22 April 2003
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The legal profession has had to develop a fairly thick skin in order to resist all the criticisms fired at it of late over its charging habits. Nevertheless, it can still prove to be a sensitive beast when turned on by one if its own. So it was this month when Mr Justice Lightman went in all-guns-blazing (as far as judicial discretion allows, anyway) when he accused today's legal profession of being "less a profession than a business".
In a speech at Sheffield University this month, Judge Lightman bemoaned the collapse of the once "clear demarcation" between the Bar and the solicitors' profession, lambasting chambers that were "increasingly in all but name" partnerships and the yet more "dangerous development" of the total service law firm.
"The developments reflect the influences operating to convert legal practice from a profession into a business," argued the High Court judge, who was delivering the sixth Edward Bramley Memorial Lecture at the University of Sheffield. "In the case both of solicitors' firms and barristers' chambers: their increasing sizes, enlarged staff and facilities, massive investments in new technology, and their recourse to sophisticated business management and public relations techniques do not come without a high price for their clients and the public interest."
Such comments were never going to find favour with the leaders of commercial law on both sides of the profession - and, of course, they did not. "Is Gavin [Lightman] still in touch?" wondered one magic circle partner, a social acquaintance of the High Court judge. "He's been in the Chancery Division for a number of years and I doubt he's been involved in the sort of transactions we do for a long, long time." Another head of litigation offered his own one-word critique: "Luddite."
The Sheffield lecture reviewed the 32 years since the High Court judge first became a barrister and so consequently covered much territory. In fact, he offered a blistering critique of the more "disturbing features" of the adversarial system, a bleak review of access to justice ("costs render litigation ruinous even to the middle, and indeed upper-middle, classes"), as well as his discourse on the failings of the "mega" total service firms.
Nor is this the first time that the 64-year-old judge has attacked the civil justice system: only last year he complained of the "already outrageous and ever-increasing costs of litigation" when addressing the Centre for Effective Dispute Resolution. In Sheffield, though, he upped the ante and called "for an investigation in the public interest and - unless the public interest is otherwise protected - by regulation".
So what is the charge made against the commercial lawyers? Well, to be fair, Judge Lightman's speech was not all negative and he did observe that the legal competence of lawyers today was "higher than 30 years ago".
However, he believes the identity of the two professions has changed beyond recognition during that period. Back in his day, the solicitors were the generalists "providing the services of a general practitioner to their clients, and referring clients with specialist needs to junior and leading counsel". Not any more. Apparently, the number one threat to the clients' best interests is the creation of "the total service law firm".
He argued that over the last 12 or so years firms have made great strides to provide full "in-house" litigation services for their clients, training partners and solicitors to fulfil the roles generally undertaken by barristers, in particular drafting pleadings, settling evidence, preparing skeleton arguments and acting as advocates. "This development may be welcomed, but subject to one critical safeguard: the special relationship with the client must not be exploited to obtain an abuse of the monopoly of the clients' legal services," he said. He then went on to suggest that exploitation was exactly what was happening.
For the architects of such firms, it is a somewhat topsy-turvy analysis of the structural changes that have taken place. It is not we who are exploiting the clients, they argue, we are in fact responding to their needs.
"The law is certainly treated more as a business than it may have been in the past, and it's perfectly true that it faces financial pressures, but those pressures don't necessarily mean that traditional standards no longer apply," counters Jeremy Sandelson, London head of litigation at Clifford Chance. "The flaw in the argument is that he is suggesting that business pressures work inevitably against the business interests of our clients."
Lightman's argument presupposes that commercial clients are capable of being duped by the 'mega' firms or, as he puts it, that they are "tame" clients. "The clients that we deal with and the clients that a total service law firm deals with can't be described as 'tame'," argues Tim House, head of the London banking and finance litigation group at Allen & Overy. "They're discerning, sophisticated and demanding people." In fact, most clients are served by in-house lawyers drawn from the total service firms.
"Clients aren't shy violets," reflects David Gold, worldwide head of litigation at Herbert Smith. "If they feel that they're being overlawyered and overcharged they can say so, and I'm sure they do. They like to have their 'experts' - someone like me - who'll give them a tactical view of what the litigation involves, as well as the right commercial advice."
The heart of his attack on the total service philosophy revolves around solicitor-advocates, and Judge Lightman is just the latest to express disquiet from the bench about their progress. Earlier in the year, High Court judge Mr Justice Burton also hit out at solicitor-advocates for "undermining" the junior bar.
Judge Lightman said: "There's a real risk that the firms will - and there are substantial grounds to believe that the firms do - adopt practices and policies designed to elevate their litigation profile and secure full fee-earning utilisation of staff notwithstanding their relative lack of expertise and higher charge-out rates."
Yes, there is a theoretical danger, acknowledges Mark Humphries, head of advocacy at Linklaters, but it is one that has been "completely eliminated" by the Law Society's code for advocacy, he says. As Humphries points out, there is a professional obligation on a solicitor to advise a client as to the best choice of advocate for every case and, specifically, advocates "must not accept a brief if it causes them to be professionally embarrassed", which they will be if they lack sufficient expertise or competence to handle the matter.
"Sir Gavin seems to think that the Bar has its code of conduct, but solicitors are businessmen and are trying to muscle in on the Bar's territory and make cash out of advocacy, whereas the Bar sees it as a noble calling," argues Humphries. "Neither of those observations would be correct."
But what has really inflamed passions is the assertion that firms "increasingly foist" partners and staff as junior counsel on leaders as a way of gaining exposure and experience. Such a strategy would be "defensible" if there was no need for a junior counsel and no charge was made. "But it's not in practice just to obtain exposure and experience - it's also to obtain fees," says Lightman.
Such practice would be "patently incorrect", is the blunt view of Clifford Chance's Sandelson. "I'd never say to a client one of my partners or associates should be junior counsel to gain exposure or experience. I'd only do that if it were in the client's best interests to do so rather than mine." Gold at Herbert Smith agrees, saying that it would be "absolutely outrageous".
From the perspective of the Commercial Bar Association (Combar), its spokesman Roger Masefield, a barrister at Brick Court Chambers, says Combar welcomes the solicitor-advocates and the "competitive influence on us. But we don't see that many acting in large-scale litigation anyway," he adds.
And what does Judge Lightman have to say of his old colleagues in chambers anyway? The judge has in the past been an outspoken critic of the silks, a system he once described as "undoubtedly the occasion and pretext for a mark-up in fees". Again he has aimed a sideswipe at QCs, calling the rank "a continuing luxury" that is regarded as "a licence to print money".
He was also critical of the evolution of chambers as a "corporate existence". Masefield at Brick Court "respectfully distances" himself from the judge's suggestion that there has been a subservience of professional standards to a business culture. "I don't think that's right at all," he states.
What about the charge that clients are getting a worse deal as lawyers focus on profits? "I think the market speaks for itself," he says. He flags up the Cap Gemini report, commissioned by the Lord Chancellor's Department, which estimated that in the region of £800m in invisible earnings comes to the UK through international litigation conducted in its courts.
Again, Sir Gavin makes a number of specific arguments, of varying importance, against the Bar's new commercial leanings. For example, he attacks the increasing readiness of chambers to publish legal works as an exercise to attract work. ("So what?" asks one lawyer.)
More seriously, he argues that chambers have put into effect rules, enforced by the clerks, that if an instructed member of chambers requires a leader or junior, they will be selected from the available pool in that chambers, thus "mopping up local unemployment". He regards the practice as "deplorable as it is unprofessional" and that it is now "widely accepted".
However, it is not a criticism of the Bar that appears to trouble solicitors unduly. "I've never come across that as a rule," says one representative solicitor. "And if I did, I'd go elsewhere." Less surprisingly, it is not a practice that barristers readily acknowledge. "I haven't encountered that," says Masefield. "I'm not sure how easy it would be from his perspective to spot a trend."
"Navel-gazing is important in any profession and it's a very interesting analysis," reflects Masefield of Judge Lightman's speech. "But most of our clients are very happy to see us moving out of our Edwardian existence and from the old Inns of Court."
Others are less charitable. "Gavin wants the best of both worlds," reflects one lawyer. One minute he is the free-thinking radical putting the boot into the silks; the next he is the loyal traditionalist moaning about the passing of the good old days.
|The 'dangerous development of the total service law firm'|
|From a lecture given by Mr Justice Lightman at the University of Sheffield on 4 April 2003: 'The Civil Justice System and Legal Profession - The Challenges Ahead' |
The larger firms are increasingly setting out to provide a total service for clients. There is an assumption of the role occupied by counsel as experts: the expertise now lies with the solicitors; a client's needs are fulfilled within the firm and no potential rival is afforded access to the client.
There is a price, however. First there is limited scope, and still less inclination, to consider whether the client's needs for expertise can be better satisfied outside the firm. The client is a 'tame' client that will naturally rely on the firm for advice on this question, and there must be grave doubts whether the advice will be full or disinterested.
Second, with the increasing concentration of partners in such firms on narrow areas of expertise, the need for a number of partners (each earning their fee) on any case increases. Rarely will one partner be sufficient. This generates a higher return for the firm but no better service for the client.
Third, solicitors in such firms, if required to move, having for years concentrated on their speciality, prove to be scarcely employable elsewhere, their expertise being too confined.
The 'total service' philosophy finds expression in the field of litigation.
There is ground for concern over whether the clients are receiving full and detached advice on the options open to them. There is a real risk that the firms will adopt practices designed to elevate their litigation profile and secure full fee-earning utilisation of staff by designating members of the firm to settle pleadings, prepare skeleton arguments and act as advocates, irrespective of their lack of expertise and higher rates.
Firms increasingly foist partners and staff as junior counsel on leaders they retain to obtain for their members' exposure and experience. If that was it, with no fee being charged for the public relations or educational role of the solicitor, the situation would be defensible, but in practice it is not just to obtain exposure and experience - it is also to obtain fees.
If the firm decides to provide education, it must be at its own expense - the client should not be expected to pay for it.
It is vital if professional standards and duties are to be maintained and fulfilled that, when the firm has a pecuniary interest in so acting, the solicitor has in mind their duty to act in the single-minded interest of the client and obtain the fully informed consent of the client.
If a solicitor assumes this role without providing the client with the benefit of such advice, and without providing the client with the full ingredients for an informed decision, they are abusing their relationship of con-fidence with the client.