Lawyers and their consciences - a response to David Allen Greene
Dear Tom Clark, Editor of Prospect Magazine,
I refer to the piece by David Allen Greene (DAG) in Prospect (for) April 2021:
So you want me to judge my clients?
I look forward to my copy of Prospect, and I usually enjoy DAG's pieces, which are invariably interesting and thought-provoking. This time, though I am left with a deep sense of unease about the piece, and some confusion about what is the point he seeks to make. If it is that lawyers – perhaps UK lawyers? – should exercise more moral (moralising?) judgment about the cases they are prepared to take on, and they don't do it enough, but that, nevertheless, “better the Devil you know”, then I couldn't disagree more strongly. Of course I would agree with his concluding observation that
...when you blame lawyers for the law, somebody far more culpable escapes blame.
but I do not agree with the reasoning he employs to get there. If he thinks he is being supportive of the legal profession and its rôle in our communities then he is, in my view, misguided.
Why am I bothering to write this? Because Prospect is a magazine read by many opinion formers in the UK. How they view the legal system and professions matters to what happens to Justice in this country, which has already been neglected for far too long.
I see what I do in pretty simple terms. My job is to take the instructions I have from clients as to what happened (ie. the facts) and what they want to do about it, and advise them upon my understanding of the law what is doable and the best achievable outcome for them; then I represent them as best I can to achieve that best outcome and (preferably) the outcome they want. As DAG points out, that can often be by negotiated settlement away from court, but if that fails then we go to a judge.
My job, however, is not to judge clients legally and, even worse, morally. That's another job, honestly. I didn't train for it. Lawyers judging clients feeds miscarriage of justice. Plenty of unlikely cases have turned out to be absolutely correct. It can be a lawyer's most important rôle to investigate and show that the client's unlikely account is or may be true, and that the basis of the other side's case is flawed, however unpalatable the client's account. It is also an essential part of our democracy that lawyers will act professionally for people with unpopular views and causes and those who are accused of - and may have done - unpleasant things. It is true that the cab-rank rule for the Bar does not strictly apply to other lawyers, but my experience is that it is rare for lawyers to decline to act for those with unpopular cases to make.
There are limits of course. I like to think I would have acted for Hitler at Nuremberg if asked to do so, but I can't be sure. If I had declined, however, I would have felt bad about not being strong enough to do it, because I would have failed in my professional duty as I see it. The recent furore about Dinah Rose QC's instruction for the unpopular Cayman government is a case in point. I was delighted that my friend and colleague Edward Fitzgerald QC, who is representing the appellants in that case, has been clear that Dinah acted “perfectly properly” in accepting the brief. It is true that for regulatory disciplinary purposes, that is as to whether we can be disciplined for failing to take on a case in a field in which we practise, our Code of Conduct provides that the cab-rank rule:
...does not apply if… accepting the instructions would require you to do any foreign work (defined as legal services of whatsoever nature relating to… court or other legal proceedings taking place or contemplated to take place outside England and Wales).
but this means that, in addition to instructions to appear before the courts of foreign states, the cab-rank rule does not apply to instructions to appear before the very familiar arbitral tribunals or international courts, such as the European Court of Human Rights, the International Court of Justice, the International Criminal Court, and the European Court of Justice (no longer applicable). Should I not feel obliged to act for clients (including UK citizens) in those tribunals? Ironically perhaps, the Cayman case is to be heard by the Judicial Committee of the Privy Council in London (staffed by our Supreme Court Justices), so that the cab-rank rule does apply to Dinah's instruction in that case and she is professionally obliged to accept the case.
Irrespective of the precise conduct rules, however, in my view it is incorrect to draw a distinction between cases within the domestic legal system and abroad. In my mind I am on that cab-rank for anyone who wishes to instruct me and for whom I can properly act as a barrister trained and practising in England & Wales.
It should not be thought that lawyers find it easy to meet this professional obligation. It is a very difficult thing to act for someone alleged to have abused children, for example, and cross examine the children upon the basis that they are not telling the truth. (But do you not want us to do that firmly and assertively for your father whom you consider wrongly accused or who, even if suspect, denies the charge?) It is now well-recognised that advocates suffer secondary trauma and various forms of mental illness as a result of conducting these cases (and others).
It is, however, crucial to the integrity of our system of justice, that we do it if those are our instructions, so that the evidence is properly tested and convictions are only correctly entered. As I took to responding to the inevitable “How can you defend the guilty?” question, when I was a junior barrister undertaking criminal cases, if the guilty can be convicted when the evidence is insufficient, that means that the innocent can likewise be convicted without the evidence. Now that would be good, wouldn't it? By the way, why is it that no-one ever asks “How can you prosecute the innocent?” It happens a lot because prosecution is dependent upon allegation, and it is not for the police or CPS to judge the outcome save that they must consider there are “reasonable prospects” of a prosecution succeeding, a far lower test than to prove a case, and will itself depend heavily upon the condition "if the complainant is believed".
In addition, even when convicted, it is right that Defendants have their mitigation, such as it may be, put forward to the court properly and fully. Sentencing is a nuanced process, not “all or nothing” and “throw away the key”. The court needs the correct assistance to reach the right sentence for the crime in all the circumstances.
What is at the heart of the misunderstanding that DAG promotes in his piece is a rather quaint idea that there is this clear thing called “the law”. In the work I do I wish it were so, or rather I should not wish it, because if the law were easily accessible, understandable and straightforward, then people – especially already trained lawyers who instruct me as a barrister - would not need my help to interpret it, argue it and sometimes change it, and I would not have this job which I love.
In any event though, in my experience it is far more often the case that a legal dispute turns on different accounts of the facts. Faced with this, one is often advising that, if the client's account is accepted, then the result may be X,Y or Z. This advice is often first given when the other side's account of things hasn't been seen or heard. When they are clearly set out, the accounts are often polarised and the areas of uncertainty accordingly substantial. Paradigmatic, perhaps, is the “road accident between two stationary vehicles”. A judge can accept one party's account, or the other's, or (very commonly) a mixture of the two (or more). A lot of advising is therefore about risks to the client of different scenarios, strategies and, ultimately, findings of a court. The more the risk, the more likely a rational client (and one should bear in mind that clients are not necessarily rational, intelligent, articulate or of full mental capacity) is to want to settle at less than total victory, which latter, by the way, is a rare thing. In the negotiation context, this is not I think really any different from business negotiation outside the legal sphere.
Then there are the uncertainties about the law itself, and what it does when applied to particular factual scenarios. Judges are human and they get things wrong like the rest of us. They are required to apply existing “authority” even though social and cultural changes may have made those authorities outdated and ripe to be reconsidered by senior courts. Especially in novel situations, then, we know that we may have to fight cases through initial trials to appeals at various levels of court. Lots of costs. Lots more risk.
You will see that I don't see the outcomes of court cases as “a tribunal swoops in to ensure a just outcome”. That's the hope but it is a rather naïve expectation I would suggest.
The reason I'm writing this, though, is that DAG's piece encourages the sort of lawyer-bashing with which I'm pretty fed up. Admittedly this is a fairly gentle form, but DAG is a lawyer himself and I believe he's just wrong in a lot of it. Speaking of what the law lets lawyers “get away with” is really unhelpful. And unfair.
Take, for example, the reference to Rudy Giuliani:
A lawyer may have any old client, but a lawyer cannot tell the court any old thing. Even a lawyer as partisan as Rudy Giuliani could not bring himself to mislead a court by alleging electoral fraud for his client Donald Trump, though both freely made such allegations outside of the courtroom.
Let me be clear. Deliberate misrepresentation of any form by a lawyer is an abomination. It was drummed into me at a very early stage in my career that anyone who wasn't “straight” would soon get that reputation and be unlikely to have a career at all. As far as I am concerned, the common suggestion that lawyers “lie” on behalf of their clients is anathema to the vast majority of honest and hard-working lawyers. It is not professionally acceptable to be misleading on anything, and if you are caught doing it you will be distrusted and ostracised by colleagues, and quite possibly struck off. The latter rightly depends on the gravity of your offending, of course, but any form of dishonesty will usually do it!
It is not even acceptable only to rely upon the legal authority which supports your case; instead your professional obligation is to put before the court all relevant authority on the law – for or against you - so that the judge can make an informed (and hence legally correct) decision. End of. It is truly sad that this is not better understood.
I suspect that the reason our friend Rudy would not make the case in court was because he well knew he would be destroyed, so that it was about him rather than the case. I fear he was even in this failing to do his job, since it is our obligation to make even the embarrassing/unpopular case if instructed to do so and there is some basis (not necessarily so much as the “missing” evidence of electoral fraud in the US case) upon which to make it. The point is, however, that it makes no difference whether you are in court or out. If it is something you have no arguable legal basis for saying, then it is professionally improper to say it. That makes it a breach of any of the professional ethics codes in the UK. Those codes, and their enforcement by the disciplinary arms of the Bar Standards Board, the Law Society or CILEX, make another important difference between lawyers and non-professional people; I can be punished for non-criminal conduct if I am in breach of my code and, in general, bring my profession into disrepute. The professional codes seem to be ignored or demeaned at times, but they matter and they work. In my field of personal injury claims, witness the debacle of the opening up of the market to the “claims handlers” who resorted to the dreadful cold-calling techniques actively encouraging false claims, so much so that, like many others, I no longer answer my mobile phone to unrecognised numbers, as I was not in a road accident 2 years ago for which I “necessarily” have a claim for whiplash injury. At the risk of excess repetition, that is really not allowed for properly trained and regulated lawyers.
I am not so naïve as to believe that there are not lawyers who “sail close to the wind” on, or even simply breach, these principles of professional conduct (and sometimes the criminal law too), but as to the former, even the close-to-the-wind-navigation may be consistent with representing your client to the best of your ability without crossing the line. If you cross the line, however, you deserve all you get. Lawyers, of course, are human too, and may break the rules like anyone else. My point is that, like most people, lawyers are generally honest, straight, hard-working and, additionally, professionally regulated people trying to do their best for their clients of all types.
The talking down of lawyers over many years shows a serious lack of leadership in public debate. The impression created for the public of “fat cats” with their “snouts in the trough”, “lining their pockets” at the expense of their clients or the public purse and – for Heaven's sake! - causing or permitting terrorists to come into the country, could not be further from the truth. The truth is that in recent years we have systematically starved the court system and publicly funded legal profession of the funds needed to provide proper service to the public, at least in the areas of work which really matter to our social cohesion because they serve our communities, especially criminal work, family work and public law areas concerning matters such as benefits and housing. Lawyers in those areas of work – and others – have seen their incomes substantially reduced under all recent governments. The real effect of this is long term. Those areas of the professions are ageing rapidly and hence declining, because the older practitioners are “in it now” with the usual family commitments and acquired expertise (it's hard to move into a new field when you are in your 40s or 50s), but the young are disinclined to seek training or jobs in those fields.
I loved doing criminal work, speaking to juries directly to persuade them of my client's case, but I cannot say I now encourage anyone from modest background such as myself – and DAG I think – to go into that field. It is one thing in the full flush of youthful and cheap-living enthusiasm to do “exciting” work. It is quite another in late 30s and onward to face the reality of average earnings - or not much beyond it - whilst regularly being called out in the middle of the night to attend a police station on the duty solicitor scheme, with a day's work behind you and another to come. That is the “glamour” of the “fat cat”'s life at the sharp end.
Another aspect of this problem is that the economic drive is towards legal professional rôles being increasingly occupied by those from more wealthy and privately-educated backgrounds, after many years since the advent of Legal Aid and (the former) fully granted education, when they became more and more representative of the public they are there to serve. Let's just say this is a bad thing, a reversal of progress which saw the number of state-educated High Court judges rise steadily from the 1960s. That trend is now in reverse.
Moreover, more and more citizens charged with criminal offences they may not have committed (try the convictions for supposed breach of the Covid regulations which have been overturned in large numbers subsequently!) and trying to deal with family breakdown, or threatened sacking or homelessness, are having to try to navigate really complex legal issues without legal advice or representation.
Sadly we have experienced a sustained form of “othering” where people are led to believe that the criminal justice system is about “those wasters and criminals” and, in my field, those who claim compensation for injury at work or in car accidents are “on the make” as part of a “compensation culture” (a concept wholly discredited on the data by the way), and are astonished to find that the “best justice system in the world” does not actually afford them the opportunity to have legal representation and assert or defend their legal rights when it is them or their families whose rights are in issue.
Simultaneously, politicians and the media have asserted that the answer to any problem is to pass another law. It isn't. We have plenty. Passing more and more legislation has the effect of making the law more and more complicated, and less and less accessible, just as those resources for the legal system are more and more constrained. Frankly, it's a mess. We are a long way from the “four pillars of fairness” in post-WWII Britain: Social Security, Health, Education and Justice.
Access to civil justice as enshrined in Article 6 of the European Convention of Human Rights - drafted by us on the basis of long-standing common law principles of course – is honoured in the breach for those forced to be a litigant in person. When DAG opens with
That everyone is entitled to legal advice is a proposition easy to commend in abstract terms...
and later adds (three times) that
...everyone is entitled to a lawyer/legal advice...
he is speaking in exceedingly abstract and theoretical terms, for it is simply not the reality in our justice system today. Judges try their best, but the belief that the “assistance” to the unrepresented litigant that can be given by an impartial arbiter there to ensure fairness to both sides can make up for proper representation for both sides is, frankly, ridiculous.
You will forgive me, I hope, if my concern is more about the (non) representation of citizens in this country than whether occasionally one of my colleagues acts for a “tyrant” (please define!) in a foreign dispute. Forgive me too, if I smile at the thought that “some injustices are therefore not inflicted by a court, but by lawyers”. You are “having a laugh” DAG – would that I was so powerful! I do agree, however, that
Choices made by lawyers as to who they will advise and represent will be the direct cause of unjust results.
Indeed. Precisely the reason for a cab-rank rule and similar professional ethics amongst my lawyer colleagues.
Even when the importance of the law and the legal profession is discussed by our leaders, it is often focussed on praise of the foreign exchange benefits of the expensive arguments between Russians (other nationalities are available) who many would think stole the money they are arguing about from the people of Russia in the first place. I'm afraid I do not subscribe to the view that this is the value our legal system and legal professions add in our society. (Apparently we are again allowed to say that “society” is a thing.)
The “rule of law” is totemically regurgitated in political debate and in the media, often with little apparent understanding of what it means and its full implications. I was pleased to be one of the senior lawyers who wrote to the Home Secretary in October to complain about unwarranted attack on lawyers:http://bit.ly/SeniorLawyersComplaintLetter.
Put shortly for present purposes, however, the idea that people have legal rights means nothing unless they can assert and establish them. The growing awareness of “ordinary people” that they have rights, and hence the growing appetite to assert them, has indeed increased the numbers of claims and hence, inevitably, the cost of a properly funded legal system. And? In what sense can we as the 5/6th richest nation not “afford” that? Yet citizens are now reduced to “crowd funding” actions depending on whether they can persuade enough members of the public that theirs is a “good cause”. So now you need to be wronged against and popular. Nice.
In acting for people with unpopular causes or unpleasant causes and cases we are not “doing harm” in the professional sense implied by DAG in his comparison with other professions, we are in a very real way upholding the rule of law.
So can we please stop bashing the lawyers (other bashed professionals are available) and recognise that they are generally honest and hard-working people doing their best for their clients. The bad 'uns can and should be driven out. I'll be first in the queue to do it.
Covid is supposed to have caused us all to take stock of our lives and what is important in them and to reconsider our allocation of resources. So let's have a good think about Justice, why it is so important that all of our people's legal rights are real and enforceable for them, and sort it out.
And, as a first step, please stop suggesting – even implying - that I should judge my clients rather than simply act for them.
THEO HUCKLE QC
is a barrister; he was, as
Counsel General for Wales, a member of the Welsh Government, and is currently
Chair of the Wellbeing At The Bar Working Group, and a
Board member of Justice.org.uk and Advocate(BarProBono).
The views expressed are, of course, his own.
10 March 2021