If I were a lawyer faced with planning the future of my business at the same time as carrying out my day job, I think I’d feel exhausted, bewildered and not a little terrified.For some time the pundits have been telling us there are too many lawyers and too many law firms and the majority of legal work can be done without a lawyer anyway. The enormity of the challenges faced by law firms with the increased use of technology, outsourcing and commoditisation, plus competition from non-legal providers entering the legal market following the Legal Services Act, were outlined by three of the country’s foremost law firm advisors at the Law Society’s law management conference last week. Richard Susskind, Stephen Mayson and Alan Hodgart all urged firms not to bury their heads in the sand, but to be proactive in getting to grips with understanding the finances of their firms and to plan for the future. Thankfully, for the legal profession, most lawyers are braver than I – a poll taken at the conference showed 84% of the 150 or so delegates saw the use of technology and commoditisation as an opportunity. And some parts of the profession have already begun to fight back against the prospect of ‘Tesco law’, forming joint branding and marketing initiatives to promote the use of ‘real lawyers’. QualitySolicitors.com launches its campaign officially next week after signing up 100 law firms. But can these self-styled legal brands, like QualitySolicitors.com or The Legal Alliance, really hope to compete in the public’s consciousness with the likes of Tesco, the AA and the Co-op?
The Office for Legal Complaints, the new body created by the Legal Services Act 2007 to handle complaints about solicitors, is to be based in Birmingham. The OLC, which has been allocated set-up costs of around £15m and annual running costs of £19.9m, will replace the Leamington Spa-based Legal Complaints Service next year. The LCS currently has nearly 350 staff, including around 200 caseworkers. Most are expected to have the right to move across to the new body under transfer of undertakings, protection of employment (TUPE) rules. Existing cases will continue to be dealt with by the LCS when the new body takes over. Law Society chief executive Des Hudson said he was ‘pleased the OLC will be based in a location enabling it to meet [the government’s] commitment that TUPE principles will apply to the transfer of staff.’
The operation of the traditional court needs to be rethought to take into account technological advances that have rapidly changed society and influenced jurors, the lord chief justice (pictured) said this week. Speaking a year after becoming head of the judiciary, Lord Judge said that the ‘oratory tradition’ of the courtroom might not help juries in the future. He said: ‘The jury system depends on people coming to court and listening to people speaking, and then thinking about and assessing what they have heard. If a generation arrives in the jury box that is not used to listening… then that changes the whole oratory tradition that we are used to. The way our jury system operates will have to be thought about very deeply.’ He suggested that, in the future, juries might be handed evidence on computers to take away and evaluate. Judge said that his main ambition over the next year is to ‘increase or restore public confidence in the administration of criminal justice.’ He also said that he is ‘extremely troubled’ by the ‘cascade’ of ‘extremely complicated and convoluted’ criminal justice legislation that has been passed by parliament in recent years. ‘We should have a system where people walking up and down the street know when they commit a crime,’ he said. ‘The legislative process hasn’t made that any more likely.’ Judge also backed the use of short sentences by Crown court judges. ‘The short sentence is sometimes the right sentence,’ he said. ‘If you have to serve your sentence in a very overcrowded prison, conditions – and there is a myth about how easy prison life is – are awful. If [a prisoner is] in custody in very crowded conditions… then the punishment is more severe than if they are not. For judges, if conditions are appalling they may want to reduce a sentence.’ He added that judges ‘spend a lot of time trying to decide what level of sentence is appropriate’.
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe, which represents more than 700,000 European lawyers through its member bars and law societies As the euro and the idea of Europe go into freefall, as the UK’s debts mount and swingeing cuts take place, let us talk about something really important: why is it that so few great artists have been lawyers?Of course, there are lawyers who write primarily about lawyers and their work, and who have became famous for it: John Mortimer and Frances Fyfield in this country, John Grisham and Scott Turow in the US. For those with long memories and ancient reading habits, there is A. P. Herbert, who was called to the bar but never practised. But, with due respect to these highly successful authors, they do not belong in the rank of great artists. Of course, most artists spend their life on their art, and do not have other careers. There are some who practise a profession very close to that of their artistic output: William Shakespeare and Harold Pinter were actors; Franz Liszt and Wolfgang Mozart were virtuoso performers; Johann Sebastian Bach was an organist and choir master; Gustav Mahler was a conductor; Charles Dickens was a journalist. Many have been teachers of the art they practised. This group does not really come within the scope of my question. I am more interested in those who have practised a profession which is removed from the field of their artistic endeavour. Is there something about the law which is inimical to great art? The doctors have Anton Chekhov, Sir Arthur Conan Doyle, Mikhail Bulgakov, William Carlos Williams, John Keats and Somerset Maugham (the last two of whom did not practise). The insurers have Franz Kafka, Charles Ives and Wallace Stevens, though Kafka studied law and Wallace Stevens started as a lawyer. The civil servants have Anthony Trollope from the Post Office, C. P. Cavafy from the Ministry of Public Works in Alexandria, and Henri Rousseau, who was a tax collector in Paris (and was another one who studied law). The bankers have T.S. Eliot. The librarians have Philip Larkin. The chemists have Alexander Borodin. But whom do the lawyers have? It is difficult to find anyone in the front rank. It is galling that the doctors and even the insurers appear to beat us hands-down. Of course, there are people who studied law, but never practised it. Handel is another good example of this – his father forced him to study law. But where are the great artists who have been practising lawyers? The only one I can find in the front rank is the English novelist Henry Fielding, who became a barrister and then chief magistrate of London and founder of the Bow Street Runners. Lesser artists include the American novelist Louis Auchincloss, who died earlier this year: he was a wills and trusts partner in a New York law firm; and the 20th century poet Roy Fuller, who was an in-house solicitor for a building society. There is an American website which has an extremely long list of lawyer poets, but I must say that I did not recognise any of their names. The basic requirements of practising doctors and lawyers are not that different, albeit in different fields: observing human beings, making judgements about the best course of future action, dealing with casework. I would say that the intellectual content of legal work is higher than that of medical work. Yet the doctors have a long and proud line of great artists among their number. Is it that people with artistic temperaments do not like the law – witness the number of successful artists who studied law but then went on to another profession? Or does the law drive out art, and if so, why? I am perfectly aware that my knowledge is deficient, and I might be ignorant of wonderful, top-ranking artists who were also practising lawyers. Please tell me that Jane Austen was also a corporate partner at Clifford Chance, or that Frédéric Chopin was a high street practitioner in Warsaw before he moved to Paris. It would put me out of my misery.
The Legal Services Commission has announced that it will not appeal against the High Court’s judgment following the Law Society’s successful challenge to the family tender process. It said any appeal would only prolong uncertainty over the future of the family contracts, causing difficulties for clients and providers. The commission added that it is working closely with representative bodies and the Ministry of Justice on the future of the family and housing contract process. In particular, it is considering the future extension of the unified contract for family, and family and housing matters, which currently runs until midnight on 14 December 2010; harmonisation of family fees; and the allocation of new matter starts. LSC chair Bill Callaghan said: ‘Our priority must always be to ensure that family legal aid clients get the help and legal advice they need. We still have some work to do but we hope that this constructive engagement with the profession will help to provide certainty for clients and providers.’ Law Society president Linda Lee said: ‘We are pleased that the LSC has expressed an eagerness to engage with the Law Society and the solicitors’ profession on this matter, and we hope it will now recognise that the Society and its members’ insight and experience can make a valuable contribution to the reshaping of legal aid and legal service provision.’
Eight UK companies have formed an association, chaired by a solicitor, to provide outsourcing services for law firms across the country. The Solicitors Outsourcing Association said it aims to assist solicitors in reducing their overheads. The association, chaired by solicitor Martin Read, will provide an ‘umbrella’ service that includes: accounting and bookkeeping; cloud hosting and IT support; dictation services; file review and regulatory compliance audits; human resources and employment law services; legal cost experts; outsourced reception; and voice and data IT services. The association’s eight member companies are: Cloud Computing Centre (cloud hosting and on-premise IT support of Chessington, Surrey); Concert (voice and data IT services, Knutsford, Cheshire); d2u (outsourced dictation services, Bury, Greater Manchester); Deminos (human resources and employment law, London, Manchester, Bristol, Reading, Nottingham, Leeds and Gateshead); Distinctive Partnerships (file review and compliance audits, Rosset, Chester); MRN (legal costs, Manchester); Moneypenny (switchboard services, Wrexham); and The Cashroom LLP (accountancy and legal bookkeeping, Livingston, Scotland). Further potential members are currently undergoing quality checks.
Gordon Turner, Partners Law, London W1 There seems to be a consensus that our employment tribunals are unable to cope with the rise in claims. Much of the weight could be lifted simply by a tightened approach on compliance with directions. Employment lawyers are familiar with tribunal orders that contain references to all kinds of heavy sanctions, but in practice they are largely ignored, leaving great uncertainty about the merits until the last moment, by which time a case will have been set down for hearing. Settlements or withdrawals at such a late stage inevitably clog up the system, creating disproportionate legal costs, and dilute the chance for using disciplinary powers, including strike out. As cases should be listed within 26 weeks, the failure to enforce directions on a timely basis allows nuisance-type claims to continue with a cloak of respectability. Equally, respondents need to know quickly if they are facing a losing battle. Some clients are literally agog at the degree to which the case management process is treated with disdain by some (not all, of course) claimants. By holding back details – such as proof of lost earnings – employers are often delayed in assessing whether to consider even commercial settlements. At the more serious end of the scale, I have seen claimants lying on oath about their earning activities, while actively hiding the fact of their being in receipt of earnings. This is with a view to securing unjustified payments and yet is often met with no more than a shrug of the shoulders. One of the main bugbears of employers I represent is that, with such a liberal regime and the very high hurdle for any kind of costs penalty, there is no downside to this kind of misconduct. Tolerating this kind of thing gives the tribunals a bad name. If more of the speculative claims could be fairly managed out earlier in the game, there would be more room for the deserving litigants.
In these straitened times for legal aid lawyers, Obiter was impressed to hear of a fresh initiative from David Pickup, eponymous partner at Pickup & Scott. Industry at Pickup’s firm is not in doubt, of course, but he reflects in an email to Obiter that ‘it is difficult to explain to people that being busy is not the same as being profitable’, adding, ‘legal aid is unprofitable and is difficult to get – the benefits people usually only write once a year to check if the person is alive, and legal aid clients are not always the sort to file away documents neatly’. But Pickup may have hit on one of the more innovative multi-disciplinary practice models in pursuit of boosting his profits, utilising the plentiful Aylesbury sunshine. He is planning to grow tomatoes in the yard at the back of the office. ‘We have an old building with a small yard. ‘When we moved in we said we would sit there and eat our lunch in peace and quiet in the sun. We never have done, of course, as we never have had the time. Good intentions soon disappear. ‘But a few plants in growbags might look homely.’ While it is unclear whether the Solicitors Regulation Authority or the Food Standards Agency should be the primary regulator in future, the business plan looks sound – Pickup’s chosen tomato variety is called ‘Moneymaker’.
The Bar Standards Board has given the green light for the introduction of standard contractual terms that will enable barristers to sue solicitors for unpaid fees.The proposals, which are due to be accepted after amendment at the Board’s next meeting later this month, will replace the current non-contractual Terms of Work under which barristers operate.This will enable barristers to sue solicitors for non-payment of fees.The withdrawal of credit scheme, under which barristers are prohibited from accepting work from ‘blacklisted’ solicitors without payment in advance, and which the Law Society had threatened to challenge as being unlawful, will be abolished.It will be replaced by an advisory list of defaulting solicitors maintained by the Bar Council, listing those against whom a court judgment had been made in respect of unpaid fees.The BSB dropped its proposal that the new terms be applied in default of any other agreement being in place.The remaining point for the Board to determine before it approves the final proposal is whether the cab rank rule should only apply to work offered to barristers on the standard terms contained within the new contractual terms.The Bar Council and the Law Society had tried to negotiate the terms of a new contract for the best part of decade, but the two professions were not able to agree on the standard terms and the Law Society has ceased to be involved in the negotiations.Charles Hollander QC, chair of the BSB’s standards committee, said the current rules are ‘completely obsolete’ and ‘have to go’, particularly in light of the fact that the solicitors’ code of conduct removed the professional obligation to pay barristers’ fees in 2007.Last week, the BSB said that it will allow barristers to conduct litigation.
The Legal Services Commission’s telephone helpline is taking emergency calls only in an effort to reduce a backlog of work. Emergency calls are those requiring action within 48 hours or where the information being sought is not available elsewhere. In July, the commission cut the service to four hours a day. Now a website notice says non-emergency contacts should be made by email or post. Urgent emails will be replied to within three days and correspondence within two weeks.