10/19/2005

The Last Corruption of English Justice

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.

5 Comments:

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7:34 PM  
Blogger The g-Gnome said...

Does anyone else think this spammer's an ugly bastard?

9:46 PM  
Blogger Brian said...

I quite agree: he's no beauty. And he can't be too bright, either, if he always accompanies his nauseating spam, fouling other people's blogs, not only by his portrait but also by his name and e-mail address. It would be entirely appropriate, for once, if his e-mail address were now to be saturated with equally repulsive spam.

Incidentally, I'm not sure whether to be flattered or embarrassed by your extensive quotation from my reply to your comment on what I thought was a pretty uncontroversial post on my own blog. Nor am I sure about the relevance of your announcement of my former job, from which I retired long ago, or of the handle that went with it. If it was meant to imply that such a person must be filthy rich and therefore unutterably miserly to begrudge a few pennies to companies that make him pay for ringing them up (calling them, in American), I can only assure you that (a) I'm not rich, either filthy or squeaky-clean, although I have enough to live on and don't complain, and (b) my blog entry about the 0870 scam had nothing to do with saving money, and everything to do with resentment at the contempt for their customers that this greedy and annoying practice on the part of so many of our companies reveals. If we can find a way to circumvent it, so much the better.

PS: Do you really intend to force those who don't happen to use Blogger for their blogs to sign up for a blogspot blog in order to post a comment on your own blog? Rather a deterrent, I would have thought!

Cheers
Brian
http://www.barder.com/ephems/

5:45 PM  
Blogger Brian said...

PPS: I'm sorry to see you write:
"Call me old-fashioned, but one had always thought that lawyers were required to act to rather higher standards than greengrocers."

Why on earth had 'one' always thought that? My father-in-law was a greengrocer and I regard his ethical standards as having been 'rather higher' than that generally ascribed to lawyers. There's more about him here.

Brian

11:42 PM  
Blogger The g-Gnome said...

Brian,

Firstly, I'm delighted that your opinion of comment spammers is as low as mine - a topic to which I will return.

My sincere apologies if you thought that my mention of your title was inappropriate. You do mention it on your own blog, and, as is the way of these things, it survives after your retirement. Not being very au fait with the etiquette surrounding such usages, I can assure you it was not my intention to cause you any offence.

However, I am not so naive to assume that the titled are all, in your words, 'stinking rich'; nor, after several re-readings of both posts, do I think I've written anything that might possibly lead a reader to conclude that I believe any such thing.

I am a user of 0870 services as well; however, I also sit at the end of one of them in order to make a living. I do have something of a vested interest in their survival for the time being, because if they are abolished right now there's a distinct possibility my job would hotfoot it out of the UK on the great globalisation train to Bangalore, leaving myself and my other unemployable graduate colleagues to retrain as hairdressers. The 0870 practice is both greedy and annoying, for sure - however, I also feel the same way about the payment of income tax. At least you can elect not to phone 0870 services.

As for your observation that posting here is awkward, all I can say is that it's my blog and I'll decide how posters can leave comments. As you've asked, current anti-spam measures are considerably more relaxed than they used to be, after the outbreak of a severe comment spam problem - energy drinks, etc. Two months ago, I restricted comments to 'Team Members Only' after being spammed by the owner of a sex-shop in Atlanta, Georgia, whose services I don't want, and even if I did - I couldn't get there!!

Finally, that the ethical standards of greengrocers are high is not in dispute - the laws on weights and measures demand it. It may interest you to know that my maternal grandparents were also greengrocers. However, I have never yet come across a greengrocer who required to be a member of a recognised professional body in order to trade, and whose ability to trade could be restricted by that body; never known one who is obliged to pay for professional indemnity insurance; never known one who is obliged to keep their customer's affairs confidential, even unto the grave; never known one who is obliged to keep funds for their customers; never known one who has to be on their guard against the making of 'violent profits'; never known one who knows the precise formalities involved in selling a house, obtaining a divorce, making a claim for compensation or who knows how to negotiate their way through the Hague Convention or the Road Traffic Act 1988.

In 18 years of studying law, intermittently practicing law and generally hanging around lawyers, I have never yet met a greengrocer who could do all these things nor who is subject to the same disciplines as lawyers.

11:23 AM  

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