Judiciary has failed to lure City lawyers, lord chief justice admits
The head of the judiciary has admitted being ‘unsuccessful’ in persuading City lawyers to become judges.
Lord Chief Justice Lord Judge told the Lords Constitution Committee yesterday that, if he could persuade City lawyers and their firms that a judicial career is a plausible option, ‘we would have a more diverse judiciary’.
Concerns about the reluctance of City lawyers to apply for judicial posts were highlighted by Dame Hazel Genn in her December 2008 report. The Law Society has similarly expressed concerns.
‘We have a problem,’ said Judge.
‘The appointments commission can only choose from those who apply for appointment. Then, it can only choose those who are of adequate quality. I have tried terribly hard to get solicitors working in the major firms – who after all are attracting some of our brightest and best young men and women – to apply for appointment as a judge.
‘I am being unsuccessful. Yet there, there is a huge pool of men and women who could adorn the bench at all levels, right up to the Supreme Court. I cannot persuade the major City firms that this is a sensible route that should be available to some of their men and women. If we had that, we would have a more diverse judiciary.’
Judge criticised the continuing move towards overly prescriptive acts of parliament, and called instead for more broadly worded legislation.
‘I’m not being facetious about this, but do you know there is a guideline for judges passing sentence on those rather odd people who have sexual intercourse with a corpse?’ he said. ‘There’s a different possible approach depending on whether it’s with the same corpse, or a different corpse.
‘It’s all to do with the idea that you can legislate for just about every possibility, and the answer is, you can’t. I would much rather have legislation that was much broader and much less prescriptive.’
He said that judges need to shake off their out-of-date perception of their role in the media, and get up to speed with the fast flow of information.
‘The judiciary used to take a view [that] was entirely out of date,’ he said. ‘I do not think that judges can work on the basis that the only thing they can ever do is say what they have to say in court and not deal with the matter any further. Judges have to face the fact that they live in a very fast-moving information world, that what they do is a matter of public interest.’
Judge said that the media and judiciary are interdependent, and that he has asked resident Crown court judges to improve their relationships with editors of their local newspapers.
Former attorney general Lord Goldsmith asked Judge what he saw as the proper role for the lord chief justice when laws were being formulated in parliament. Judge said: ‘The reason that I’m here is because, under the constitutional reforms, the lord chief justice can’t come to speak in parliament. I would have not been unhappy to have been able to come to say what I had to say in parliament about the Public Bodies Bill, which really does impinge on judicial independence. I don’t think that to come and sit on the steps, not even as a cross-bencher, is of any value.
‘If there’s no broad consultation [on acts of parliament], there’s something rather worrying about judges going to have private words with attorneys general or lord chancellors. I don’t think that the lord chief justice of the day should say to the attorney general of the day, “I think this proposal is bunkum”, because it’s interfering with the political process.’ Judge said that he would rather advise the attorney general of the practical consequences of a proposal.
Comments
Judiciary has failed to lure City lawyers
The last thing we want is a judiciary made up of city solicitors.
Most, if not all, "specialise" to such a degree that they are so narrowly focused on one area of one area of one area of law that they have no overview of the legal system or other areas of law, even those which overlap with their own "specialism".
Many of the senior solicitors have trained at large city law firms, keeping their noses clean and being promoted for this reason (plus of course based on their billing levels) rather than any real ability.
I also fear for the costs assessment conducted by these people. At the moment the judiciary, whilst being uncomfortable in dealing with costs, have some grip and prevent these large city solicitors claiming even more ludicrous sums than they currently do. imagine a city solicitor, bred in the culture of silly costs targets and disproportionate billing being asked to assess another large firm's costs... "oh it looks ok, have 100%"...
Diversity
Many city lawyers will have exactly the public school/university backgrounds for which the existing judiciary is renowned. I say that as someone who has an Oxbridge degree and trained at one of the big city firms. If Judge LJ wants diversity, he should be trying to encourage solicitors from a diverse range of firms to be applying for positions on the Bench - not just lawyers from city firms.
Regrettably, Judge LJ's comments demonstrate that he has fallen into the trap of believing that the only competent lawyers are (a) those who go to the Bar and (b) those who go to city law firms. Those generalisations are no longer true (if, indeed, they ever were). Judge LJ should reflect upon how his comments are likely to sound to non-city solicitors; whether his comments are likely to encourage solicitors of any description to consider applying for the Bench; and why, during the recent round of judicial appointments, so few of the solicitor applicants were successful.
City Solicitors and the Judiciary
The reality is that the judiciary has not failed regarding appointment of solicitors (whether based in the City or otherwise). The problem is that, in order to have any sort of realistic chance of securing a permanent appointment to the circuit or High Court bench at optimal age (say, early 50s), the applicant has to have sat part-time as a Recorder or Deputy High Court Judge for several years. None of the City firms I know are going to allow partners at the peak of their fee-earning capacity to spend six weeks of the year (on top of holiday entitlements) doing non-chargeable work. What's in it for the firm? Until that changes, City solicitors will simply not meet the appointment criteria - even if they do apply (which they appear not to bother to do - possibly ofr the very reason I have mentioned). In contrast, the self-employed status of barristers allows those who have judicial ambitions to structure their professional commitments so as to ensure they have the time to fulfil the annual part-time sitting requirements. Against this background, is it any wonder that few solicitors (especially those from a City background, who in my experience quite frankly are almost always a cut above those from the provinces, contrary to what others say) make the cut for judicial appointment?
The solution lies in City firms looking beyond the almighty pound, euro or dollar. There are undoubtedly litigation solicitors (whose practices tend not to be as specialised as the overpaid document monkeys in corporate/banking/capital markets) who make very good judges but who will never have a snowball's chance of appointment while their firms keep them chained to their desks.
It isn't just City solicitors...
Most solicitors in commercial practices do predominantly non-contentious work and generally, the larger the firm, the more specialised solicitors become in particular practice areas. The application processes have become more skills-oriented but still focus very heavily on existing contentious "nous" and knowledge of practice areas that will largely be alien to commercial solicitors.
If there is a real desire to expand the number of solicitors entering the judiciary it will be necessary to work much harder on identifying skills and potential rather than contentious experience. When looking at future judges from the City and regional equivalent practices it would be worth targeting much younger lawyers rather than bemoaning the fact that few equity partners want to give up £1m a year to fight for a small number of senior judicial posts of sufficient social standing to make up for the loss of income.
If there were to be a concerted push to recruit from non-partners at the 8-15 year PQE level for District Judge level posts (which are salary competitive) while setting out a much clearer career path from there through to higher levels of the judiciary there would be more success in broadening the judiciary. Perhaps this could be combined with creating a "development stream" for Recorders from non-contentious backgrounds and trying to persuade more from such backgrounds to apply for it.
Looking for up-front references is also harmful as it requires candidates to harm their internal career prospects in order to apply for the judiciary. Chambers often will be happy for their members to join the judiciary as a mark of their quality but as an employee it is career suicide to express anything other than commitment to the firm and its future profits - who wants a partner who wants out or a senior associate who is actively considering leaving rather than knuckling down to win the work needed to make partner?
And when you apply, they don't want you
So when I retired early from my city partnership doing employment law, I applied to become an Employment Judge. The part-time route is hardly viable for a solicitor still wanting to practice, given the restrictions now imposed on practice even on part-timers who may well probably sit for only 30-45 days a year. But that is a really big commitment to make. And having worked my socks off in practice and not been a part-timer before, I lacked the judicial experience to be at the top of the list to get a full time post, though I did make it through the final round.
So Judge needs to do more to make part-time appointments viable or as the previous poster said, look less at previous judging experience as the main criterion for appointment, otherwise solicitors will always be at a disadvantage to barristers.
And no I did not go to public school but I did go to Oxbridge