Has attack warning come too late?
Professionalism is under threat. So said Lady Justice Hallett in a little-noticed speech at the end of March to the Solicitors Association of Higher Court Advocates (SAHCA). Dame Heather Hallett’s concerns were echoed by Baroness Deech, chair of the Bar Standards Board, in a lecture she gave at Gresham College last week. If things are bad enough to worry senior judges and frontline regulators, then perhaps it is time for lawyers to look beyond the challenge of making a living in difficult times and consider the future of their once-great profession.
It is well known by lovers of metaphor that you can boil a frog alive by slowly heating the pot of cold water into which you have placed it; if you drop it straight into boiling water, it will jump out. I offered this explanation last week to a visiting Commonwealth judge who could not understand how lawyers in England and Wales had so readily given up the priceless asset of self-regulation. Their problem, I suggested, was that they had not noticed the temperature rising.
Hallett believed ‘the rot started arguably with Margaret Thatcher’ who had little time for the ‘self-interested pomp of the professions’. Thatcher had been called to the bar, Hallett noted, as had Tony Blair, who set in motion the review of self-regulation conducted by Sir David Clementi that led to the Legal Services Act 2007.
‘Now that I am in the position of administering parts of it,’ Deech observed, ‘the act seems to me to be a rather unsatisfactory piece of legislation… Rather than sorting out the maze of regulation that Clementi identified, the statute adds to it.’ Deech noted the widely held view among barristers that, although solicitors had rendered themselves vulnerable to reform by their inadequate response to client complaints, the bar neither needed nor deserved such a heavy regulatory structure as the 2007 act. ‘Or one might even surmise that there was a hidden plot to crush the bar out of all recognition,’ she ventured.
‘If we are to have a fused profession, then let us at least be upfront about it,’ said Deech. The non-practising barrister and former Oxford college principal saw some advantage in a common training system for would-be solicitors and barristers that would allow them to specialise a few years down the line.
As a former chairman of the bar, Hallett agreed that this is no time for solicitors, barristers and chartered legal executives to be at each other’s throats. If the leaders of the profession are seen as self-interested and protectionist trade unionists, she continued, they will lose most of the arguments.
Why, though, was Hallett speaking so passionately about a profession that she left when she became a judge 13 years ago? It is not just because, as she said, ‘any move to turn an honourable profession into a trade would threaten the profession’s integrity and its independence’. It is because ‘this, in turn, would impact on the independence of the judiciary’. The two are mutually dependent.
And it is a judiciary she may well lead before too long. Hallett is well placed to succeed Lord Judge as lord chief justice, unless Lord Justice Leveson pulls a blinder and is thrust into office by a grateful nation. She is widely believed to have been Jack Straw’s favoured candidate for president of the High Court family division and the real reason why, as lord chancellor, Straw blocked the appointment of Sir Nicholas Wall for as long as he could.
So when Hallett says that professionalism is under attack, her words deserve attention. ‘If something has gone wrong, the right course is not necessarily fundamental reform and new structures,’ she said. ‘It is worth analysing first what is good and precious about the system’ - such attributes, she suggested, as a strict professional code, high standards and an ethos of personal responsibility.
Has the pass already been sold? Although this is a conclusion Hallett seems unwilling to embrace openly, her SAHCA lecture suggested that she believes it may already be too late. ‘How,’ she asked, ‘can a lawyer on a conditional fee agreement avoid a potential conflict of interest when an offer is made to settle?’ And what happens, she asked, when young and ambitious lawyers working in alternative business structures find themselves faced with situations in which their duty to their clients or to the court conflicts with the interests of shareholders?
Hallett recalled that Clementi intended - ‘and parliament was assured by the sponsoring ministers that the government intended’ - a ‘light-touch’ regulatory regime. But Deech pointed out that the Legal Services Board, as the ultimate regulator, ‘has every facility to be the tool of government policy’.
True, but many of our constitutional checks and balances depend on people exercising their powers in an honourable way. The LSB has done nothing to suggest that it wants to put the rights of the consumer above the rule of law. Its aim is to ensure greater competitiveness, giving clients a better service at lower prices.
Hallett accepts that those who promoted the Legal Services Act may have been well-intentioned. But she said that those who care about the rule of law and the independence of the profession must be on their guard against the possibility that the act ‘has introduced an unnecessary and expensive layer of bureaucracy, and a dangerous one at that’. Do not say you were not warned - even if the warning has come too late.