3rd August 2022
Perhaps the most boring but memorable title of a political biography was that of Norman Fowler:
That title came in turn from a comment of Margaret Thatcher when Prime Minister, in a dispute regarding the errant Downing Street adviser of the day: “advisers advise but ministers decide.”
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One feature of legal commentary is having to explain the distinction between a client and a legal adviser again, and again.
This is especially so when politicians and the media attack lawyers.
But.
Some lawyers do not help themselves.
Some lawyers so closely identify themselves with their client so that that any client/adviser distinction is indistinguishable to a lay person.
But the distinction is always there – or should be.
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This is true when looking at the dynamics of high-profile litigation like the “Wagatha Christie” case.
And it is true of government lawyers who, it is reported, are being asked to re-frame their legal advice (which I may blog about soon, as a former government lawyer).
Of course, there are circumstances where the lawyer is their own client – notwithstanding the adage about foolishness.
But generally one way of understanding what is really going on in any legal story in the news is to work out the client/adviser distinction.
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Some clients will be so reliant on their lawyers that it will seem that in reality – as opposed to theory – it is the lawyer actually making the decisions and driving things forward (or backward, or indeed off the track completely).
But again, even if this is the situation, the distinction is still there, and the lawyer remains the servant of their client.
That a client is (over-)confident that their lawyer is acting in their best interests does not remove the distinction.
And you may not be privy to the confidential and privileged advice the lawyer has given to their client.
The overwhelming obligation for any legal adviser is to get their legal advice right.
Getting advice right, so that it can be relied upon by clients, will often involve disclaimers and provisos.
These disclaimers and provisos may be seen as covering backsides – and sometimes they may well be.
But disclaimers and provisos are also signs of accurate and considered advice: [A] may lead to [B], but if [C] happens then [A] will not lead to [B].
Blunt, simple advice has its place – and it can show off a lawyer’s confidence and experience: “you will win at court” and “there can be no defence”.
But it can also show up over-confidence, and a lack of experience.
The important – crucial – thing with legal advice, blunt or elaborate, is for the advice to be correct and thereby reliable.
And as long as that is in place, the lawyer has done their primary job.
It is then for the client to decide.
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Sometimes ministers will not like this advice – and may wish to blame the lawyer rather than the law.
Sometimes claimants will not like their advice – and seek to go to court despite advice to settle a case.
And sometimes lawyers will get their advice wrong – or, more commonly, have been too cautious in their assessments of risk.
But if, say, a lawyer says there is 60:40 chance of winning a civil claim, they have not got their advice wrong if a client then loses.
You are a just one of the 40% and not the 60%.
As long as the lawyer has reasoning for that as their best assessment, they have done their job.
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There are some lawyers who do want to be decision-makers – either in effect or in reality.
But most lawyers are lawyers for a reason and that is because they want to be advisers and not decision-makers.
There are also decision-makers who do not want to make decisions – who want to hide behind advisers or blame lawyers.
But they are still decision-makers.
Lawyers advise.
How about that for a book title?
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I would buy a book which does for civil law what The Secret Barrister has done for criminal law. An anonymised account of the frustrations of dealing with clients who cannot, or will not, take advice, and the way that the legal process can sometimes be an obstacle rather than a route to justice. The way that the general public routinely misunderstands what you do. And the grim reality that law is not a fast track to riches unless you are one of the very successful (or lucky) few.
You could do worse than to read Zen Lawyer Journey. It is pithy rather than essays, and largely about life as an in-house commercial lawyer. But it is painfully well-observed.
I want DAG to write a book on his time in Government Procurement.
I’m led to believe the Sausage Principle applies.
“Referenda Advise”
Sorry for this being way (way…) off topic, but I just had to share…
US television station MSNBC has just reported on an unexpected development in the case of the Sandy Hook Families vs. Alex Jones.
https://www.msnbc.com/chris-jansing-reports/watch/alex-jones-lawyers-accidentally-sent-sandy-hook-families-lawyers-years-worth-of-texts-145412165567
Jones is a(n infamous) radio/podcast personality, who runs what has become an extremist platform, “InfoWars”. On that forum, Jones had claimed that the Sandy Hook Massacre (scene of the mass murder in 2012, when a 20-year-old shot and killed 26 people, 20 of whom were children aged between six and seven) was completely fabricated, a fictional false-flag operation. The parents of the child victims sued.
It has just been reported that lawyers acting for Jones had accidentally sent the lawyers acting for the families the complete download of Alex Jones mobile phone – packed with all his personal communications from during pre-trial proceedings.
It has also been reported that the contents of his phone – portions of which the Court has just ruled to be admissible – contradicts testimony given under oath, in particular Jones’ claims that his businesses were bankrupt. In fact, the data dump shows that “InfoWars” was earning him up to $800,000 a day, estimating his income for the last 3 years at north of a cool half billion dollars.
One suspects that this may not end well for Mr. Jones, especially as the early indications are that he has significantly perjured himself in an attempt to show his income being lower than the reality.
Watch this space.
Since I do not know of any way of contacting,
And supposing someone reads the comments,
may I pose a question?
Given your very interesting posts on your constitution, there seems to be an irreconcilable problem for the queen, or any future monarch. During her coronation she swore an oath to uphold the law. How, constitutionally, can she give her consent to a law that her government admits breaks the law? (OK, in this case an international treaty).
I am well aware that logic and constitutions do not sit well together but ………………..
She didn’t swear to uphold the law. The relevant parts of the oath are: “swear to govern the [places] according to their respective laws and customs” and “to your power cause Law and Justice, in Mercy, to be executed in all your judgements”.
Neither of these requires upholding every possible law nor says anything about international agreements.
Before I had studied law an undergraduate and doctorate level I was a junior staff member in an organization involved in a contract dispute. The purchaser agreed to buy a property which my employer owned. The contract was subject to various conditions one of which was intended to address the position if the purchaser did not obtain planning permission for change of use. In which case he did not need to proceed. In the event, before planning permission was considered the market price for the property rose to such an extent that the purchaser’s offer price was (for him) a bargain even without planning permission.
My employer’s lawyers (including a barrister) advised and argued in court that the clause was for mutual protection and the buyer could not unilaterally waive it. I watched the barrister argue this in court and witnessed him squirming and putting forward a feeble argument (any proposition which relies on telling the judge that the case being argued is “self evident” is my definition of feeble). My employer lost.
When I subsequently came to understand the law I was at a loss to understand how any competent legal adviser could advise that the relevant clause was for mutual protection. It was clearly for the buyer’s protection and meant he did not have to go ahead with the purchase in the absence of planning permission for change of use. He was, therefore, as the law stood then, perfectly entitled to waive that clause as it was for his protection. (It may be the same now – as I don’t follow this area of law any longer I don’t know)
The lawyers advising my former employers were, frankly, incompetent. My employer did what the lawyers advised. The advice was awful. This was no hotheaded, thoughtless “we will fight them as we are in the right” position. It was carefully considered by senior staff (I was far too junior at the time to be involved). The lawyers advice was poor. I say this not just because the outcome was unfavorable, but because from my later studies I could see that the case law was clearly against my employer’s stance. The advice was taken and my employer suffered the consequences having to sell the property at the original price but also getting hit for substantial legal fees,
As a junior staff member, were you actually reading the confidential advise provided by the lawyer to your employer? Or are you assuming that the argument that the lawyers ran in court is one which they advised the employer was not only respectable or arguable, but was in fact likely to succeed?
And. Sometimes the only argument available to a client may be a very weak one. The advice may be that reliance on that argument is unlikely to be successful. The client may decide to go ahead regardless, for whatever reason, good or bad. In that case, guess what, you don’t present the argument as if you, the advocate, have no confidence in it.
Topically, we again have a case where the Christian Legal Centre is acting on behalf of (nearly)-bereaved parents with grown child, considered by doctors to be brain-stem dead, still on ‘life support’. They are leading the parents and the NHS’s lawyers a pretty dance through every legal avenue on the plane. Who is the client here? Who is foolish? The parents – or the funders of the Christian Legal Centre.? This is tragic. But should the rest of us be paying the costs of fighting the case on behalf of the Hospital?
I’d be minded to accorded considerable latitude to parents living with the unimaginable (as its put in the song “It’s Quiet Uptown”, from Hamilton, about the Hamiltons grieving the death of their son):
“There are moments that the words don’t reach
There is suffering too terrible to name
You hold your child as tight as you can
And push away the unimaginable”.
Archie Battersbee is nothing like grown – he is 12.
For all the media attention they garner, I’m not sure these matters are a material drain on the courts’ resources. They are rare, dreadful cases where one can only feel the deepest sympathy for the parents. I’m not sure that fighting abuse of the courts based on these cases, which of their nature involve some of the hardest decisions doctors make, is sensible. In another case involving an adult woman with anorexia who wanted to cease treatment the court held in her favour – and in that instance the hospital had sought its guidance.
I do feel that the charity here is unhelpful – but it is notable that the first instance decision WAS flawed, hence the first outing to the Court of Appeal (who arrived at the same practical conclusion but by quite different reasoning). The second outing and Supreme Court application related to a UN intervention. Admittedly the boy’s poor parents seem to have sought this.
Of course, one important exception to the lawyer-client distinction is prosecutors. De jure in most of the US (because DAs are directly elected) and de facto in England (because the CPS is operationally independent) prosecutors are responsible for both “client-side” decision-making (which cases to prosecute and how much resources to put into each prosecution) and “lawyer-side” work (assessing the legal strength of a case as an input to the decision to prosecute, and actually litigating it after the decision).
I don’t know how much of what is wrong with criminal justice comes from the fact that a prosecutor is his own client, and therefore a fool.
if, say, a lawyer says there is 60:40 chance of winning a civil claim, they have not got their advice wrong if a client then loses.
A prospect which I think many clients are acutely aware of. A friend who moved from law into mediation told me that the quickest way to persuade a client to settle was to tell them that their case was fairly strong, say 60:40; he said he’d literally seen the blood drain from clients’ faces on hearing those odds.