25 August 2022
The accountancy professor and campaigner Richard J Murphy launched an attack on certain lawyers on Twitter.
It is important that this attack be understood on its own terms, without misrepresentation and distortion, so I have screen-grabbed the thread below:
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I think Murphy is wrong.
I think – perhaps counter-intuitively – that it is a Good Thing that those who are powerful in society have to have lawyers in place when exercising their power.
The starting point is the simple observation that modern societies – unless there is some happy intervention – tend to be unequal.
This means that in modern societies there tends to be people with more power than others.
These people would tend to have power, regardless of whether they have lawyers or not.
So why do those powerful people need to have lawyers?
It is because of a thing called “the Rule of Law” which means that every exercise of power has to have a lawful basis.
“The Rule of Law” means the powerful cannot do as they wish: instead they have to comply with the law.
That is why powerful people often have lawyers.
Imagine a society where those with power did not need lawyers – that the powerful could exercise their power without worrying about whether they are breaking the law.
That would be an even more brutal and unequal society.
In each of the categories that Murphy posits in his thread, the real significance is that the powerful have to have lawyers – because however mighty those powerful people are, the law is mightier.
What would be more worrying is if the powerful could get their way in each of Murphy’s categories without needing lawyers.
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The points I make above are not original.
The great Marxist historian E. P. Thompson in Whigs and Hunters (perhaps the best British work of practical legal history), and other books, pointed out that the Rule of Law helped those without power in their dealings with those with power.
I happen to have spent time in City law firms, and I have seen how the need for compliance with the law means that those with power have had to do things that they otherwise would not do.
If Murphy is correct, then those with power would simply exercise that power without legal advice – and without any legal constraint.
This would not have the positive effects that Murphy possibly expects.
The applicable laws may well need improving and reform – there may need to be better balances struck between the interests of those with more power and those with less power.
That is the job for the legislature.
But that those with power need to have legal advice is a Good Thing.
For without the powerful having this need to take legal advice, what could go wrong would go wrong – as another Murphy may have once said.
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The mistake Richard Murphy is making is rising to the bait of Tory culture war attacks on lefty lawyers and attacking lawyers who work for powerful elites in return. Some of his comments are justified but as this blog says the powerful need lawyers because they must comply with the law. Their fees are high because of the wealth of their clients and this contrasts badly with junior lawyers struggling to make endsworking in an underresourced criminal justice system.
I’m a subscriber to this blog, and I approve this post!
I think that both you and Murphy are correct. It is a good thing that these clients need lawyers. And these lawyers deserve criticism when their work for those clients creates injustice. Both things can be true at the same time. And I think they are.
“And these lawyers deserve criticism when their work for those clients creates injustice.”
Why?
The law – not the lawyers – is the sole cause of any supposed injustice.
You’re making the same mistake Murphy makes.
I think Professor Murphy is being specious at best, perhaps I’d go so far as to say disingenuous with his arguments.
Now to be fair, I agree with a principle he makes in his first statement, if not the way that he says it. Professor Murphy would have us believe that it is “City Lawyers” who conjure up “devious tax schemes” that help their rich clients avoid taxes and get richer, schemes which are unavailable to us poor saps.
Yet even a cursory inspection of this argument should reveal its fatal flaw: (except in a very limited sense – see below) lawyers do not write the law, they practice it. Important difference.
In this case, if the Professor wishes to wring his hands and gnash his teeth and rail against the injustice of complex tax schemes, perhaps he would like to give some consideration to the MPs and members of the House of Lords, who conceived of the nation’s tax laws and placed them on the statute books.
And if the Professor was *really* willing to bemoan the injustice of the system that governs us, he might be willing to to accept that successive governments across the last 40 years – both Labour and Conservative – have either enacted laws to “help the rich get richer”, [which I believe to be the case] or at best have done nothing to help redress the balance.
Now… if the professor had made an argument against unscrupulous lawyers – for example those who ignore their duties (first and foremost) as Officers of the Court – that would be different, because it would be a reasonable, fact-based argument.
That is not the position he is taking here.
And one suspects he knows it.
Oops – I claimed that there was a limited example in which lawyers can “write the law” and then didn’t address the point.
I meant to add that this is through case law.
Where a lawyer can make a convincing argument before a Court and the Court goes on to make a ruling, that ruling can then be cited in future cases, becoming over time “established law”.
Hopefully that’s not too contrived as an example, but it is what I had intended to include in the previous post.
I think we see something of this in the Attorney General’s recent instructions to lawyers advising ministers. It’s not that she doesn’t want legal advice, she doesn’t want to be constrained by the law.
As you say, as long as we have laws constraining what or how the powerful can act, they need to have lawyers telling them where the lines are and (if the clients listen) keeping them on the right side of them.
I really like this post David. Murphy‘s tweets struck me as crass at the time I read them – he seems to me to make two errors. First, he assumes that the lawyers he so readily condemns are the people who initiate and drive the policy he dislikes. There is actually no evidential basis for that – for all he knows they have attenuated the original plan.
Secondly, his argument is essentially that those without power should be able to persecute those with power. That simply tips the seesaw the other way: plainly, the better approach is that power should be equalised as much as possible.
That is a boringly detailed process requiring hard work. Succumbing to the temptation to thump your chest and proclaim, “I have a truly radical solution “ is not the way that change is sensibly effected in liberal democracies. And, however liberal democracies fail to achieve what we all want, they don’t fail half as badly as illiberal systems in which scapegoats are blamed for what other people do.
“Secondly, his argument is essentially that those without power should be able to persecute those with power. That simply tips the seesaw the other way: plainly, the better approach is that power should be equalised as much as possible.”
(forgive my borrowing my favourite DAG response) Well.
The seesaw needs to be tipped the other way simply because the powerful tend to be rather rich, which gives them a significant advantage in any legal dispute. Exceptions merely prove the rule. You can’t equalise the power inequality in terms of money (no government will hand out money to just anybody) so you are just left with legal measures?
I believe both you and Mr Murphy have a case. It was very many years ago that I met a tax lawyer who justified himself with the argument that he spent most of his time persuading clients to pay the tax that was due. The other ‘legal abusers’ could no doubt defend their activities in similar terms.
However, and it’s quite a big however, anybody who really believes these suppliers of ‘services to the rich’ really benefit society to the level of their remuneration compared, for example, to the lawyers dependent on legal aid cases, is probably one of them. Douglas Adams has a character in the Hitchhiker’s Guide To The Galaxy series whose life’s work is to act as a social worker to the rich, continually reassuring them that they are worth all that money, and that they are good people really. I sometimes think that rather too many intelligent people in our world aspire to follow that path.
So, yes it’s a good thing that lawyers are there to advise the rich and powerful on what they can and cannot do. It would be an even better thing if they were to advise them on what they should or should not do. And it would be better still if all those who do this kind of work also had to put in a stint offering their excellent advice to those who cannot afford to pay for it.
Beautifully reasoned, with a perfect denouement.
“It would be an even better thing if they were to advise them on what they should or should not do.”
Wouldn’t a lawyer who advises a client on what s/he should or should not do would not be a lawyer.
S/he would be a priest, or a psychologist, or a trusted friend?
Or even an “ethics advisor” .
Let’s also remember that lawyers are bound NOT to advise client to do illegal things, and in certain cases (admittedly rare) are able to breach the duty of confidentiality. There’s a discussion here: https://www.lawyersdefencegroup.org.uk/confidentiality/
Well said.
To put it another way, the job of lawyer is often to say to one’s client “you can’t do that – the law (our society) won’t let you do it” just as much as to say ” you can do that (the law will let you do it) and here’s how.”
If memory serves there is an entire schedule within the corporate tax return where the accountant has to list any tax avoidance schemes (CT600J I think). Accountants are little better than government agents in that respect, at least if they’re doing the job as it’s intended to be done, regardless of what any lawyer has advised.
The problem isn’t the profession earning money from offering advice on how to follow the laws but from the one designing them in the first place: politicians. Decades have been spent by both sides of the political aisle tinkering with a system that has probably needed a complete overhaul for quite some time now.
Instead all we get are attempts to gain temporary political advantages with pointless games the results of which are often forgotten by the following year anyway. These games, however, can still end up leaving behind them the sort of legal detritus that can cause problems later on.
These games aren’t just limited to the financial realm either, and not always without potential harm from the outset: witness for example the government’s constant attack on judicial reviews, which seems relevant given part of his thread.
‘Undermine democratically approved laws’? By using them? Really?
Surely that would normally be because the laws themselves have simply been badly thought out rather than the evil lawyers ™ moving onto some sort of weird quantum law practice where they can change the outcome just by using a radioactive source, a cat, a closed box and be willing to engage in a little animal cruelty in the process?
It won’t be illegal or legal until they open the box…
The misconception is in assuming a ‘Lawyer’ agrees and associates themself with the ethics and morals of their client. We do not get to ‘choose’ our clients on that basis. Everyone deserves help with understanding the law thereby giving them access to justice and upholding the Rule of Law which prevents anarchy. The ‘Cab Rank’ rule for Barristers readily illustrates this principle whereby a Barrister cannot refuse a client simply because they do not ‘approve’ of them on whatever basis. A further illustration is having worked for many years representing residential tenants I never once considered a Landlords legal representatives to be in any way reprehensible for merely fulfilling their role and duty to their client. Equally, the same applies to all the other examples quoted by Mr. Murphy not least Tax Lawyers not forgetting that King John started a Rebellion when he wanted a tax of only 10% . ‘Lawyers’ in their professional role are neither Left or Right wing merely impartial advisers on what the law provides. If that is not agreeable to you seek to change the law not the lawyer.
Yes, we live in the age of the splenetic rant, as this as always excellent blogpost recognizes, but what was interesting to note is that the majority of replies address only Professor Murphy’s fury directed toward the tax lawyers when his thrust is less homily than discourse on an administration’s signal refusal to address social injustice, which is why we should take a moment to reflect that this Party (now unrecognizable to me, I’m afraid) has held political power for what for many has been a very long twelve years: Richard Murphy is only saying what we all know, and what he is saying *is*, rightly, political.
I agree with the position taken by DAG but, at the same time, I can see why Professor Murphy (and many others) bridle at the ‘behaviour’ (for want of characterisation) of *some* lawyers who seem bereft of any ethics, especially those actively representing oligarchs to launder their ill-gotten gains, as commented on in the media. This is quite separate from the cab rank approach to barristers and advocates receiving their briefs (e.g. Dina Rose/Cayman case) as it relates more to ‘retained’ lawyers (not sure if that is the correct term – whatever, the “my lawyer”) who specilaise in working for very welathy clients. I’m not terribly convinced they do that work in a conscientious attempt to constrain powerful excess.
Mr Murphy is aiming at wrong target, surely. Rather than vilifying lawyers who legitimately advise their clients on the law and argue their clients’ case in court, he should be railing at the laws that make these things possible. If they are wrong, or incomplete, or badly drawn, that’s not the fault of the lawyers who work with them.
“Mr Murphy is aiming at wrong target, surely.”
Without question.
With no apologies for the comparison (I don’t think they’re odious at all) his comments strike me as being as misdirected as – after finding out that your painter has used entirely the wrong shade on your living room walls – blaming the PAINT for being the wrong colour.
More seriously, I again see parallels between what underpins this ill-judged tirade, and criticism of other parts of the public sector: like the unfortunate worker bees at the pointy end of DWP’s service delivery who are routinely held directly responsible for the policies of the government of the day – such criticism generally coming from the same Right-wing media that proselytise for the government responsible for the polices.
Rich and powerful client: “What does (such and such provision) mean?
Lawyer: “Well, what do you WANT it to mean?”
Before retirement I spent many years as a lay Welfare Rights Officer, and I remember many variations on the above conversation, focussed on social security law. The difference there, of course, was that we were looking for ways to use the law to advantage poor and powerless people.
The best funded setting in which I did that work was in a local authority team, but that team was disbanded not long after the 2010 General election. Even in that setting, we were not funded anywhere near as well as the lawyers referred to in Mr Murphy’s post, and had to turn away many potential clients. But I would have to accept that what we were doing was essentially the same, just at the bottom rather than the top of the heap.
And while, as DAG says, the law is necessary to keep the powerful in check, the question still is how to fund access to it for the powerless. Legal Aid has failed.
Could a National Legal Service, modelled on the NHS, work?
A lawyer has duties to his clients. Unless his (or her) retainer is limited, they include, for example, the f0llowing. If the lawyer can find a way for the client to avoid legally liability for tax on a transaction where policy and legislation intended tax to be paid, the lawyer is bound to tell the client and to do whatever is needed to avoid the tax. If he can find a legal way for the client to suppress embarrassing facts, he has the same duty. If he can see a way that the client can avoid a moral obligation, again. The decision on whether to take advantage of the lawyer’s ingenuity lies with the client, not the lawyer, who may not substitute his conscience for that of his client.
This derives from what my late father, not a lawyer, once called my “Hypocritic Oath. To change is would mean a fundamental change in the duties of lawyer to clients and the rights of people who need legal advice. Maybe if legislation is better prepared, ingenuity among lawyers will become less valued. But that will be a loss to those who seek justice as well as to those who pursue only their own interests.
“The decision on whether to take advantage of the lawyer’s ingenuity lies with the client, not the lawyer, who may not substitute his conscience for that of his client.”
I wonder if you have any idea just how dramatic the second half of your sentence sounds? Even soldiers are not allowed to commit certain acts using the justification of ‘following orders’. It may be argued that that applies to illegal orders and a lawyer MUST respect the law but given the complexity of the legal structure (not – perish the thought – in any way the responsibility of lawyers) the adviser has tremendous discretion in advising the ways the law may be complied with. The idea that highly intelligent and well-trained people are expected to suppress their consciences in exchange for the receipt of money is horrifying, and perhaps goes some way to explaining some of the problems in our world today.
I sympathise with your reaction. I’m a retired lawyer who from day 1 of his apprenticeship was told I must serve my clients’ interests as best I could. My clients trusted me to do exactly that.
If I recognised a way my client could, for example, lawfully avoid a heavy tax bill, and I didn’t tell him because I thought as a citizen, not a lawyer, people, particularly rich ones, should pay their taxes, I would have betrayed my client’s trust and what I saw as my ethical duty. I think I wouldn’t have been able to practice afterwards.
No loss, you may say? But is a medical doctor entitled to hide from a pregnant patient that she can have a termination if he does so because he disapproves of abortion? Is there a clear distinction?
Michael
Two things:
Generally, poorer people are not equal before the law (in practice) because they cannot afford the best lawyers (and, God help them, baristers) to represent their cause – something. I believe, known as “inequality of arms” and depending on the circumstances, a court can show favouritism (my specifc complaint relating to the UN (staff) tribunal process).
Secondly, the real problem that Murphy alludes to is surely the quality of the taxation legislation that he objects to. If more resources were put into framing it and deliberately closing the numerous loopholes, there would be fewer grounds for lawyers to challenge an interpretation before the courts. For instance, if a law were drafted explicitly to prohbit the use of tax havens as vehicles for “on shore” purchases designed to reduce tax liability, even the most expensive lawyer would be stymied, surely.
Far from there being a deiberate closing of numerous loop-holes, I can’t help suspecting that some of them are deliberately created, to the advantage of certain friends.
It’s like “Cui bono?” all over again.
PR would go a long way toward solving this perennial problem
Murphy’s thread complements Patel & Raab moaning about ‘activist lawyers’. I enjoyed this piece because I celebrate the rule of law, even laws I don’t like.
Don’t necessarily agree that the Powerful’s need for Lawyers in first two categories are a good thing. These lawyers are searching for ways to circumvent the Law, not to ensure compli@nce with the law. Nor are they advertising the loopholes they discover or manufacture to the legislators.and even when the legislators do become aware of the loopholes, there is rarely time for the necessary 2ndary legislation, never mind primary legislation, to close these dodges. It is too uneven a fight, and always will be unless the legislation is made entirely prescriptive, rather than proscriptive of the contemporaneous dodges.
And another thing …
If we are going to reference Douglas Adams we have to mention Hotblack Desiato who spent a year dead for tax purposes. (Hotblack Desiato was the intergalactic estate agent who would regularly set the controls of a des res for the heart of the sun.)
I’m a layman and a little late to this debate, but hopefully can add something?
I understand Richard’s ire.
He presents his case almost as good vs evil which appears overly simplistic, but at the same time, to the victims of their activities, and there are almost always victims either direct or indirect, that must be exactly how it feels, both individually and collectively?
One can blame the laws themselves, but surely those who practice the law, cannot be entirely free of morality and social conscience? One can choose to practice as a lawyer or choose to practice in exploiting the law, which is where I feel his greivance lies.
That grievance also lies in the government and its media supporter’s routine attacks on lawyers working to hold the government to account, while spending untold amounts of public money paying lawyers to prevent or deflect scrutiny. Similarly, attacking the Judiciary and demanding reform when they lose a case, yet staying silent when they win.
Having said all that, of course David has a point about the Rule of Law and the resulting need for the powerful to have lawyers to obey the law, but I would ask, are those lawyers in reality protecting us from the misdemeanours & excesses of the powerful, or merely protecting the powerful by finding ways to legitimise and hide them?