Wednesday, March 25, 2009

Are Lawyers Ethical or Can They Be?

There was a do tonight at the Law Society for a couple of friends of mine, Kim Economides and Justine Rogers, who were presenting report "Preparatory Ethics Training for Future Solicitors". It's a well-reasoned plea for proper intensive and extensive ethics training and consciousness raising.

In the US it took the Watergate affair to bring ethics classes into the law school curriculum. We've had plenty of crooked lawyers but still we don't teach legal ethics except in a raggedy way to vocational students. By which time it's too late.

The report is timely and necessary but let's see how the profession takes to it. But don't hold....

There were a number of the legal great and good there including judges. I had an interesting chat with one high court judge who told me the following story.

Apparently, a Muslim barrister came out of court after a case and complained vociferously about the jury being anti-Islam, etc. My judge thought this was deplorable and a dreadful lapse in professional standards by the barrister. He argued he should be chastised for his behaviour.

I was astonished at his bias and wanting to suppress free speech. The barrister ought to be celebrated for speaking out. He was stimulating debate.

My judge believed the jury system was being impugned and how would public perception suffer?

Two errors there, judge. One the public perception is effectively zero. Forget that. It's the public that would bring back hanging. The public hasn't got a clue about law and the legal system except for when they get a parking ticket.

Second, is the legal system so weak it can't argue it's place with a wacky barrister. Is it really prepared to quash free speech just because it considers some dubious ethical imperative to have been traduced?

And this by the way from a judge who is described as liberal or even occasionally left wing. It's all context really.

Monday, March 23, 2009

Socio-Legal Studies Association Conference 2009

Between April 7 and 9 the Socio-Legal Studies Association will hold its annual conference in Leicester at De Montfort University. There is a full programme.

My colleague Andy Boon and I have organized the Lawyers and Legal Profession stream. We have two sessions which should prove interesting. I will be chairing and acting as discussant for both sessions.

The speakers and papers are

Session 1:
Bryan Clark (Strathclyde, Scotland), "The Lawyer Mediator in Scotland"

Edward Cohen (Westminster College, Pennsylvania, US), "Connecting (and Disconnecting?) Law and Power: Legal Expertise and Legal Pluralism in the Global Political Economy"

Richard Earle (Westminster, London, UK), "Encouraging Mediation in the EC"

Session 2:
Justine Rogers (Oxford, UK), "The Price of Pupillage: The Nature and Limits of Ritual Ordeal at the Bar"

David Barnhizer (Cleveland Marshall, Ohio & Westminster, London, UK), "Children of a Lesser God: Lawyers, Economics and the Systemic Corruption of the Legal Profession"

Andy Boon (Westminster, London, UK), "Making Legal Aid Solicitors? The Training Contract Grants Scheme"

Friday, March 20, 2009

Phew....I'm so Relieved...Post Gig

My standup gig went completely differently from what I was expecting. We had a full house that was buzzing. And thanks to Barry for doing such a great MC job tonight. He really warmed up the house, especially with his version of "My Bonnie Lies Over the Ocean..." which involved the audience having to raise and lower themselves according to the "B" in the line. I know, it sounds weird but it worked.

I was third on the bill and was settling into a riff about Stephen Hawking, Hamas, and black holes when the mic and speakers started talking to me! It was very spooky. So I had to improvise about aliens speaking to me through black holes. Trouble was the aliens kept disagreeing with everything I was saying. Still people laughed. And I made it to the end.

Afterwards a number of people were convinced that I had made this happen as part of the act. I wish it had been then I would have known what the hell I was doing. The feedback kept cropping up in ways I didn't expect. It makes you think on your feet fast. And actually it was fun in a perverse way.

I hope to have a video of the set soon and I will put it up for all to see. Ouch!

Thursday, March 19, 2009

The Truth about the George

When I do my comedy gig at the George tomorrow, it will represent a flight back in time for me. I used to be an habitue of the George during my first ever research project.

The research was on barristers' clerks, a strange breed that haunts the Temple and the law courts. I've written a book about them.

Back before Roll on Friday, Friday night was the escape hatch into another dimension. When you went through this air lock, you breathed the hoppy fumes of the pub. It was your salvation for the stress and strain of the past week. It was where you could meet and gossip while sipping away.

When I started my research it involved hanging out with clerks. And as Ned Polsky says you go where they go (but he was referring to hustlers). Friday night it was off to the George. At this stage in my career and life, I drank maybe a pint of beer or possibly two during an evening. Pathetic, I know.

The system in the George, without being grandiose about it, was for the clerk entering the pub to buy a round for those present. For some strange reason, at that time I liked Guinness. So every time a round was bought I had another pint of Guinness lined up in front of me.

If you've ever drunk Guinness you will understand why my eyes had that scared, rabbity look about them as I gazed on the endless line of black pints stretched out on the counter. "Go on, John, drink up!"

There were eight pints. I tried: I really did. I have no recollection of how many of those pints I actually downed. It couldn't have been all eight. That would have been impossible.

Apparently as I took the last tube home that night, I tried, feebly, to write up field notes about my time in the pub. Later, much later, I could make out the occasional word, but what did it mean?

I spent Saturday quietly, very quietly in a darkened room waiting for it to all go away. Of course I followed Ned Polsky's strictures and so spent many a Saturday in a darkened room.

I'm back at the George tomorrow. Hope to see you there!

Tuesday, March 17, 2009

New Comedy Gig

Unlike the Comedian from Watchmen, I don't want to die! So I am doing a new comedy gig this Thursday (19 March) in the George, opposite the Royal Courts of Justice in the Strand. Doors open at 7pm and show starts at 7.30pm.

There are eight of us performing, including an Italian called Hyacinth, two pregnant women, and three people called John.

My act is based on building houses and black holes.


The George at 213 Strand, London , WC2R 1AP

(Streetmap link)

Doors 7pm (show starts 7.30pm)

Opposite Royal Courts of Justice

Tubes: Temple / Chancery Lane / Holborn


Monday, March 16, 2009

GeekLawyer's Blawg Review and Twitter

GeekLawyer has written the latest Blawg Review #203, which is a weekly roundup of what is being mentioned on the law blogs. GeekLawyer is an intellectual property lawyer so there is an emphasis on IP. There is also an enterprising use of out of copyright images to illustrate a bacchanalian theme to the review. You are warned.

GeekLawyer ruminates on Twitter. This social networking tool has the capacity to obsess its users without knowing why. But if you can pack a message into 140 characters, then it's for you. GeekLawyer can be followed at @geeklawyer.

Twitter is getting considerable adoption among the legal fraternities and sororities. For example, Dan Harris of China Law Blog now tweets; Charon QC of Insite Law Magazine is also on Twitter. I admit to tweeting for around a month now (@johnaflood) and love it. But why? Well, in part it's instant and it's one to many. Whereas IM is one to one, you know with Twitter it is public. And there are ways of targeting questions to audiences, for example. Whereas Facebook desperately tries to sell itself as a total lifestyle package, Twitter lets you get on with the business in hand--communication. You don't have to worry about how many "friends" you have.

The problem for most early Twitter users is: What is this for? Can it be monetized? What's its value? And so on. The best way to treat it is to use it and see what happens. Search out others and link to them and before you know it, you are engaged in a series of conversations both serious and stupid.

There's a huge array of Twitter tools now. (If you can't answer the why part, why on earth are people out there making these things?) For tweeting you can just go to and tweet from within your browser, but a separate application like the free TweetDeck is better. With other tools you can combine twittering with blogging and the like. Richard Herring likes to use his iPhone to tweet on his tour. You can even now consolidate your social networking activities in one place with tools like

News organizations are tweeting--BBC and CNN as well as less formal commentators like Guido Fawkes. Both Stephen Fry and Jonathan Ross have large twitter followings.

Law schools are now tweeting in addition to running their own blogs, eg. Harvard and Chicago. I'm not aware of any UK law schools using these yet. Mind you most UK law schools think having a website is cool! They may yet migrate into the 21st century.

Friday, March 13, 2009

Bernie Madoff Pleads Guilty

(thanks to New Yorker)

Bernie Madoff pleaded guilty to his $50 billion Ponzi scheme, the biggest fraud ever, and has been jailed awaiting sentence according to the New York Times.

And in case you missed it, Bernie expressed remorse. Wasn't that considerate? Maybe they will reduce his sentence from 150 to 120 years for copping the plea.

Added 13 March 2009 from the New York Law Journal:

List of Charges Against Madoff

Count 1: Securities fraud. Maximum penalty: 20 years in prison; fine of the greatest of $5 million or twice the gross gain or loss from the offense; restitution.

Count 2: Investment adviser fraud. Maximum penalty: Five years in prison, fine and restitution.

Count 3: Mail fraud. Maximum penalty: 20 years in prison, fine and restitution.

Count 4: Wire fraud. Maximum penalty: 20 years in prison, fine and restitution.

Count 5: International money laundering, related to transfer of funds between New York-based brokerage operation and London trading desk. Maximum penalty: 20 years in prison, fine and restitution.

Count 6: International money laundering. Maximum penalty: 20 years in prison, fine and restitution.

Count 7: Money laundering. Maximum penalty: 10 years in prison, fine and restitution.

Count 8: False statements. Maximum penalty: Five years in prison, fine and restitution.

Count 9: Perjury. Maximum penalty: Five years in prison, fine and restitution.

Count 10: Making a false filing with the Securities and Exchange Commission. Maximum Penalty: 20 years in prison, fine and restitution.

Count 11: Theft from an employee benefit plan, for failing to invest pension fund assets on behalf of about 35 labor union pension plans. Maximum penalty: Five years in prison, fine and restitution.
Source: The Associated Press



Friday, March 06, 2009

Podcast on Rise in Fees for Legal Practice Course

Charon QC interviewed me today. Our conversation is available in podcast from Charon QC.

Lawcast 113: Professor John Flood on the rise in fees for the Legal Practice Course

Today I am talking to Professor John Flood. We examine the rising cost of legal education in the light of the recent decision by three London Law Schools, BPP, The College of Law and Kaplan, to put their fees for the legal practice course up by nearly ten per cent at a time when the profession and the country generally is experiencing the most severe recession since the 1930s.

Tuesday, March 03, 2009

Law & Order UK

I like watching Law & Order and lots of those other shows. OK, I need help but I've been a fan of policiers for a long time. Law & Order is good because it shows the entire process from crime to conviction(?). What really makes the program fly is the grittiness of New York City: even at its worst it has a sheen. And I'm a fan of Sam Waterson as the D.A.

So when the Brits decide to anglicize Law & Order I was worried. So much so that I didn't watch the first couple of episodes. Law & Order UK has done well with over 6 million viewers to start.

I've watched my first episode. They use the same music. It's a pity as it sounds good in NYC but London? London doesn't have that sheen I mentioned a while ago. It's very drab in comparison. And that mixture of estuary and mockney just doesn't sound authentic. Why not?

The basic problem lies is suspending disbelief that the Crown Prosecution Service (CPS) is the functional equivalent of the American District Attorneys' offices. For years we've been exposed to the DA playing hardball, negotiating pleas, and offering full immunity. Some of them face election. And in the case of Bush's US District Attorneys could be fired if not on board ideologically.

We know the only reason the CPS is there is because for years the police were so corrupt, you were never sure if the evidence was radioactive or not. So far the CPS hasn't inspired a lot of belief in redemption.

The episode I watched involved the murder of a 13 year old boy whose mother was in rehab in Holloway Women's Prison. She's shown smiling angelically while she paints watercolors before receiving the news of her son's demise. Don't grind your teeth too much.

Our little scally is murdered by Euston Station which is the neutral zone for the local gangs: "Well, you gotta travel, aincha?" So it ain't them. After some soul searching on the part of the detective sergeant, who was himself abused as a child--"I've been where that kid's been..." (choke now)--the kid's stepfather is eliminated and it's down to the kids friends.

The fingered scally displays all the characteristics of a budding psychopath. The killer had kicked the kid so much that all his internal organs were damaged(!). The prosecution even brings in a mobile phone video of the scally visciously kicking another kid at school.

As I watched I began to tweet my reactions to it. Here's how it goes (with extensions):
21.44: Law & Order UK is now more interesting at CPS stage as defence is bringing in Warrior Gene as defence against murder. He had to do it because it's in his genes!
21.45: This is the fascinating interface of science and law when law has to interpret science and render it legal (a la Luhmann). Never a happy moment.
21.51: (Ad break) Doctor witness is asked about research on Warrior Gene. (Swedish family all shared gene that made them arsonists and rapists--natch!) Defence counsel says, just because the sample size is small, doesn't mean the theory is wrong. Witness clearly dumbfounded. Witness could have countered with the interaction of method and theory, but....
21.53: They've got the kid's mother on the stand. She's pregnant again. Oh god help us. Now mother is disclaiming all responsibility cos 'is genes is responsible, "'E's a monster!" she shouts.
Are you going to get rid of your unborn child then? asks prosecution. "No, I'll bring 'im up proper," she replies. Camera reveal to stunned looks in courtroom and kid in dock sobbing.
21.55: Now the kid himself believes he's a monster. And he wants to go to prison: "I killed Danny. I'm a monster." Now, 1-2-3-who's a monster?
21.57: Kid changes plea to guilty. They're now trying to work up sympathy for the kid. Defence counsel admits to prosecutor (nascent love/lust angle here, I'm sure) that she never believed in the Warrior Gene--it was just to get a retrial--and she certainly didn't expect the kid to swallow it as well!
Yes, I was quite gripped for a while. I loved it when the director of the CPS complained about receiving a constant stream of texts from the Director of Public Prosecutions about the irresponsible, precedent-busting justification of the Warrior Gene. "That's why I'm putting my best prosecutor on the case..."

What does said prosecutor do? He demands that the defence drop this for "the good of the English legal system!" Way to go, counsel. Does the defence see the immediate utility of this appeal and drop it? Like hell: she goes in, "I'm going to get my client off!" And, of course, she didn't and cosmic order was restored. But I think she's going to get off with the prosecutor...

Complaining to the NHS

Now this is a tricky one.

We all love the NHS and where would we be without it. I remember defending it to the doctor at Yale who was decrying the evils of socialized medicine. Read: you don't make that much money out of it.

But being such a behemoth of a bureaucracy, it can fail and fail and fail...It could be the wrong type of surgeon operating on children's hearts or it might be letting someone acquire an infection while in hospital. Or it might be screwing up your appointments so you haven't a clue whether you are going to be examined this side of the 21st century or not.

My wrist has a touch of carpal tunnel syndrome. Why not? I'm an academic sitting in front of a computer everyday with a mouse permanently attached to my right hand.

I was to have ultrasound on February 26 when I received a letter from the imaging department at the hospital informing me:

Following your recent request to reschedule your appointment please find attached your new appointment date and time (none attached by the way).

I regret to inform you that the above appointment has been rescheduled. Please find attached your new appointment time and date (nope)

After discussions with our clinical team we've decided you don't need the tests and your appointment has been cancelled.

After discussions with our clinical team we've decided you need different tests.
I called being a little perplexed at what might happen to me to discover that they were interviewing for a job that day and had cancelled all the appointments. I was in luck: I could have one on August 3, only six months later. They seemed puzzled when I demurred. I wrote a letter of complaint:

Dear Ms Osborn

I am writing to remark somewhat critically on the performance of the imaging department in relation to my case.

On 12 February 2009 I received a letter regarding my appointment with your department. This letter is intelligible to a degree, but in a manner that causes one to scratch one’s head and think what kind of test am I being set here? And in case you wonder how it could be so I enclose a copy for you. It’s evidently a template letter, only this one, I imagine, in an attempt to be inclusive and helpful, includes every possibility.

One of them is bound to be right, I suppose. And one could ask does it matter which one? Not to the imaging department. I notice that you have thoughtfully placed a handwritten sticker on it with your name and the words, so carefully and attentively phrased for the bemused patient: “any queries contact…” How did you guess that there might be some? My feeling is that forward thinking in the imaging department is on the rise.

On pondering the letter, I guessed my best course of action—so many to choose from—would be to call the department. I was told it was a normal letter and that I shouldn’t bother with it. One wonders why you sent it. Still, the upshot of the letter which I wasn’t, even with my forensic powers of detection, able to detect was that my appointment had been cancelled. Resolution at last.

The reason was interesting as it seems it was because interviews were being held that day for a new member of the department and it was a case of tough luck patients. One can accept that with a resolute smile. I casually asked if the appointment was to be rescheduled. This question appeared to cause a flurry of activity among the booking clerks who felt able only to respond by having to call me back.

I waited with eager anticipation. The call came and the pronouncement was that I had been granted a new audience with the consultant on August 3. I admired the insouciance with which the new appointment was delivered. My feelings were mixed: was I to be happy? Was I to be disappointed? I found myself veering towards the latter. Inescapably towards the latter. Ineluctably towards the latter.

When I expressed my reservations at the long interval between the appointment I thought I had and the one I was about to have bestowed on me, I was met with the statement that’s it. My disappointment deepened, my despair was becoming evident to the imaging department booking section. My voice may have even cracked a little. I think they took sympathy on me. They passed me to a manager.

Imogen, for she was the manager, asked me all sorts of questions about what was happening and she was prescient enough to discover that I had another appointment in a different department related to the same condition and that I would be taking the results of both tests back to the doctor in the wrist department for his interpretation. This other test is set for March 2. So I believe it was abundantly clear to both of us that leaving your department's test to August 3, would not really cut the mustard. Imogen promised to investigate and call me back so that the imaging department could in effect make restitution for its error.

I have waited and waited but to no avail. Imogen never called. Anticipation gave way to despair again and I found myself languishing in the slough of despond. The imaging department had abandoned me in my hour of need.

Well, today is the day you held the interviews and I hope they went well. I’m sure you have appointed a corker of a new member. I might be lucky enough to meet him or her. But then I might not.

As you have no doubt guessed by now, I still don’t have an appointment. I imagine an airline cancelling a flight and saying to the passengers “Oh don’t worry, we’ll get you another one in 6 months time.” Their joy of course would be unalloyed. Maybe not.

So, Ms Osborn, I’m not a happy bunny at what I’ve encountered with the imaging department. But I believe there is a way you can raise my spirits again. Why not give me an appointment as soon as you can and as close to March 2 (my other test), so that I can move ahead in lightness and joy.

I await your response…..

Yours truly,

I'm still waiting.