1st March 2022
There is a negotiation tactic when a party wants to be robust or unreasonable but wants to appear to be nice and approachable.
The tactic is to blame the lawyers: “I would agree, you see, but I have been told by my lawyers that I cannot”.
And nobody minds – the party gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.
There is a similar move in politics and media.
The politician or pundit gets to blame the lawyers – and to get easy nods and cheers.
“It is the lawyers to blame.”
In turn the less alert of those listening will roar and demand that the lawyers be named and shamed.
And nobody minds – the politician and pundit gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.
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This political and media dance routine obscures what lawyers cannot be blamed for – and what they can be.
Individual lawyers at any one time can only work with the law as it stands.
If the law does not permit or enable a thing, then a lawyer cannot make a difference.
If you want to stop a person from having or exercising certain rights then legislative change can often make the difference wanted.
Take for example, sanctions on oligarchs.
Oligarchs will have rights and can exercise their rights.
That lawyers advise and assist so as to make those rights effective is not – ultimately – the fault of the lawyer.
If the government really wants to sanction an individual then there is little that lawyers can do to prevent it.
There are certain limited exceptions – obviously in respect of life and liberty – but almost anything else is possible if the government is determined and goes about it in the right way.
Take, for another example, defaming oligarchs.
Again, oligarchs have a right to defend their reputations.
And lawyers will be there to advise and assist so as to make that right effective.
But such lawyers can only work with the law of defamation as it stands – and it is entirely open to the government to seek to reform the law of defamation.
There are reforms that could be made – for example to make SLAPP legal cases far more difficult to threaten or to make.
Determined efforts and reforms, however, would take time and effort by the government – and so it is easier to blame the lawyers instead.
There will always be those who will clap and cheer.
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But.
The defence above does not absolve lawyers in England and Wales from personal responsibility.
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That said, barristers – those lawyers who tend to do advocacy in court – are (supposedly) bound by a cab-rank rule which means they are (supposed) to take case in their area, regardless of who are instructing them.
As such barristers can be instructed in a matter contrary to their own views.
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Solicitors, on the other hand, are not bound by a cab-rank rule.
And it is solicitors who will be sending the letters on behalf of oligarchs in respect of sanctions and defamation.
Solicitors do get to choose who they act for.
Indeed, the business models of certain solicitor practices are based on there being numerous foreign corporations and high net-worth individuals wanting to enforce rights in London.
(And for what it is worth, I choose not to act for oligarchs or foreign states, and do not act against newspapers, even though I am a media and commercial lawyer.)
But.
If one a solicitor does not want to act for such clients in such cases, then there will be other solicitors who will.
Solicitors may be able to choose who they act for, but they cannot choose to change the law.
And so here – even without denying the personal responsibility of lawyers who choose to act for such clients – we again have the ultimate problem being the law, rather than lawyers.
The hard truth is that, although it is satisfying to blame – and name and shame – lawyers, it is the law that is at fault.
What lawyers do is a function of that law.
But that would require difficult questions of how the law came to be in the state that it is.
And that is why law-makers and their political and media supporters choose to blame lawyers instead.
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I did a little experiment: I downloaded your text into Word and did a few rough replacements. Banker for Lawyer. Regulator for Government. Finance for Law. It reads quite well with those changes and would absolve everyone working in finance for anything related to the financial crisis because it was all about the ‘regulations’. However, finance has moved on in my opinion. It is mostly about what banks ‘should’ do rather than what they ‘can’ do. Personally I see no reason why solicitors shouldn’t be criticised in the same way.
Within the cab rank rule for barristers, I think sometimes barristers use this too much as a ‘get out of conscience free’ card. I have certainly seen cases of activist barristers (often associated with anti-abortion and anti-LGBTQ campaigns) who are always acting for the same type of client hiding behind the shield of ‘cab rank rule’ whenever this is pointed out.
Whilst you may have a cab rank rule, if you’ve built a practice reputation as the friend of the bigot it’s still a problem.
Your post today makes a lot of sensible points. However, I’d like to put forward not a rebuttal but another angle.
Some years ago, when news emerged of the use of ‘enhanced interrogation techniques’ – or torture as we might call it – in the context of US anti-terrorism actions and especially the Iraq war, there was a hunt to find who was responsible. Surely, the military officers who ordered the action? But they were obeying what they were advised (by military lawyers) were legitimate orders. So the people – politicians – who gave the orders? But they had sought the advice of Counsel – specifically certain prominent lawyers who went on to become leaders of their profession (heads of Law Schools and the like). So weren’t these lawyers responsible? No, said their defenders (including lawyers writing for impeccably liberal outlets like Slate): these lawyers were simply giving advice, to the best of their ability, to their client. They could not be held responsible if this advice led to illegal actions (such as torture).
In other words, there was a perfect get-out clause for all concerned (except the very lowest servicemen, perhaps) and the lawyers garnered more fees and prestige (among certain circles). I would be very interested to know the view of eminent commentators here whether this was a correct understanding, or where responsibility should in fact have been place.
Thank you – an important perspective
Is there no mechanism for the Court to strike out, ex proprio motu, SLAPP actions that are without merit?
Would an application for security be considered in such matters even where the Claimant is well funded?
That might protect the putative Defendant against excessive costs.
There is no effective mechanism – that is the problem.
There is another tactic the super rich regularly use to protect themselves using the defamation laws. They employ a large legal team at very high rates and then generate the need to use up a lot of legal time by extended legal arguments. By accusing investigative journalists of defaming them they either draw them into an expensive defence of the story as written or a compliant climbdown to avert financial disaster. Deep pockets and the best lawyers win cases.
You can’t blame lawyers for doing what they are employed to do but the tactic of draining your opponent of funds even before they risk bringing a case to court and if they do taking the chance they won’t lose and have to pay the Oligarch’s legal expenses is not good for justice.
First of all, I definitely think it’s important to remember that truly meaningful change has to come from changing the law, which as you say would lead to difficult conversations and a would require a level of soul searching that governments are unlikely to want to engage in.
I do wonder, however, whether ‘name-and’shame’ truly applies here? You point out early on that the defence at the start of your post doesn’t absolve lawyers of personal responsibility, and hopefully we can agree that just because something is legal doesn’t make it morally right. As you say, if one solicitor doesn’t want to do something, there will be another that will. Surely this means that solicitors who don’t want to carry out work on behalf of oligarchs, for example, can rest easy in the knowledge that they will still get the legal support they need without anyone having to compromise their morals. In which case no one is being shamed when their name is called out (in Parliament or elsewhere), as surely the solicitors carrying out this work must believe what they’re doing is morally sound, and nothing to be ashamed of.
As Kevin Hall and others have pointed out doesn’t it just come down to the financial power of the parties. Is Private Eye the exception that proves the rule?.
You are at your best when you speak passionately about issues that you know intimately from having practiced as a lawyer within the rule of law for years, it is expected you would know all this…but I don’t, nor do (a lot) more than half the population. What I know is that politicians are responsible for the law, ”as it stands” and no one else – okay the judges and the Lords play a part…but, it is pretty much the politicians alone who can frame and change the law. Well, they wriggle and squirm and they charge their fees….no, no, not the lawyers, the politicians……
And despite the fact that we are all likely to vigorously agree that democracy is the best form of government yet developed by mankind, even laws enacted by democracies are vulnerable to abuse.
For example, in a representative democracy, we hope and believe that our representatives full their obligations to represent our best interests. Sadly, when it really, really matters (e.g. UK vote to join 2nd invasion of Iraq), the system fails us.
Similarly, if you think about the numerous forms of “corruption” (perhaps “inappropriate conduct” might be a softer term), such as 2nd jobs, renting out MP second homes, the expenses scandal, “cash for questions” – not forgetting, of course, lockdown parties – the list goes on, we discover that, in fact, our law-makers have the rather appalling habit of applying the Lord Admiral Nelson solution (“I see no ships…”) or, when faced with inescapable evidence of wrong-doing, believe they can just grovel in front of the House of 5 minutes and all will be forgiven.
As I’ve noted before, power corrupts, etc.
It is naive to think that lawyers do not seek to influence the laws that get passed into statute.
It is naive to think that lawyers do not work for those who seek to influence the laws that get passed into statute.
It is naive to think that non-lawyers do not realise this.
And it is naive to to think systemic problems are down to individual lawyers.
I think there are two points in tension:
It is true that everyone should be able to assert their rights, and should be able to have legal representation to do so.
It is also true that the solicitors who represent bad people for lots of money are not doing it on principle (as you of course identify above). In any other field (Alex Salmond on RT, business partners of oligarchs, banks in secretive jurisdictions) we feel free to judge those who provide services to bad people for money.
As such, I find it hard to know how to feel about a politician naming and shaming lawyers for oligarchs, Rosneft etc in an attempt to draw negative attention. If it was Priti Patel being bilious about about poorly paid immigration lawyers I know how I’d feel, but the clients here aren’t vulnerable immigrants and the solicitors aren’t poorly paid.
TL;DR: it’s complicated I guess.
In his movie, “The Firm”, young, just-graduated lawyer Mitch is offered a job with a prestigious law firm. Everything seems perfect, until the dark secret of the company is revealed: they are the mob’s lawyers – and they employ mob tactics, including blackmail, wire-tapping and even murder to keep the employees in line.
But what if Russian Oligarchs used a simpler tactic? What if one such individual came to London and either bought out or set up a law firm. With deep pockets such a person could afford to hire the very best, then given them the commercial freedom to pick their cases and garner a glowing reputation. In return for always acting in the oligarch’s best interests.
Another bad example to use: former New York lawyer Michael Cohen, once lawyer to former President Trump. We know because Cohen has freely admitted that he used questionable tactics, including threats, to carry out Mr Trump’s wishes. We also know, or at least we have heard Mr. Cohen state publicly, that he would have “taken a bullet” for Mr. Trump. Certainly, Mr. Cohen paid off a porn star, a violation of election finance laws, then served prison time for that crime.
In other words, we’ve seen examples of cases where the extreme wealth and power of a single individual can be used to pervert the good sense and judgement of an employee, a lawyer whose profession typically holds him or her to the highest possible ethical standards.
Power corrupts, etc.
There is a risk of identifying a lawyer with their client.
Yes, just as clients can choose which lawyers to instruct, so lawyers can often choose whether or not to act for a client. There is a multifactorial analysis there – questions such as: might I have a conflict of interest; do I have the right expertise, or enough time; is there a legal or regulatory impediment; is there a risk of reputational damage; what will other current or potential clients think; will I be paid; ultimately, is this a client I want to work for?
But even the worst people (child murderers, rapists, war criminals, oligarchs) are entitled to legal advice. Indeed, people who are detested by society at large may the ones who are most in need of legal advice. In some countries that would include people accused of political offences, or seeking to enforce their rights against the rich and powerful. Their lawyers may find themselves facing personal and professional threats – being disbarred; fines; personal violence; imprisonment; even death. Is that what we want?
Over the last year or more, the legal profession has examined its historical role facilitating slavery. I’m sure that at the time, members of the profession supporting the slave trade used similar arguments to those you have expressed above: we are merely operating within the law.
It is easy to apologise for actions over slavery hundreds of years ago and to change the name of a firm to remove the names of people long dead. Perhaps the profession should examine its current activities in a similar way?
Indeed – and it is this very blog that had some of the key posts in that reflection – https://davidallengreen.com/category/slavery-and-law/
While I agree, same in taxation. MPs often complain about tax avoidance/evasion but then don’t change the law.
However, having worked in tax it’s more complex then you propose and you know it.
Savvyy lawyers are able to use common law and obscure legislation to ends it was not intended for. Human Rights Act gives judges this power to read in words to legislation.
Take SLAPP style lawsuits , restrictions on that will inevitably find a way to be used to shut down other lawsuits.
Like with tax, a incentive in one area to help a certian demographic gets manipulated and abused.
It’s unrealistic to think Parliament can act and change the laws this quickly to this abuse/clever interpretation.
If you take asylum and immigration its a mess, gov. Has its regulations and process then subsequent law cases has created an entire other route Nd considerations. Any case worker needs to go through a lot of considerations and ends up writing 14+ pages of considerations applying or explaining why each route doesn’t apply. Some of these routes will be people trying avenues not designed for them. Is the Gov. To shut down and overall everything back to its basics? You then lose the protections for vulnerable to stop abuse.
It’s a lot more difficulty.
But ultimately the problem of common law based systems there is no good faith. Benfits and negative if that.
“Like with tax, a incentive in one area to help a certian [sic] demographic gets manipulated and abused. ”
“It’s a lot more difficulty [sic].”
On March 15, 1996, Channel 4 aired an episode of “The Mark Thomas Comedy Product”, a sometimes dark, satirical spin on news, politics and current affairs. In this particular episode, part of the program was given over to “Conditionally Exempt Art”.
The idea here is that if you are the owner of a recognised work of art – it has to meet certain qualifications… a crayon drawing by your three-year-old, no matter how adorable, won’t automatically suffice – then if you display that work of art for public viewing in each tax year, you can claim a (significant) tax exemption.
So Mark Thomas contacted a company taking advantage of such a tax break and, after hours on the phone, were finally given a date and time that some particular work of art would be available for public viewing. So he turned up – film crew in tow. Needless to say neither security nor management would play ball.
You write, perhaps understandably, that sometimes tax law is written to aid or foster or encourage or promote investment, growth, or to support the needy by incentivising others to provide aid. You also write that [writing perfect tax law] “is a lot more difficult”.
At a macro level, I think we agree. I think that it is highly unlikely that we could ever get the elected occupants of Westminster Village to agree on good tax law, let alone the country at large.
But: come on.
Don’t let “perfect” be the enemy of good. Get rid of the most egregious abuses and that will clear the murk to make it easier to figure out other and better ways to administer tax fairly. Stick to basic principles – like those who earn more, pay more.
And perhaps most importantly of all, never believe anybody who tells you that the reason we can’t change tax law – any law, for that matter – is because “it’s hard”. That law was written in the first place, was it not?
If there genuinely was a taxi-rank rule, then how come the same barristers end up in the same sort of cases, representing the same people.
Surely Oligarch X instructs his legal team to employ Barrister Sir Y QC, and Sir Y accepts the instruction. Sir Y is unlikely to accept an instruction from, let us say, a less wealthy instructor, even with a better case.
It is true that everyone should have access to legal advice. But the taxi-rank defence looks slightly iffy to me, not least if the taxi driver is allowed to increase the charges so that only those of great wealth can afford to get in the cab.
I think the cab rank rule is that they must take a case if it’s within their knowledge and expertise and they are free to do so. But their rates may be so extortionate that Sir Y QC is too expensive for any but the super-rich to instruct, so they look elsewhere.
There has been some conflation in this debate. Removing the right to representation from oligarchs is not the same thing as publicly criticising the lawyers who make vast sums of money taking the cases.
Lawyers should be, and are, free to take the cases of oligarchs. They are currently free to defend them from journalistic criticism, and to help them skilfully evade sanctions designed to deter Putin’s regime.
In short, they are free to become rich protecting the people responsible for the scenes we see in Kharkiv.
Fine. But that liberty does not extend to freedom from criticism. If you have built a practice in which you regularly defend oligarchs, the public and politicians have a right to call you a greedy, cowardly lackey for Putin’s regime. Nothing in that public criticism legally inhibits you from taking the case.
The core of the problem is that these lawyers are making obscene sums of cash, while at the same time arguing they are simply protecting a tenet of the rule of law. The financial motive means we cannot take seriously their claim to simply be guardians of the constitution. If they really want to demonstrate that their provision of legal services is actually a deeply selfless act of stewardship, they should donate every last piece of silver from oligarch cases to Ukrainian charities.
My guess is that they will not do this; neither barristers nor solicitors would be willing to work for free in representing oligarchs in sanctions and libel cases. This is because actually the whole draw of taking these cases is the prospect becoming wealthy.
The lawyer’s mental calculus is that, by cushioning this oligarch’s life and preventing him from being publicly criticised or by having his assets seized (the purpose of which is to deter the violence in Ukraine), the lawyer can afford their children’s school fees, get that kitchen extension, or retire to Italy a few years earlier. Kids in Kyiv be damned. Ordinary people despise that sort of greed, and they are right to continue to call it out.
The SRA Code of Conduct, Rule 1.1 reads:
“You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.”
I had always imagined that amounted to much the same as the cab-rank rule; but from coverage of the oligarch issue, I’ve seen it stated that solicitors are free to pick their clients. If I am a solicitor and choose not to work for a Russian oligarch because I find the way in which they made their wealth distasteful, am I not falling foul of that Rule 1?