Rogue firms, interpreters, and lapses in judgement: your letters to the editor
Walk of shame
Can anyone explain to me why members of this government, such as the solicitor general Lucy Frazer QC MP, or attorney general Geoffrey Cox QC MP, took part in the recent London Legal Walk? In the words of lord chief justice Baron Burnett of Maldon, the walk looks to raise money to help litigants ‘where public funding for legal disputes is no longer available’.
Now this could not possibly be the same Frazer who defended the execrable Legal Aid, Sentencing and Punishment of Offenders Act review in April in the House of Commons, promising a miserly £6.5m of public funding to mitigate the £400m-£500m cuts in civil legal aid funding her government has inflicted? Or the Frazer who can see no conflict between the Ministry of Justice spending £4.2m on its own representation at legal inquests in 2017, while families of those who lost their lives in cases involving state agencies received Legal Aid Agency ‘exceptional case funding’ of £92,000?
Or the same Frazer who pledged in her parliamentary response to ‘examine’ the number of lawyers used by the MoJ and other state agencies, as she does not want ‘an arms race’ in an inquisitorial process? Compare the profligacy displayed by the government in shelling out for the blunders of former lord chancellor Chris Grayling, the latest example of which was the Eurotunnel litigation over ‘secret’ post-Brexit ferry contracts (£33m and counting) as the government now faces a fresh action by P&O and other ferry companies over the Eurotunnel settlement.
Some 886 teams took part in the London Legal Walk this year, raising an average of about £1,000 in sponsorship money per team. The London Legal Support Trust is a worthwhile cause and those who support it on a nice day out in central London can feel the warm glow such activity brings. But charity is no substitute for a properly funded legal aid scheme.
Participants, particularly government ministers, should not be permitted to forget what they do in their day job. No other recent government has so consistently striven to deny access to justice to people who cannot afford to pay for it or who have suffered injury at the hands of those with deep pockets. The attempts to de-lawyer disputes, the Civil Liability Act, the programme of court closures and HM Courts & Tribunal Service staff cuts, the imposition of austerity measures on councils leading to the net loss of nine law centres… only space limits the length of the list.
It seems to me that the aims of some of the walkers in their self-promoting T-shirts are inimical to the aims of the trust and they should reflect on that before taking part next time. MPs who vote these cost-cutting measures through should, frankly, be shamed into staying away, whatever high office they hold.
Retired solicitor, London
‘Illegal’ drugs: a nonsensical construct
Lawyers often need to explain legal jargon in clear everyday language, yet because legal constructs are made from precise words in particular order, sometimes we can inadvertently mislead. The example I wish to draw attention to is the use of ‘transferred epithets’ and how we can readily presume a false equivalence between common parlance and legal drafting.
A transferred epithet is a linguistic shortcut that may remove the human element of an expression and effectively attribute that quality to the object. Take for example the idea of a ‘condemned cell’. If we were to take the expression literally we would imagine that this cell had been inspected and deemed unfit for use because of some inadequacy in its design or condition. Of course, we know what the expression means: it was a cell which contained a condemned prisoner (thankfully now a thing of the past in the UK). So what is the problem? In this case and generally, absolutely nothing. Yet we are so accustomed to this form of speech that it has found its way into the very fabric of describing legal norms. I suggest that in so doing we do a great disservice to the rule of law and the status of the legal subject.
Perhaps the most ubiquitous example is the invention of ‘illegal’ drugs and their corollary, ‘legal’ drugs. Of course, no actual law or worthy legal text would ever use such a term, but they are used by lawyers, policy experts and laypeople alike. Indeed, the whole of the recent Global Commission on Drugs Report features this quasi-legal construct.
Yet there is a huge conceptual distinction between legal reality and this notion. The law specifies a list of substances with respect to which we are ‘controlled’, and employs a different transferred epithet to identify them, namely ‘controlled drugs’. Notwithstanding that many might consider this term to be an oxymoron in practice (given that the authorities seem to have lost control over ‘controlled drugs’), I simply cannot abide the replacement of this term with the nonsensical construct of ‘illegal’ drugs that side-steps the whole idea of proportionate control. The legal subject has become subsumed by the object and is now devoid of all agency regarding activities with ‘controlled drugs’. The Misuse of Drugs Act 1971 sets out a raft of regulatory provisions (see sections 7, 22 and 31) to create licences and exemptions, and yet these are ignored except for a few chosen exceptions. It is also worth noting that there is no offence pertaining to the use of ‘controlled drugs’ except for opium (section 9).
It is my contention that the misuse of language supports the prohibitionist doctrine and the current regime of administrative function beholden to the false binary between ‘legal’ and ‘illegal’ drugs, which is in essence a dehumanising, nuance-free inequality of treatment between people concerned with all potentially harmful drug-related activities.
Solicitor (currently non-practising), Leeds
Rogue firms which don’t pay up
I read with interest your 17 June article ‘Solicitor struck off for “effectively stealing” from experts and counsel’. This addressed the disciplinary hearing of a solicitor who was found guilty of failing to pay service providers (choosing instead to use the funds to prop up his firm).
That was a particular case involving a particular type of individual. Sadly, however, his business model is used by many firms. It rarely comes to light because (a) the SRA is generally not interested; (b) the legal press is reluctant to dip its toe into such a dull topic; (c) the unpaid service providers are unwilling to put their heads over the parapet, because they might be seen as consequently toxic by firms which have a policy of not paying their debts; and (d) when service providers sue solicitors for unpaid fees, those cases rarely reach a high enough court to be reported.
Most solicitors pay well and on time, but there are exceptions. These firms use their size, power, knowledge of the system and reputation to wear down opponents (their opponents being service providers who have merely undertaken work at their behest and simply want payment for their service).
As a service provider who has had to deal with this type of firm, I can give many examples of the spurious defences I have seen. Fortunately, with a background in commercial debt recovery, I tend not to be too troubled by the evaders. However, other service providers will be unwilling to start a David and Goliath battle.
One such firm owed us several thousand pounds. It had been paid our fees in numerous cases (our fees having been claimed as a disbursement in the bill which was paid by the Legal Services Commission), but the fees (£20,000) were not passed on to us. When the debt was overdue by 12 months we called the firm up and spoke to SRA interveners. They informed us that the proprietor of the debtor firm had been sent to jail for defrauding a group of disabled people out of their life savings. This thoroughly dishonest individual will have sat in jail waiting for his release date to come, safe in the knowledge that he would have a fresh start in the not too distant future. Not so I’m afraid – within days of his release we served him with a statutory demand notice shortly followed with a bankruptcy petition, followed by charging order and sale proceedings. That was as much as we could do. We wanted to use the full extent of the law to ensure that his plans for a fresh start were as derailed as we could make them. We knew that we would never recover the monies he had stolen but at least his victims were not having to witness him start up in business again.
Certain law firms believe that it is their right to not pay service providers. Having worked in law firms I know that some senior staff consider it normal to try to chip away at counsel fees at the end of the case purely to enhance the firm’s profit costs. It is highly unlikely that any chambers will report on this but it happens. Regularly.
Another debt which seems the norm for rogue firms to avoid is tax. I frequently read cases where HMRC is a major creditor in a law firm which has gone to the wall. When did solicitors decide that they do not have a duty to pay taxes ? It is all very well reading reports of ‘Solicitors firm closes because of LASPO’, but actually all law firms had to go through LASPO and most of them paid their taxes and survived. I have zero sympathy for the members of law firms who drain money from their firms regardless of the commercial climate to the detriment of their staff, service providers and HMRC.
As a director in a legal service provider firm, I am all too aware that there are many rogue firms out there. Fortunately, we no longer act for any of them. All of our current instructions come from firms who have the welcome policy of paying for the services which they commission.
Guy Platt-Higgins LLB (Hons)
Managing director, Law Costing Ltd, Birkenhead
Choose your interpreters carefully
There have been recent articles focusing on some of the issues faced in ensuring effective interpreting services are delivered in the courts.
Notwithstanding the concerns raised about the standards of interpreting when unqualified or inexperienced interpreters are engaged, one of the problems identified was the sourcing of effective interpreters in a timely manner.
Given interpreters play such a vital role in the legal process, those used by the courts should be highly qualified, well experienced and have the requisite skills to enable effective communication. With the National Register of Public Service Interpreters (NRPSI) celebrating its 25th anniversary this year, practitioners in the courts should by now as a matter of course be insisting on equally professional, accredited and ethically-bound language services support.
This is something that they can rely on when working with NRPSI registrants, who voluntarily ensure they follow the high professional standards set out in NRPSI’s publicly available code of conduct.
When next you face an interpreter in court, ask if they are an NRPSI registrant and to see their NRPSI photo ID card. You can easily find a registered interpreter for the task in hand via the online and free-to-search national register.
National Register of Public Service Interpreters
Lapse in judgement
Your daily news update of 10 June contains an article on a trainee solicitor, Louise Bolderstone, barred for life for faking a lost share certificate.
There is no suggestion in the article or in the decision notice that anyone lost out from what was probably a moment of panic in the course of a transaction by a trainee.
Is it, in principle, any different from the creation of minutes of private company meetings which never actually took place, of directors’ meetings, which also never actually took place, so that the books were right? Those minutes were typically created by solicitors and accountants. If the share certificate in the Bolderstone case did nothing more than certify a share which in fact was owned by the person named therein, then this seems to be a lapse of judgement by a young trainee rather than dishonesty, and should deserve nothing more than a reprimand (if that).