Jonathan Goldsmith

Jonathan Goldsmith

We are not alone in the UK in the difficulties we face as lawyers. Many countries are going through similar travails. But because they have different legal systems, the problems manifest themselves in other ways. I shall use the United States as an example. 

The Competition and Markets Authority (CMA) in the UK is keeping us under the cosh. For instance, it made several recommendations to frontline legal regulators in its December 2016 report to improve the information available to consumers in the legal services market. It said that it could review the market again in three years’ time, and if insufficient progress had been made, it could open a market investigation.

I had always assumed that the US competition authority was more quiescent towards lawyers - but no longer. Around the same time as our CMA report was published, the Florida State Bar Association launched an investigation to determine if a particular mobile phone app was an unlicensed practice of law. The app matches drivers who have traffic tickets with lawyers who agree to defend them for a fixed price. A few months ago, the app sued the bar, claiming that it had conspired with a lawyer-run rival to the app to scare lawyers away from working with it.

The US Department of Justice (DoJ) has now intervened in the case with a statement of interest, on the side of the app. It does not agree with some of the bar’s argument against the app. What is interesting is that the app’s lawyers did not contact the DoJ. Rather, the DoJ follows these cases itself, and intervenes when it thinks necessary. The specific arguments are different to ours, because of the US’s structure. But the underlying motive is the same: bars must be careful that a fight against particular technological developments does not amount to anti-competitive behaviour. (I know that mandatory price transparency for solicitors is a complex matter, where more standardised information does not of itself lead to greater protection or better choice, but that is a debate for another day.)

Second, we might have thought that the ‘enemies of the people’ attack on the judges by the Daily Mail was an isolated event in a developed democracy. I know that judges are under attack in Poland, but Poland has only relatively recently emerged from authoritarianism. However, it turns out that the US has its own problems in this regard, not all stemming from Donald Trump’s Twitter feed.

In recent days, Pennsylvania Republican lawmakers have proposed impeaching four Democratic state Supreme Court justices because they ruled that the state’s congressional map was unconstitutionally gerrymandered and must be immediately replaced. Supreme Court judges are elected in Pennsylvania, and everyone knows who are Democrats and who Republicans. The only way to remove a justice is through impeachment, and the Republicans have majorities in both state houses.

The Chief Justice of the State Supreme Court, who is a Republican and voted against the original court decision, has nevertheless attacked the threats of impeachment. The American Bar Association (ABA) has come out against the threats, saying: ‘Legislators are free to disagree with judicial rulings, but punishing judges in a partisan manner for making valid rulings is not acceptable.’

As for legal aid, the American system for the very poorest, run through the Legal Services Corporation (LSC), has faced disaster under previous threats of budget cuts from the beginning of the Trump administration. But the omnibus spending bill recently passed by Congress to avoid a government shutdown, which raised spending considerably under various headings ($1.3 trillion over 2,232 pages), increased funding for the LSC. It will now receive $410 million in 2018, an increase of $25 million over the funding level for the past two fiscal years and the highest appropriation since 2010. No wonder the ABA welcomed the measure.

Interestingly, in that same spending bill, a law was tucked away which has great significance for UK lawyers. It is called the CLOUD Act (Clarifying Lawful Overseas Use of Data). This act, welcomed by some and criticised by others, may bring an end to the Supreme Court case I wrote about recently involving Microsoft, which asks the question: does the US government have the right to access data which is stored in Microsoft’s servers in Ireland? 

It seems that the new CLOUD Act is designed to provide incentives for governments to make one-on-one agreements with the US, which will allow tech companies to honour court-approved search warrants. The Trump administration has already written to the Supreme Court, informing it that the administration intends to file a new brief addressing ‘to what extent’ the new legislation nullifies the Microsoft case.

The trends are the same. The need for us to marshal our arguments carefully against similar forces is also equally strong everywhere.