Tuesday, May 26, 2009

When Lawyers Have Sex with Their Clients

The financial crisis is supposed to be prompting some ethical reflection among those in financial circles. Business schools have beefed up their courses in this area, but law schools seem to be feeling more sanguine since law firms haven't been fingered to the same extent as banks. This came to my attention when I heard about an interesting situation regarding lawyer and client relationships: something on which I have just written a paper.

Many think that the regulation of lawyers in the UK is looser than that elsewhere especially the United States. The Solicitors' Code of Conduct (and the Code of Conduct of the Bar of England & Wales) are quite brief documents compared to the American Bar Association Model Rules of Conduct.

One aspect that has arisen recently is when lawyers have sexual relations with their clients. This particular case is yet to be determined, but it indicates there may be more going on than we thought. The ABA (and the states that have adopted this) have taken a strict line on this.
Rule 1.8 (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.
The days of Arnie cozying up to his divorce clients in L.A. Law are long over. But then anyone who has seen This Life or North Square on British TV will know that it isn't yet over--here. One aspect of Arnie's behaviour should be noted. His clients were not the typical repeat players that are the norm of corporate lawyers.

Suppose a corporate partner in a major law firm starts an affair with a client. There is nothing in the rules that expressly prohibits this. And moreover if they were both single, others might smile benevolently on the match. Presumably both would disclose the situation to their respective firms to ensure clarity.

What if, however, they were both already married? Then the repercussions potentially go wider. And let us assume the conditions of 1.8 (j) didn't exist. First, there would be the damage to the extant relationships especially if children were involved, causing heartbreak and disappointment.

Second, what happens to the lawyer-client relationship? (I realize compared to number one, this is a subsidiary matter.) Let's say the client is in banking--which was the subject of my paper--then this already places the participants in a small club. Both lawyers and clients. Since the lawyers tend to work for both banks and borrowers, the potential for conflicts of interest rears up. If the lawyer happened to be working for a client who was borrowing from the bank, would the client be content with the knowledge of his lawyer's relationship? What pillow talk might occur? (Doesn't exactly sound great if work is the post-coital topic.) Should the lawyer disclose the relationship? Or should the lawyer withdraw from the matter?

The Solicitors' Code of Conduct rule 3.01(2)(b) says there is a conflict of interest if:
your duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict, with your own interests in relation to that or a related matter.
This would appear to cover the situation where sex is involved. (Interestingly, rule 3.04 discusses gifts from clients to lawyers and says the lawyer should urge the client to obtain independent advice.) Of course disclosure of an illegitimate affair is unlikely because the consequences of such disclosure would go much further.

There is a third aspect to the situation. The lawyer has a fiduciary relationship with the law firm in which the lawyer is a partner. A partner is as much a business-getter as an hourly biller. Affairs of this sort are potentially damaging to the firm's interests if, for example, there were to be fallout from the affair. The bank could cease instructing the firm; it could insist that the partner be excluded from future work for the bank. And, if as I said, in my example above, a borrower-client might have an arguable case agains the firm for malpractice.

In all it could be quite a mess.

Friday, May 22, 2009

When Two Tribes Go to War...

The Father, The Son, and The Holy Mouse (TheDamnMushroom)

"Are we living in a land where sex and horror are the new gods?"
-- Frankie Goes To Hollywood, 'Two Tribes'

There's an interesting debate at CharonQC on the Bar and solicitor-advocates, which goes to the heart of some of the issues of what the English legal profession is. You can find out about solicitor-advocates here.

Here is the opening salvo from CharonQC:
The legal profession as a whole faces competition from the so-called Tesco Law providers; but closer to home, and very much an issue of the present, is the ‘war’ going on between the two main branches of the legal profession – The Bar and Solicitor-advocates.

First, it was Judge Gledhill expressing robust disapproval (at an impromptu press conference at the end of a case ) about the way solicitor-advocates had conducted themselves. Paul Marsh, president of The Law Society, objected. Then it was Lady Justice Janet Smith, president of the Council of The Inns of Court, writing to resident judges seeking evidence about the quality of work done by Solicitor higher-court advocates (HCAs).

Lady Justice Janet Smith has now ‘taken the unusual step’ of withdrawing her letter.

Join the debate!

Tuesday, May 19, 2009

Want to Know About (Cycling Around) London?

This is an off day for me while my right arm recovers from a minor operation to move a compressed nerve--the result of a cycle accident a while back.

A lad, in his first car, was late for his sister's wedding and had the sudden urge to have me practise somersaults over the roof of his car. I was pretty good at it and managed to combine it with a nifty sideways roll which prevented the 38 bus rolling over me. The applause levels were fairly muted at the time.

The dear little runt tried to claim it was my fault but the bystander witnesses, bless them, awarded him null points for that. Needless to say he was even later for his sister's wedding.

I thought I'd fill in the time by mentioning a new website about London. Daniel Shore has designed an intereactive website for London landmarks. Daniel says:
The site provides audio commentary on lots of London's top landmarks and is free - visitors use a map of London to pick sites and listen to tips, interesting facts and history. If you would like to check it out the site is at www.ComeAwayWithMe.co.uk/LondonAudioGuide
If you are coming to London and want to know where to go and what it will be like, Daniel's website is worth bookmarking. Enjoy.

I shall now go back to improving those somersaults...Maybe a few back flips, some head spins...Cycling keeps you fit....Did I say that this is the second arm to operated on to move the nerve because of this bike accident? At this rate I will be bionic.

Saturday, May 16, 2009

The Bar's Worried About Solicitor Advocates

The Bar has set up a working party to investigate unfair competition from solicitor advocates. (Hat tip to CharonQC for this) The Law Society Gazette has a full report.

The tone of the article is unfortunate in that the Bar thinks it is being treated unfairly because solicitors have the advantage of direct access to clients and can pay referral fees. This has been exacerbated by the crazy ramblings of Judge Gledhill about the inadequacies of solicitor advocates. What follows is a comment I made on CharonQC's blog.

I am surprised at this non-controversy. I and some colleagues did some research for the then ACLEC (an advisory committee for the Lord Chancellor) in the late 1990s (also shorter Law & Society Review article). They couldn’t understand why the take up of solicitor advocacy was so low.

We examined 4 areas of practice: criminal defence, PI, immigration, and corporate. Each field had its own culture and ways of working. Criminal defence and PI for a variety of reasons–convenience, cost, tradition–found using the solicitor and barrister combination workable and there was little impetus to change it. Corporate was changing even though the Bar was still an integral part of litigation. Solicitors were more actively managing litigation and controlling what barristers did. Some firms, eg, Herbert Smith, decided to go down the advocacy route and hired two QCs to run a one-stop shop. Immigration was like the wild west of law practice and anything went back then. It was full of cowboys. It’s been cleared up since, I believe.

But perhaps the biggest impediment to take up we found was simply age. Those who were mid-career had too much at stake to gamble on new modes of practice. While those at the latter stages of their careers had no reason. The younger lawyers saw it as a positive career step and sought that kind of work. But they had to convince those above them that it was worth doing.

Finally, there is a London effect. London has more barristers who can do the running around the courts much more cheaply than solicitors and so the incentives for solicitors to do this kind of work are less. Outside London it is a different story and this is now where the ruckus is erupting.

I am constantly amazed at the legal profession’s conservatism. Even after the Legal Services Act 2007, lawyers are behaving (and I included judges) as if nothing has changed or will ever do so. They can’t go on thinking that restrictive practices–and the Bar’s virtual monopoly on higher courts audience rights is one–will justify themselves over a cigar and the port with a few stories about some awful solicitor johnnies who get uppity.

Market forces are about to hit the legal profession, solicitors and barristers, with a proverbial vengeance. The movie, Perfect Storm, comes to mind. And no one survived in that.

Whether someone is good or not in court is simply resolved by observing them and evaluating them dispassionately. Some years ago a researcher from Bradford Business School observed barristers in court. They were ranked on competency scales. Approximately a half came out as “poor”. Those who will be investing in legal services and legal practice in the future will expect better. Poor service will be punished. At the moment it, because of present arrangements, largely escapes censure.

I’m sure there are good and bad solicitor advocates just as there are among barristers. Accountability and transparency–perhaps we should televise court proceedings (it would shut mouthy judges up) so the punters who pay for lawyers can see what they get–will win the day. And the consumer orientation of the new regulatory apparatus won’t be promoting lawyers’ interests over those of clients.

The Bar is creating a storm in a teacup.


Monday, May 11, 2009

Happy 4th Birthday, Blog!

Four years ago I thought I'd start a blog. Why? Hadn't a clue, just seemed a nice thing to do. It would be a bit like an online diary. My patience often flags and I was convinced this would die its own little death and end up like one of those abandoned satellites that whiz around the earth only in an ethereal void.

It didn't die. Nor did I lose interest. In fact I can't imagine living without my blog. It's become my alter ego: if I'm the me then it's the not-me. We can't occupy the same space but we are close. We aren't terribly sure what the blog is. I suppose it has more work-related posts than personal ones but they are important to me. So I and not-I are going to continue blogging for as long as we can. The first four years are just a warm-up!

The last few days have been a reflection of the mixed state of this blog. I am furiously trying to finish a paper on lawyer-client relations, which is almost there. Unfortunately a few weeks ago I went to a seminar on professions and encountered a book, Architecture Depends, by Jeremy Till. I have been reading it this weekend and now I have to radically revise my paper because what Till says about architects also applies to law. I have to incorporate some of what he says, especially his use of contingency in architecture. I have been galvanized by what I've read in this book. And I recommend to anyone who is interested in professions. READ IT.

Damn, bloody Till! Why did he have to do that? Didn't he realize he I was almost at the end of the bloody article? How inconsiderate can one be? If the book had come three days later, it would have been too late. But no. The bloody thing comes just as I'm thinking, "This is it, you're almost finished, John."

Of course if that was all, I wouldn't mind too much. No, of course there's more. Till, it turns out, is dean of architecture at my university. OK, that's not too bad, but there's more. His house (click here and go to Stock Orchard Street) known as the Straw House was actually one of the very first houses ever portrayed on Grand Designs--see my previous post--and he then taught the architect who designed my Grand Designs house.

It doesn't quite finish there. Till used a fiendishly complex German heating system in his house which my architect was enamoured of and had put in his house. Which of course meant the bloody thing went in mine too. Problem was the stupid plumber didn't know what to do. We had to contact Till's plumber who it seems was the only person in the country (all right, London, but that is the country) who knew how to install these systems. According to him we could have heated the entire bloody neighbourhood with what we had. Looking sideways at my architect, I was wondering where the bloody money was going....

I feel as though I have lived with Till for a while but now I've got to read him as well as live with him. It's too much, I tell you.

But do read his book. It's terrific.

Saturday, May 09, 2009

From Hero to Zero/Celebrity Big Brother

Jade Goody's trajectory went from being nothing to becoming a celebrity then collapsing in the racism row over Celebrity Big Brother and finally redeeming herself by publicly dying of cancer. This all took place between 2002 and 2009.

My colleague, Guy Osborn, organized a seminar today to lauch a special issue of the Entertainment and Sports Law Journal. The topic was: "Governing Celebrity: Multiculturalism, Offensive Television Content and Celebrity Big Brother 2007. The issue is freely available online. Two of the authors, Lieve Gies and Dania Thomas, presented their papers. Bettina Lange was the discussant. Les Moran chaired. There is a fascinating mix of articles by legal scholars and sociology of media scholars.

During the 2007 series of Celebrity Big Brother a Bollywood actress, Shilpa Shetty, who was virtually unknown outside India, rose to fame on a sequence of racist comments by women in the CBB house. The most notorious was Jade Goody who was summarily evicted. There were even diplomatic tensions between the UK and India.

Although these television shows are called reality TV, there is nothing real about them. An interview clip with Jade on YouTube shows how celebrity alters people and makes them deviate from the norm. The celebrity is a mode of representation, a construct, not a real person, one who is ultimately consumed by their celebrity.

So, I encourage you to read the special issue. One of the nice things about online journals is that they don't have to be static. This one will expand in the near future with input from Ofcom and Bettina Lange.

Disclosure: Once upon a time I appeared on reality TV in a television programme called Grand Designs. The programme makers follow the process of the building of a home. It is strange when one can be far away from one's home and someone says, "I like your house." There are roughly 5 million people who know my house as well as I do. And it's not that big...

Thursday, May 07, 2009

Merging Inner Temple and Middle Temple Libraries

I am reposting an item from CharonQC's blog in which he asks for your vote on the possible merger effects:

Poll: Inner Temple and Middle Temple Library merger possibility

There is a feasibility study by Inner Temple and Middle Temple ‘to investigate the potential benefits of merging their Libraries and creating a Joint Education and Advocacy Centre.’

The full text of the statement by Vivian Robinson QC, Treasurer of Inner Temple may be viewed here.

To get a rough idea of sentiment from members and others about the plan to merge the libraries I wonder if you would be kind enough to take a bit of time to fill in this Poll. I ask but one straightforward question. It does not pretend to be a scientific poll but it will, at least, give an idea of sentiment. You may of course, comment on the idea in the comments section below and I would be delighted if you would.(Previous comments are available in the comments section to this earlier post)

If you are a fellow blogger may I ask a favour and ask you to put a piece on your blog drawing attention to this poll. If you are a law librarian or academic or student, would you be kind enough to spread the word.

At least, with a poll, we will get some idea of the view of directly and indirectly interested parties.


Tuesday, May 05, 2009

Further Adventures of the Bonsai

(Thanks to New Yorker)


Monday, May 04, 2009

Ninja Bonsai

(photo by Poe ♪)

I have a bonsai which I've lovingly tended for a few years now. It's a Chinese Elm, about 80 years old. It lives outside all year and even though it is deciduous, it never sheds its leaves.

I find it marvellously therapeutic to take my bonsai scissors and snip away trying to maintain a cloud formation like in the picture above. It's one of those little tasks I do whenever I have a spare moment. It requires total concentration and mindfulness. Nothing else intrudes.

In the last year as things went somewhat awry for me, I neglected the bonsai. I couldn't get into the right frame of mind. As Pirsig said in Zen and the Art of Motorcyle Maintenance, the first requirement is peace of mind. I didn't have it.

The bonsai showed me the state of our affairs by dropping its leaves and growing straggly. I couldn't look at it without feeling guilty. Why am I taking it out on you? It's not your fault. No answer. Then we had one of the coldest winters in England and I left my bonsai outside. No protection. Was I cruel? Probably. But I couldn't bring myself to tend to it.

In the last few weeks Spring is making the garden inviting and I want to sit in it. But I could not sit easily as the bonsai was unhappy--loss of form, loss of leaves, loss of dignity. No, I couldn't let it go on.

I found my secateurs and started cutting: hard. I've been ruthless. I cut outside and then went inside taking out the dead wood. I've scraped off the scale insects. For two weeks now I have been cutting. It is both painful and fulfilling.

I have opened up the bonsai and I can see lots of buds ready to open up with leaves. The shape is still indistinct. I found my bonsai scissors which allow a much finer, surgical cut than secateurs. I'm trying to cut for shape. But I think I will have to leave it for a couple of weeks to produce more leaves so I can see what I have to work with.

We are part of each other's lives now. I sit in the garden, read, drink a glass of wine or cup of coffee. I gaze over at the bonsai and I feel it is bringing me back into life. We are both feeling happier and I'm looking forward to seeing my bonsai in full leaf floating on its clouds, doing what it does best.