As far as I can see it matters not if this is privately funded work or legal aided work so great is the inequality of arms. The Secret Barrister has exposed a lot of what can go wrong. Like milk cows on a treadmill few lawyers take (or can take) time to give lawmakers the benefit of what they know is wrong with the justice system in ways that lawmakers can make effective use of. All strength to the elbows of those who, like yourself, do attempt this Herculean task!
The missing piece here is the role of the regulatory bodies in ensuring the ethical behaviours you mention.
If, for instance, the partners at the big name ‘reputation management’ law firms faced a real risk of being struck off for sending threatening libel letters to investigative journalists on behalf of oligarchs, they might think twice about trying to threaten people into submission. Similarly if tax silks were routinely disbarred for providing dodgy ‘opinions’ to cover unsustainable tax schemes they might find more beneficial employment.
At the moment the worse that happens is perhaps a costs order and some snide words in a judgment, which I presume is just taken as a cost of doing business.
Your blog is a joy to read. I’m looking forward to the podcast and more engaging, informative and balanced legal articles.