The Last Corruption of English Justice
"I don't see why consumers should not be able to get legal services as easily as they can buy a tin of beans."
Bridget Prentice, Minister in the Lord Chancellor's Department, October 17 2005.
Call me old-fashioned, but one had always thought that lawyers were required to act to rather higher standards than greengrocers.
One knows nothing of Ms. Prentice's career, nor frankly does one wish to; however, her comment's vacuity is representative of her Government's contempt for everything that is traditional; everything that is old; everything that actually works.
In his speech to the Labour Party Conference last month, Tony Blair described his party as change-makers, and said, 'That's how we must stay' . His subtext, of course, was that if you do not want change it shall be thrust upon you regardless, even if it's to your disadvantage.
The changes which are being proposed to the structure of England's legal professions are to nobody's advantage; not to the advantage of clients (I refuse to word the word 'consumers' in relation to legal services) and most certainly not to the advantage of lawyers.
The English and Scottish legal systems vary from those in the States in that they are two-tiered. At the front line are solicitors, usually operating in partnerships, coal-face workers regardless of whether the coal-face is a one-man practice on a Manchester corner or the boardroom of Goldman Sachs. Barristers, or advocates as they are known in Scotland, enjoy rights of audience in the higher courts which solicitors traditionally did not have, and usually possess greater advocacy skills and very much more area-specific legal knowledge than the solicitors who instructed them.
The public were traditionally unable to instruct barristers or advocates directly. Instead, they would be guided by the informed choice of the solicitor. In Scotland at least, the solicitor was responsible for payment of the advocate's fees and honoraria, so it was in their interest to choose wisely on their client's behalf.
The forces of consumerism have been chipping away at this edifice for the past 26 years. A new hybrid, the solicitor-advocate, was created, giving some solicitors rights of audience in the higher courts. Data on how this caste have actually performed once they reached the Olympian heights might be hard to come by. In the late 1990's, Multi-Disciplinary Practices (MDP's) were permitted, enabling solicitors to band with accountants.
This created a quandary of ethics. The solicitor's duty is one of confidentiality, the auditor's duty is to make all relevant information public. But hey-ho, one stop-shopping's good for the consumer, what, what!
Well, aye and no, if your solicitor had hitched their wagon to Arthur Andersen's.
In England and Wales, the public are now able to instruct a barrister directly. They no longer have to rely on the advice of an experienced intermediary with duties of their own before instructing an adviser whose decisions and actions might have permanent consequences. But cutting out the middleman's good for business, don't you think?
Some of the changes that Prentice is fronting are just absurd. Permitting legal practices to float on the stock market would create institutionalised conflicts of interest. The duty of a solicitor is towards their client, the duty of the directors of a quoted company is toward their shareholders, and these duties are absolutely irreconcilable. A reasonable minister exercising a reasonable degree of care and skill should be able to see that. So why are they even suggesting it?
This is the best bit -
"under proposals known as "Tesco law", supermarkets and organisations such as the RAC would be allowed to offer legal services to the public for the first time".
I have never gone to a lawyer's office to buy milk or carrots, so why should the same principle operate in reverse?
Sorry, sorry, we've got to 'widen access', and be more 'inclusive'. You can't be inclusive towards solicitors - they're still going to be regulated like nobody's bloody business. And if you complain, then that's just all bloody lawyers sticking together, innit?
Not really. There are few people around who have less time for much of the legal profession than I do. However, it is going to be the public who will be short-changed, abetted as usual by the supine and craven Law Society and Bar Council. For all its faults, the previous system worked. It made going to law difficult and sometimes expensive - but going to law should be difficult and expensive.
By going to law, you seek to engage the services of people who have undergone years of training and who have accumulated years of experience in difficult matters of the umost importance - so why should they be remunerated like fishmongers? Most clients expect the proper wages for their own efforts - why should those whose aid they seek be any different?
And even the most talented lawyers are unable to make silk purses of the sow's ears of cases that most of their clients present them with.
The cult of 'consumerism' now holds such a grip over us that anything which is seen to be difficult, to be hard, has to be smashed. The public just can't handle it any more. Two days ago, I eavesdropped on the blog of a chap called Brian Barder, who doesn't like dialling '0870' numbers (in the UK, telephone numbers prefixed 0870 are classed as 'national rate', are charged at 10 pence per minute and are used by many customer service centres.) Brian is actually Sir Brian Barder KCMG, a former British High Commissioner (ambassador) to Australia. I suggested to him that the best way to avoid having to pay such charges would be to read the terms and conditions of service before making an 0870 call - more often than not, the query would be covered there.
His reply was telling -
"On your first point, I must say I regard the ‘Terms and Conditions’ that almost every business imposes on its customers (especially in any online transaction) as in effect another scam, since it’s impossible in practice to buy the service or goods you want without confirming that you have read (which you generally haven’t, unless you have a lot of time on your hands) and accepted the T&C, which on close inspection may well turn out to be outrageous. But however much you Google around, you’re most unlikely to find an alternative supplier whose T&C are any less onerous. So the discovery that you have bound yourself to some condition which relates to your query or complaint is not very comforting".
So much for traditions of English law such as caveat emptor, if perfectly accessible terms and conditions of contract are regarded as scams.
But such rampant destruction of that which actually worked has very dangerous social consequences. If legal services can be accessed at supermarkets, what respect for the law can possibly be instilled? Going to see a lawyer doesn't have anything like the mystique it should have - criminal legal aid has already put paid to that. What incentive will students have to become lawyers if their chosen profession is constantly under the government cosh, threatened with heavier and heavier penalties while driving down their wages?
No society can survive without its middle class; but if you can't kill all the lawyers, I suppose killing the legal profession is the next best thing instead.