Death by a thousand cuts

“This is the way the world ends

Not with a bang but a whimper.”

T.S. Eliot, The Hollow Men

Trust is the very bedrock of the legal profession. It is the glue that holds the system together, the lubricant that makes all its moving parts run smoothly, and the animating spirit that engenders people’s belief in, abidance by and service to the law.

The hourly rates and revenues are all predicated on trust-based relationships.?

But what happens if, like meltwater running over sandstone, that trust is slowly eroded by the actions of erring, unscrupulous or mendacious individuals, organisations and, indeed, governments??

The erosion of trust in the rule of law starts at the very top with the conduct of our political class. I generally avoid talking politics here on LinkedIn, but when I look back at the goings-on at the heart of Government that we have witnessed in the wake of the Brexit referendum, it sends a shudder of disgust and despair down my spine – alleviated only by the hope that the recent change in mood music coming out of Downing Street will lead to a different kind of dance.

Where do I begin? With Boris Johnson illegally proroguing Parliament and lying to the Queen? With then-Northern Ireland Secretary (and later Secretary of State for Justice and Lord Chancellor) Brandon Lewis admitting that a proposed bill to amend the UK's Brexit deal with the EU broke international law, though only in a “specific and limited way”??

Or do I begin with a Government that introduced the most stringent-ever peacetime restrictions on people’s civil liberties in order to combat a global pandemic, only for it later to be revealed that numerous members of said Government had been merrily thumbing their noses at the very rules they expected the rest of us to abide by on pain of severe financial penalties??

I mean, who can ever forget the image of Queen Elizabeth II, a national symbol of what it means to do one’s duty and serve one’s country, sitting all alone in a near-empty church during the funeral of her husband – all while suitcases of wine were being wheeled into Downing Street? Remember that candid clip of Allegra Stratton letting the cat out of the bag during a mock presser? Or the story about handsy Matt “I’m only human” Hancock getting socially proximate with his aide Gina Coladangelo??

The litany goes on. There’s all that business about ‘lefty’ immigration lawyers, openly criticised by the then-Government for daring to do their job of providing asylum seekers with the legal representation they are entitled to. Or, most recently, the Sunak Government’s willingness to ignore the Supreme Court’s ruling that the Government’s Rwanda scheme was unlawful.

Each of these individual moments in which we have seen the rule of law being undermined by our political leaders represents a drip-drip-drip-feed of poison into the veins of our legal system.

When it becomes apparent to the public that there seems to be ‘one rule for them and another for us’, when the Government of the day is willing to circumvent the highest court in the land, and when politicians vociferously undermine the judiciary with accusations of political bias, it inevitably leads to wide-spread cynicism and an erosion of trust.

All of this is compounded by the fact that, in the words of the Bar Council, our criminal justice system is “at the point of structural failure”, thanks to chronic underfunding during the austerity era and beyond. This lack of investment in a crucial pillar of our legal system has seen case backlogs reach unprecedented levels, left courtrooms literally falling down and caused an exodus of criminal barristers.

It, therefore, comes as no surprise that six in ten crime victims do not feel confident that the Crown Prosecution Service is effective at prosecuting people accused of a crime, according to?a landmark victims' survey?conducted by the Victims’ Commissioner. The fact that so many people don’t believe they will see justice done should be hugely concerning to all of us and has profound implications for the rule of law in our society.

One could argue that we know about all of these things because we have a robust fourth estate, which plays a crucial role in holding our leaders to account and speaking truth to power. But here too, we have seen standards slip, as a result of their own trust-based issues but also perhaps inevitably in the wake of the digital revolution and the resulting decline of print newspapers and the loss of high-quality local journalism. By way of example, I commend this article to your attention: brilliant if slightly heartbreaking excursion into the world of court-reporting, which is a dying art.

Legal journalism focusing on commercial law, which used to be largely funded by recruiter advertising, has also taken a hit. As its former revenue stream has gradually dried up with the dawn of the digital era, the subscription model has taken over and made it increasingly difficult for journalists to hold firms’ feet to the fire. Where previously recruiters paid for journalists to hold firms and the regulator accountable, it’s now firms who, effectively, pay journalists’ wages. That was always the case to some extent, but the balance has shifted towards a model where there is inherently less accountability and stories get spiked because behind the scenes journalists get threatened by their subscribers.?

The sad truth is that, with the decline of ‘mainstream’ journalism and the rise of social media, we now live in a post-truth age where some people choose to believe whatever they want despite all evidence to the contrary. Misinformation proliferates, with dire consequences, as we saw with the riots this summer. And it surprised me not one bit that much of the extremist rhetoric being bandied about by Stephen Yaxley Lennon, aka Tommy Robinson, and his ilk echoed the divisive language routinely heard from the mouths of senior politicians in the previous Government. Stop the boats, anyone?

The social media platform formerly known as Twitter is perhaps the most obvious example of a debased marketplace of information and ideas. The plaything of a multibillionaire owner who nominally espouses free speech, X in fact seems to employ an algorithm that routinely throttles the reach of voices such as that of the Secret Barrister and other truth-speakers in favour of the whirly-eyed brigade, as the Twittersphere becomes an ever-more toxic echo chamber. It is, after all, owned by someone who publicly states that civil war is inevitable on the UK’s streets and picks fights with the Prime Minister of a country whose culture he is clearly ignorant of. No wonder so many prominent lawyers have been quitting X. You have already heard my thoughts on this.

Woooo. Big deep breath. I know that’s a whole lot of negative perspective from my usually somewhat sunnily-dispositioned self, and it really isn’t my intention to bum you all out this close to what is currently promising to be a sunny weekend by telling you that everything’s gone to hell in a handcart. The good news is that the barbarians are not quite at the gate.?

As things stand, ours is still one of the world’s two preeminent legal systems, precisely because we do have such a strong track record of keeping the powers of the executive, legislative and judiciary separate, despite all of the aforementioned examples of powerful figures working hard to undermine our reputation on the international stage.

And we do still have good, strong, investigative journalism (two good recent examples include the Panama Papers and the Guardian’s dogged pursuit of the Michelle Mone story), notwithstanding that infamous headline about our law lords being enemies of the people and the need to “crush the [Brexit] saboteurs”.

Outside of the criminal justice system, things are, therefore, not quite at breaking point. Indeed, the business of commercial law is positively flourishing. But I think it’s fair to say that when erode trust in the law, we risk losing faith in the legal sector, a huge pillar of our soft power on the international stage. I guess what I’m ultimately saying is that trust is a lot like toothpaste – it’s very difficult to get it back in once it’s been squeezed out.

The current Government certainly seems to recognise this, and is seeking to draw a line under the, shall we call it somewhat ‘bumpy’, record of the Conservatives’ 14 years in power and restore our collective trust in our system of governance which ultimately enshrines and celebrates the rule of law.?

Probity. It seems such an old-fashioned word, but it seems to me that it is much called for in light of everything I have outlined above. And it’s a word that many people associate with our former Head of Public Prosecutions and now-Prime Minister. You cannot get much further away from cakeism and talk of sunlit uplands than announcing that there are more tough times ahead before things get better – it’s a much more realistic, though far less popular, message. Time will tell if those better times arrive and include a restored public trust in the Mother of Parliaments and the UK judicial system.

Trust is hard to quantify. But it is also the basis for the huge economic success of our legal sector. Let’s work together to retain it.

The role that the SRA has to play in upholding the reputation of the legal profession

On a very much related note, this week my eye was caught by a LinkedIn post by Eloise Butterworth, Compliance Manager at Lester Aldridge:

At a time when confidence in our legal institutions is already at a low ebb, it is more important than ever that lawyers “uphold public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons”, as Eloise writes.

And yet public trust is likely to suffer when so many stories of sexual harassment, in particular, keep coming to light – here are just three recent examples, which represent the merest glimpse of the tip of the iceberg:

• High Court judge wrote love letter to junior female colleague leaving her distressed
• Trainee solicitor wins ￡110,000 sex harassment payout after male colleague said she should remove her headscarf to 'attract men'
• Linklaters partner 'banned from booze' after touching lawyer's bum

After reading Eloise’s post, I reached out to her and asked her about restoring the reputation of the profession and the role that the SRA has to play.

Could you please provide your thoughts in answer to the question you pose at the end of your post: "So where is it all going wrong?!"

“I think the idea of self-reporting in a perfect world should work well. In reality, however, I think those behaving in an unethical manner are never going to self-report. In addition, I believe that more education and training is required in respect of professional ethics.

“This needs to be given the same level of focus, importance and budget (!) as AML training. Perhaps more monitoring of firms in terms of non-material breach logs. If you aren’t picking up any non-material breaches at all then it may indicate a lack of understanding of what you are looking for.”

What are the knock-on effects for the legal profession when practitioners stray from ethical standards?

“The impact of unethical conduct spreads far and wide. For the profession, it brings us all into disrepute and overshadows the brilliant work being done by the vast majority of the sector. For the public, it undermines trust and confidence. Unethical conduct waters down the standing of the profession as these stories will always be the headline grabbers.”

?What can be done to restore trust in the legal profession?

“A multifaceted approach is going to be required to achieve this. Outstanding investigations carrying significant public and professional interest (Axiom, Post Office scandal, etc.) need to be resolved. The public, and the profession, need to see the ramifications for the lawyers who conducted themselves in an unethical manner.?

“Looking to the future – prompt action needs to be taken by the SRA. I am not of the view that unlimited fining powers for the SRA, as currently being proposed and under consultation, is going to achieve their objective. I suspect they will be introduced regardless of the outcome of the consultation (if you have a view and you haven’t responded yet – it isn’t too late!) but education and training is going to remain key.?

“The information publicly available following a rebuke or enforcement action simply isn’t detailed enough for lessons to be learnt in the vast majority of circumstances. There are always so many unanswered questions. A greater dialogue between the SRA and practitioners to really understand the root cause (or causes) of unethical conduct is going to be far more successful in the long run.?

“Not all unethical conduct is deliberate or even reckless. Some stem from a fundamental lack of understanding, poor decision making etc. Unlimited fining powers alone is not going to restore trust in the profession.”

I am very grateful to Eloise for her time. I know that this is a topic we will be returning to in future.

In other news

Law’s long hours culture an impediment to equality, diversity and inclusion?

Last week, the Law Society Gazette highlighted the findings of a study commissioned by the Legal Services Board into ‘systemic barriers’ to equality, diversity and inclusion in the legal profession. The results showed that a culture of long hours is one of several factors “that underpin the failure of EDI initiatives to make a significant impact and shift the systemic inequalities that are entrenched across the professions”.

Law firms under threat as cyber attacks increase nearly 80%

As reported in the Law Society Gazette this week, a new survey conducted by chartered accountants Lubbock Fine has found that successful cyber attacks on law firms rose by 77% in the past year to 954, up from 538 the year before. Cyber criminals apparently view law firms as prime targets for ransomware attacks or blackmail, given the sensitive nature of the information they hold.

Pinsents trials burnout alerts in the wake of partner death

The Sunday Telegraph has reported that City firm Pinsent Masons has introduced a new time-tracking system that will alert managers when employees are consistently working long hours. This forms part of a series of measures launched internally at the firm to help its lawyers manage intense workloads and reduce stress following the death of partner Vanessa Ford last year.

Junior lawyers turn recruiters? in the ongoing talent war

According to the Daily Telegraph last week, London-based junior lawyers working at US firms Paul Weiss and Kirkland & Ellis are being paid bonuses of up to $50,000 (￡38,000) when they refer friends for jobs.

Meet Jon off LinkedIn

In episode four of the TBD podcast But Is It Legal?, I talk shop with the brilliant employment lawyer, Jon Gregson. He shared his thoughts on the importance of seizing opportunities, of enjoying life outside of work, and how he came to be one of the legal industry’s most successful LinkedInfluencers.

Listen here now:

YouTube: https://lnkd.in/eNsDeKpd

Spotify: https://lnkd.in/e8Uk6PeH

Amazon Music: https://lnkd.in/eZFpsZ5u

Podbean: https://lnkd.in/eV3fEc5d )

I hope you’ve enjoyed this week’s edition! Or at least found it thought-provoking.?

Si

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