Why does this keep happening?

Why does this keep happening?

We read today about yet another fee earner whose career in in tatters because they have tried to cover up mistakes –

https://www.litigationfutures.com/news/pi-fee-earner-who-faked-court-documents-banned-from-profession

In this case there were three cases where deadlines had been missed by a few days. Rather than admit the mistake the non-qualified case handler dishonestly back dated documents to mislead the court and the other side. In each of these cases the problem was probably capable of resolution with a bit of experienced help. If he had admitted the first error the others might well have been avoided.

Last year a young solicitor was struck off after backdating 23 letters and misleading a client about the progress of a claim –

https://www.lawgazette.co.uk/news/junior-solicitor-backdated-23-letters-to-give-herself-breathing-space/5066611.article

And then there was the experienced solicitor wo actually gave a false letter to an SRA investigator –

https://www.legalfutures.co.uk/latest-news/solicitor-who-fabricated-letter-in-panic-avoids-strike-off

One common factor is that the attempts to cover up have been discovered without great difficulty. They have usually been followed by an eventual admission of wrongdoing.

I cannot accept that we have suddenly become a profession of the dishonest. The lawyers in these cases are not cynical fraudsters. They are almost always acting at a time of stress and panic. They are almost always acting alone as a situation rolls out of control. This does not justify dishonesty. But it does raise a serious question for all managers of law firms. Why do lawyers think it is better to risk their career than admit a mistake? What is the ethos in firms that creates such a sense of fear? What support are we giving to our staff? Are we reminding staff that it is not usually the end of the world if we miss a deadline? But it might be the end of a career if they try to lie their way out of it?

In March 2018 I set out my 5 point plan to help lawyers to sleep at night –

1.   In the famous words of Michael Jackson - You are not alone. Find someone that you can talk to – it is so easy to be isolated in your little cell. Surrounded by files, emails, deadlines, telephone messages, meetings. To get into that mindset that says ‘I have no time to speak to anyone’. You have. And if you haven’t then make it. 20 mins speaking to someone will get you hours of payback in avoiding sleepless nights. It is a truth universally acknowledged that a problem is never anywhere near as bad when you talk to someone about it. Especially someone who has been there, which if we are honest is all of us! Speak to someone. Right away. Turn your computer off and go and do it now.

2.   Be generous in giving files away. That file that you are scared to look at. The one that has been festering by the side of your desk so long that even the spiders won’t go near it. Give it to someone. It won’t go away on its own. If you can’t look at it, find someone who can. Many solicitors have a file swapping arrangement. I’ll give you mine; you give me yours. Don’t hog matters to protect your bills. You can be far more productive by liberating yourself. Don’t be scared of being criticised. You won’t be. You are more likely to be told – ‘Leave it with me and while you’re there can you look at this one of mine.’ 

3.    See the wood for the trees. It is never as bad as you think it is at 3.00am. The world will not end. I’ve been a lawyer since 1^st April 1980. I have had more 3.00am moments than I like to admit – especially in the early days. Guess what? I’m still here. I’m still alive. I have got to an age where I can say. ‘Phew oblivion never happened.’ It was never going to and never will.

4.   If you need to – confess. If you think the worst has happened – you've missed a deadline and can’t think of a way out. Then tell someone. Today’s is just the next in line of those nightmare cases where lawyers have tried to cover up and been struck off because they were scared to own up. No one was ever struck off for admitting a mistake. Partners, supervisors, insurers will never bite your head off for coming clean. And if they do they shouldn’t be in the job. It also means that it is no longer just your problem. Get it out there and do it as soon as possible. The consequences are less scary than you think and much less stressful than waking up at night or even jeopardising your hard earned career.

5.     

      Get a life. Don’t get sucked into that bubble where your legal world becomes all consuming. Being a lawyer is what you do. It is not who you are. See your work as part of your life but not everything. Develop interests and friends outside the pressure cooker. I support Everton. That can very stressful and cause sleepless nights. But it is something different. I love music and photography. I also waste far too much time on social media!

http://thestevecornforthblog.blogspot.com/2018/03/another-career-lost-seeing-wood-for.html

Legal Aid, Red Shirts and why I would rather walk alone!!

Back in 1999, I wrote the Letter of the Week in the New Statesman magazine. This was what you did in the days before Twitter! I was responding to the Labour Lord Chancellor, Lord Irvine’s proposed cuts to Legal Aid. The attacks on legal aid lawyers were relentless.

That was the start of the falling dominos that has led us to the legal aid waste land that we have today. Who would have thought back then, that we would end up with some areas having little or no legal aid lawyers in certain key areas of work such as housing?

https://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/end-legal-aid-deserts/

Lord Falconer, a close friend and ally of Tony Blair was a key player at that time. He has recently expressed regret for creating the belief that legal aid lawyers ‘had their noses in the trough’.

https://www.lawgazette.co.uk/news/falconer-my-regret-over-labours-effort-to-curb-legal-aid-budget/5070458.article

This is a welcome change of heart. But it is a little bit like Henry VIII saying he wished he had tried conciliation with Anne Boleyn!

At first many of us here hostile to the idea of lawyers working for nothing or supporting legal charities. What we really needed was a properly funded legal aid scheme. But we faced a dilemma. How could we leave people who were threated with losing their homes or livelihoods, to fend for themselves? Lawyers had to support agencies providing free advice whilst also campaigning for legal aid.

All of which leads me to the Liverpool Legal Walk on 11^th June. This will the 8^th walk when a couple of hundred lawyers and others who work in the legal sector will take to the streets of Liverpool. We do this to make a statement about access to justice and to raise funds for providers of free advice.

Desperate times call for desperate measures. This is why I have pledged to do the whole 5k walk in a Liverpool FC shirt just days after their much-publicised Champions League win. As a lifelong Everton fan, this is a big deal and something that I swore that I would never do. But I recklessly said that if my sponsorship went over £500 I would face the ultimate humiliation in the name of access to justice. We crossed that line today and I am now doomed! But it will be worth it if one person gets access to legal help that would otherwise be out of their reach.

You can still donate to the cause at –

https://uk.virginmoneygiving.com/SteveCornforth2019

Concerning Boris and more media hysteria

There has been a lot of poorly informed comment from politicians and the media in relation to the decision to issue a summons against Boris Johnson following his famous £350m statements during the EU Referendum Campaign. The most popular criticism is that the court is not the right place for discussion of political issues. Some of the comments have bordered on the hysterical.

Bob Seely MP tweeted

‘This stupid, muddle-headed judge has made a fool of herself and the law.’

Journalist Andrew Pierce tweeting as @toryboypierce weighed in with –

‘Dopey judge has referred @BorisJohnson to court has clearly never heard of free speech. Judges yetagain overstepping the mark’

And Tory leadership hopeful James Cleverley said –

‘The place to argue political points is not in a court room. Politicians must be able to put their points across without the threat of legal action.’

I think most people would agree with that comment if it was relevant in this case.

So I think we need to look at the issue in a bit more detail and with a bit of common sense. For those who are interested the full judgment of District Judge Colman is available at –

https://www.judiciary.uk/wp-content/uploads/2019/05/Ball-v-Johnson-FV-290519.pdf

This was a preliminary hearing in a case where a member of the public wishes to bring a private prosecution against Boris Johnson. The judge was required to decide if this was a proper case to allow a summons to be issued. She was not there to make any decision on guilt or innocence. She was not there to make any findings either against him or for him. She was deciding whether the case was one that should be allowed to proceed. She had to be satisfied that the essential ingredients of an offence are prima facie present. There are 6 questions to be addressed which go back to the 1970s -

1.       Is the alleged offence one that is known to the law? The answer is clearly yes. She also had to decide if the essential ingredients of the offence were arguably present. At different times he was Mayor of London and an MP, both clearly public offices. She was not there to decide whether he had done anything wrong, only that there was an issue to be decided,

2.       Is the allegation out of time? No.

3.       Does the court have jurisdiction? Yes.

4.       Does the complainant have authority to proceed?  Yes.

5.     Is the application vexatious? This is important. If the prosecution was simply a stunt to try and avoid Brexit then the application could have been blocked at this point. The judge heard long and detailed representations from experienced QCs on both sides. Her finding was that there was no ‘political purpose’ behind the proceedings. The case relates entirely to Boris Johnson’s conduct in relation to the £350m claims. It does not seek to overturn the referendum. The judge specifically found that the suggestion that there was a political purpose was ‘no longer pertinent.’

6.      The judge also must consider any other relevant circumstances. They were all considered.

The judge therefore was only addressing these limited issues. She had to decide whether they were satisfied and whether Mr Ball’s private prosecution should be allowed to go to the next step, which is the issuing of a summons requiring Boris to attend court. She did this in a detailed written judgment.

This does not make her ‘stupid’ ‘muddle headed’ or ‘dopey’.

It is nothing to do with free speech. There is nothing to stop his lawyers arguing this at the trial.

She is simply doing her job that she must be able to do without interference from politicians or journalists some of whom have vested interest.

The trail itself will be intgeresting...

Shamina Begum, legal aid and the meaning of justice

Let’s get one thing clear. People who have the benefit of legal aid are not given a hand-out. They are not ‘given’ anything. The purpose of legal aid is, or was, to ensure that each party to a dispute have equal access to legal representation. Legal Aid, as we know it, was introduced in 1949 by the post war Labour government. Its stated purpose at the time was –

“to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services”.

https://www.theguardian.com/law/2018/dec/26/legal-aid-how-has-it-changed-in-70-years

It is fair to say that this principle has been eroded over the years. Eligibility for Legal aid has been virtually wiped out for many citizens since 2013 under the Conservative and Liberal Democrat Coalition. But the principle remains. For example, it was recently reported that in 2017 the Government had spent £4.2m on legal representation at inquests. At the same time just £92k was paid to families of victims by way of legal aid. Most people would agree that this is iniquitous.

https://www.lawgazette.co.uk/news-focus/news-focus-inquests-show-that-not-all-are-equal-in-death-/5069974.article

The state provides legal aid so that all sides can have equal access to justice regardless of their wealth. What is the point of having legal rights if only the rich can access them?

And so to 19 year old Shamina Begum. It has been national news today,that she has been granted legal aid to contest the removal of her citizenship. It is very predictable that the Daily Mail has reported this as if it is some sort of hand-out. The rest of the media seems to have followed suit. Foreign Secretary, Jeremy Hunt, is reported to be 'uncomfortable' with the decision to give her legal aid. That is the thing about justice. It isn't always comfortable. Comfort is not what it is about. 

This is not about her popularity. Access to Justice is not limited to those of whom we approve. It is possible to despise her and all that she stands for, and at the same time, acknowledge that there are important issues here that should be addressed by a court. This is an issue which should be a concern for us all. When, and under what circumstances, can out government remove person's citizenship? This is a matter for judges, not the media, to decide.  

Her citizenship has been removed by the state. The state is required to show that it has acted lawfully. That can only be achieved if Ms Begum and the state are equally represented. This is why we have scales of justice.

The test is this –

Does she require legal assistance? She does.

Can she afford it? Probably not but that is a statutory test, and a strict one at that.

Is the necessary work in scope? It is.

There is no requirement that a person be popular or to be considered deserving of help by the tabloid press. Justice is not a bag of money, it is a right.

Shocking Landlords, bad tenancies and the need for reform!

Did anyone else watch the jaw dropping documentary on BBC about the millionaire landlord Fergus Wilson who is carrying out mass evictions of his tenants so that he can retire? He has previously hit the headlines for refusing to accept tenants on benefits, single parents and anyone on zero hours contracts. He became unstuck in 2017 when a court granted an injunction against his refusal to let to Asian tenants – because of the curry smell –

https://www.bbc.co.uk/news/uk-england-kent-41915889

Throughout this documentary he showed nothing but contempt for his tenants and proudly declared his mantra – 

‘Basically, we have got two types of tenants – those who agree with me and ex-tenants.’

He reminded me a bit of Bradley Hardaker the wealthy mill owner in the comedy, Brass who complained that his workers enjoyed the beautiful view of his mansion while he had to look done on their miserable hovels!

But what he did do, intentionally or otherwise, was make out a strong case for the reform of tenants’ security. He openly declared – 

‘I can do what I like, you don’t want me to lie about it do you?’

https://www.bbc.co.uk/news/uk-england-kent-47612106?ns_source=twitter&ns_linkname=english_regions&ns_mchannel=social&ns_campaign=bbc_england#

And he has a point. Most private tenants have assured shorthold tenancies. These tenancies began back in the late 1980s. I remember speaking at an event in 1989 and warning of the damage that would be done to blameless tenants! I was an angry young lawyer then. I'm an angry old lawyer now. Nothing has changed! They are now covered by the Housing Act 1996. They are fixed term tenancies normally of 6 – 12 months. At the end of the term the tenant can agree a new tenancy, but the rent will almost certainly go up, or they can stay put. In the latter case the rent stays the same, but they have no real security at all. So long as the landlord serves proper notice – how many references were there in the BBC documentary to s21 (Housing Act 1988)?? 

So Mr Ferguson spoke the truth. After the end of the initial term the landlord can pretty well do what he/she likes.

This has even seen the growing usage of the phrase ‘revenge eviction’ for those who complain of disrepair. One young couple in the documentary agreed in principle to a rent increase but asked about repairs. They were promptly served with an eviction notice. The forthcoming Homes (Fitness for Human Habitation) Act is great news for tenants but could be a double edged sword for some. 

Surely the time has now come for a root and branch reform of these outdated and unfair tenancies. They were bad enough back in the days when people could still afford to raise mortgage deposits, when tenants knew that their benefits would cover rent and when there was no housing crisis. In the current climate they must now be put to rest for good.

Molly Russell, Instagram and Legal Aid

I cannot remember when I last posted twice in one day. But the decision of the Legal Agency to refuse Legal Aid to the family of Molly Russell for representation at the inquest into her death is crying out for comment.

Molly died in November 2017. She took her own life. Her family discovered Instagram posts about depression and suicide. Her father has said that he has no doubt that Instagram helped kill his daughter –

https://www.bbc.co.uk/news/av/uk-46966009/instagram-helped-kill-my-daughter

This has led to a huge public debate about the influence of social media and the responsibility of these platforms for the safety of their young users. Instagram has pledged to ‘blur’ images of self-harm on its site which now boasts over a billion users worldwide.

https://www.theguardian.com/technology/2019/feb/07/instagram-bans-graphic-self-harm-images-after-molly-russells-death

This is a major issue which affects us all – both at home and across the world. Molly’s inquest is an opportunity for many questions to be answered. Questions that concern families everywhere.

Back to the Legal Aid Agency. Families are not entitled to legal aid to be represented at inquests. But funding is available if there are exceptional circumstances. There are guidelines published by the Lord Chancellor –

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/715441/legal-aid-chancellor-inquests.pdf

Paragraph 28 says –

'28. In the context of an inquest, the most likely wider public benefits are the identification of dangerous practices, systematic failings or other findings that identify significant risks to the life, health or safety of other persons.'

The whole argument here is whether there are dangerous practices which present significant risks to the lives of young people in the context of a particular child.

This debate had made national news. The refusal of legal aid has made national news. If ever a case was ‘exceptional’, this is it. The public is entitled to a full inquiry into the role of social media in Molly’s death, so that the lives of others can be protected. There is little doubt that the social media industry will have access to the best, and most expensive, legal representation.

This refusal of legal aid beggars belief. It makes you wonder if any case can satisfy the guidelines.

POSTSCRIPT

Following the predictable outcry the Legal Aid Agency has now reversed this decision!!

The new SRA Code - a lingering concern!

According to a report posted in today’s Legal Futures, Solicitors in smaller firms are more concerned about the imminent, new SRA Code of Practice than they are about Brexit.  Mind you, boredom might have a role to play there! It seems that a major concern is staff retention in a relaxed legal services market –

https://www.legalfutures.co.uk/latest-news/solicitors-worried-about-impact-of-new-sra-rulebook

This brings me to an issue that, for me, has a major concern since the changes were first proposed. 

Under the present regulations a Solicitor can only provide legal services to the public via an organisation regulated by the SRA or other approved regulator. Some legal work is ‘reserved’ and some is ‘unreserved’. Reserved work can only be carried out by an authorised person such as a Solicitor. This is a surprisingly limited category of work and includes the power to conduct litigation, to appear before certain courts and the drawing up of certain documents. Almost all other legal work is unreserved which means it can be provided by anybody. You don’t have to be a Solicitor to set up a business offering advice in say, employment law or welfare benefits. But if you are a solicitor you must still operate through a regulated body – such as a solicitors’ firm. The reason for this is that there are standards and protections that go with the solicitor brand. For example, all solicitors’ firms must carry professional indemnity insurance. They also must contribute to a compensation fund.

If a client instructs a solicitor, they know that if anything goes wrong there are levels in protection in place. If solicitor is negligent then the insurers must meet any claim. If the solicitor is guilty of misconduct, including failing to take out insurance, then the compensation fund is a safety net. This has been a foundation stone of our legal services.

The new code promises to change all of this.

Here is a summary that was published by the SRA last year –

https://www.sra.org.uk/sra/news/press/handbook-reforms-june-2018.page

There will be two separate sets of professional rules. One will cover individual solicitors and one will cover regulated firms. The proposal is that solicitors will be allowed to provide ‘unreserved’ services through unregulated organisations. So someone can set up an HR Consultancy and will be able to employ solicitors to offer legal advice to the public even though that consultancy is not regulated. The thinking behind the plans is that solicitors are a commercial disadvantage. The cost of regulation means that some organisations can provide the same advice at much lower cost. Insurance is one of the biggest overheads in most forms.

Why is this a concern? Firstly it threatens to devalue the solicitor brand. If someone can see a solicitor in an unregulated firm with no insurance or other regulatory protection then the security of knowing that there are guaranteed protections will disappear. This is not something that can be defined purely by cost. 

I can also see dangers, particularly for young lawyers. The SRA say that all solicitors will be subject to the rules that will apply to all solicitors regardless of where they work. But this will put huge pressure on those individuals. If an inexperienced solicitor is working for an unregulated organisation, they can find themselves conflicted between the demands of the business and their personal professional rules. Such solicitor might well have a strong claim for unfair dismissal but someone with a mortgage and a young family can still find themselves in a very vulnerable position.

We should all encourage moves to bring legal services into the 21st century. The more bodies providing access to legal advice the better. I am also all in favour of easing the burden of regulation. That would give compliance officers fewer sleepless nights! But there are also minimum standards of service and protections that must hand in hand with instructing a solicitor. Without this we will have a two-tier profession offering services to a confused public.

I do foresee major issues arising when the rules come into force later this year.