Letters roundup - 21 October 2019

Time to enter the 21st century

It is possible to distinguish the two SRA disciplinary cases described in the article by Gregory Treverton-Jones QC. 

In the red corner, the solicitor who was found by a tribunal to have unlawfully and summarily sacked his children’s nanny when she was pregnant and did not self-report this fact: complaint upheld. In the blue corner, the 50-year-old equity partner who may or may not have shared colourful extra-curricular activities with a junior colleague: no reliable evidence, case closed. 

This is comparing apples with pears, but at the risk of other chickens coming home to roost it might be argued that the public expect officers of the court to uphold the law. 

Another revolutionary suggestion for some members of the profession would be to enter the 21st century and refrain from treating colleagues as office totty or women as pregnant inconveniences.  

Angelo Micciche
Plymouth

How local law societies can show their worth

What precisely is the point of local law societies, solicitors sometimes ask. Answers  are not always as fulsome as they could be. 

Let me make a modest proposal: imitate the estimable Bournemouth & District Law Society in producing a Register of Restrictive Covenants, which conveniently lists the likely current holder of the benefit of any restrictive covenants, where such covenants were once in the benefit of major landowners and other similar estates. 

Naturally, this is likely to be less feasible in highly urbanised areas, where there has been a great deal of buying and selling. Nonetheless, on a recent transaction I had cause to be involved with, this list enabled me to understand the merits of a unity of seisin defence to an old covenant. 

Local law societies are ideally placed to draw on their professional networks to put and keep in good repair such a register. The entire conveyancing profession would thank them for it. They might even send in their membership renewal fees less reluctantly. 

Daniel Andersson
London SE1

Going head to head on legal expenses insurance

I was interested by consumer advocate Matthew Maxwell Scott’s defence of the legal expenses insurance (LEI) market in reply to my recent article on the topic for the Gazette’s website. I do, however, take issue with some of what he says. First, he cites Financial Ombudsman Service data – that 2% of all insurance complaints are LEI-related– in support of his contention that the market is operating well. Leaving aside the fact that many now do not bother to complain to the FOS and instead work around LEI obstacles (see below), and other complaints will go to the SRA, figures quoted in a recent Sunday Times report show that in 2017/18 the FOS received 660 complaints related to LEI, and 560 in the nine months to January 2019. Around 30% of those were upheld. I am surprised that a consumer advocate would take comfort from this. 

His confidence in the operation of the market is also at odds with his assertion that it is ‘critical’ that steps are taken to ensure BTE is ‘trusted by consumers’ and ‘serves to protect them properly’. 

I am left similarly confused by his assertion that he does not agree with my conclusions. I finished by calling for reform. He concluded with a very welcome plan to look at widening access to LEI indemnity where a consumer has expressed a strong desire to use a firm that is geographically proximate, and which complies with strict standards. I hope he pursues this with the same vigour as he does his defence of the LEI market. 

One of the principal obstacles to his plan is the desire of some LEI providers to leverage access to their panel. Fundamental to this arrangement is the insurer’s complicity in the curtailment of freedom of choice, to the benefit of the panel lawyer but not necessarily the consumer. 

He wrongly characterises my argument by referencing the commercial incentive of the law firm in retaining the client. At its heart, this is about whether or not a client can claim the benefit of a product they have purchased and accept a recommendation in choosing their own lawyer. In all cases in which I act where freedom of choice is inhibited by the insurer, my client is given advice that they can choose the panel lawyer and claim on the policy, or instruct me and I will arrange ATE. 

As, in the overwhelming majority of cases, I do not charge success fees, the only detriment is the price of the replacement cover. The clients have always chosen to incur the cost of ATE. I would have thought that this, together with the practice of wrongful repudiation of indemnity (which Mr Maxwell Scott did not address) would have been the issues of most concern to a consumer advocate. 

Richard Edwards
Partner, Potter Rees Dolan, Manchester

Lame message

Thank you for your reports on the SDT trial of now-former Freshfields Bruckhaus Deringer partner Ryan Beckwith. Attention now turns to the response of firms and the profession to the issue of sexual harassment. In this I am not encouraged by the bland and impersonal statement Freshfields issued after the judgment: ‘The firm takes all complaints extremely seriously. We want a culture that is welcoming and allows our people to flourish, and we work hard to achieve that. We are running a firm-wide programme to ensure our values and behaviours are consistently experienced across the firm, and I am confident that we will continue to achieve change where it is needed.’ 

The statement also lacked an emotional connection to what had unfolded. I have taken the liberty of rewriting this. I and many others who want to see the profession improve its response to the sort of conduct described during this trial would have found the following more reassuring: ‘We were very sorry to hear of today’s SDT ruling and we take the matter seriously. We have a no-tolerance approach to these issues and something clearly went wrong in this instance. We will take as many steps possible to ensure that our people have a positive and productive working environment, and we will not tolerate inappropriate conduct.’ 

Woman lawyer
City office, US firm