Peter S Hughes, Hughes & Company, Tring I write to comment on Michael R Moore’s letter about referral fees. I qualified in 1976 and can relate to and empathise with all that he recounts – with the exception of his final paragraph. My firm has always refused to accept or pay referral fees. In my mind, to do so wholly compromises the independence and integrity of the profession. I was appalled when the Law Society first approved the practice and I have fought against it ever since. Yes, my firm has lost introductions from local estate agents and others who worship on the ‘altar of profit’. Few of my clients who have followed their recommendations have had the appetite to repeat the process and have returned to the fold. My response has always been to refuse to make introductions to those who will introduce work only upon the payment of a ‘bung’. My clients know that my firm has always jealously protected its independence and will act only in its clients’ best interests, and will not accept or pay financial or other inducements. We rely entirely on our reputation, the quality of our service and upon recommendation. While my firm does not aspire to Lexcel accreditation, we do keep a register of ‘approved suppliers’ and will only recommend those who have similar ‘professional standards’. Despite the apparent disadvantage of ‘fighting with one hand tied behind our back’ as suggested by Mr Moore, we have turned this apparent disadvantage to our benefit by gaining the reputation of being one of the few firms (if not the only one) in the locality with unquestionable integrity and independence. As a result, our practice proudly flourishes. I delight in the fact that our regulators appear, at last, to be discharging their duties of seeking to protect the integrity and independence of the profession.
Stephen Hanson, Mansfield I fully endorse Trevor F Moore’s comments (see  Gazette, 3 December, 11), with regard to the pointlessness of being a solicitor. I decided on a career change in the mid-90s, went to university, studied hard for three years before another year of study for the legal practice diploma, all at great cost and very difficult to achieve with a young family to support. Then it was two years of the training contract and being told to work on files and conclude matters that no one else in the practice could be bothered with. The rewards? A modest salary, plenty of stress, and this year – after eight years of practice – being made redundant in favour of an unqualified conveyancing clerk. I am still out of work, and like many other conveyancing solicitors in a similar position find that firms either ignore applications for employment, or are simply looking to save money and recruit paralegals, legal executives or clerks to do the conveyancing. In 1997, this government, ironically made up of many lawyers, started the downward spiral of the profession. We are now over-regulated and forced to compete with other institutions. Furthermore, it is only a matter of time before the public will be able to obtain legal services at the supermarket with their weekly shop, thus further eroding the integrity and independence of the profession.
There is another big and complex problem that needs to be dealt with as the legal services market continues to change. Simply put, most clients, the general public and and small- and medium-sized enterprises, don’t know the difference between solicitors, lawyers, barristers and other qualified or non-qualified providers of legal services.The recent Ministry of Justice research Baseline survey to assess the impact of legal services reform provides strong evidence of this lack of understanding in the buyers of legal services. This confusion will hand a significant competitive advantage to any organisation that is willing to take advantage of it. The relaxation of barristers’ regulations can only complicate things further as legally qualified people of various types vie for the attention of clients by promoting their own type of legal solution. It appears to me as if the legal services industry is reorganising the deckchairs on its own Titanic. No one knows clearly where the ship is going and haven’t seen or can’t see the iceberg, faster ships and jet planes. OMG. ‘We are all going to drown!’ To cut through this lack of comprehension of the demand side of the market, we need to consider where is the benefit to the client of having a choice of lawyer types. That’s a benefit you can convey simply, as opposed to explaining the structure of the legal services industry. Benefits fall into a mixture of two types. Does the benefit save the client time/money/effort? Does it make them feel more secure, protected, happy – or even smug. It helps to split the benefits into three levels – why see a solicitor, why use your firm and why buy a particular service or solution. The conclusion from this analysis in your firm has then to be regularly and imaginatively presented to the clients you want in the future, through whatever medium suits your clients best. The research, and Marketlaw’s experience, show that if you tell your clients the value to them of what you can do, they won’t feel the need to understand if any other type of lawyer can help them.
The next government must provide injured workers with enhanced access to compensation, the Association of Personal Injury Lawyers (APIL) said as a government consultation, Accessing Compensation, closed today. APIL urged the incoming government to ensure that plans laid down by the Department for Work and Pensions (DWP), to create an Employers’ Liability Tracing Office (ELTO) and Employers’ Liability Insurance Bureau (ELIB), are followed. In February, the DWP launched a consultation on creating the ELTO, which will manage an electronic database of employers’ liability insurance policies, and the ELIB, a compensation fund of last resort. APIL president Muiris Lyons said: ‘All employees have the right to go to work and come home unharmed. But, when they are injured or made ill by their employers, they must be able to claim fair compensation for their injuries. ‘To do this, they need to be able to trace the insurers of their employers, but in too many cases, particularly when the employer has gone out of business, this cannot be done, either because policy information has not been properly preserved or because the current tracing system, administered by the [Association of British Insurers] just does not work. ‘We have a similar system in place for the millions of drivers on our roads. There is no excuse for failing to treat workers in the same way. ‘Many of the worst-affected people have asbestos-related diseases and die without receiving the compensation which could provide some comfort in their last months of life.’ Currently, people who cannot trace the insurer of their current or past employer cannot obtain compensation for workplace injuries. Insurers run a voluntary tracing service, but 3,210 people remained uncompensated in 2008, the DWP said.
Robert Bourns is senior partner at national law firm TLT Visit the Gazette’s blogs page for more In Business blogs A strong feature of 2010 was the growing debate about legal process outsourcing (LPO), offshoring and commoditising. To some practitioners this is anathema: a deskilling and cheapening of the practice of law. Others see it, more positively, as a separation of the repetitive, low value and boring work, allowing lawyers to apply their minds and time to complex, stimulating and more satisfying work which will command higher fees. Practitioners are right to reflect on the issues of separation and the value clients attach to the work undertaken. Many years ago we were invited to consider the effect of the ‘3Es’ – Expertise, Experience and Efficiency – on how we practise. Reflection on this may avoid practitioners placing demarcation lines between areas of work in the wrong place or assuming that they are fixed. The ‘3Es’ describe the way we do things, rather than categorising the work itself. They apply to all work however defined, whether complex advisory or volume and impact in different proportions from time to time. The first attempt at a complex transaction will require significant intellectual expertise to ensure all aspects, commercial, corporate and regulatory are dealt with appropriately and thoroughly to protect the client’s interest. Subsequent transactions can be dealt with more quickly and with greater confidence as practitioners capitalise on their earlier experience. Over time they can be expected to apply their expertise and experience to deal with cases more efficiently and, therefore, more economically. Certain elements of the transaction can be dealt with by less highly qualified personnel, reducing cost and freeing more experienced personnel to move on to other transactions. This is nothing new: it’s a method of production that has been the backbone of the traditional law firm structure for years. The process is inexorable and common to all services and sectors. The use of technology and the opportunity to relocate operations to other jurisdictions quickens the pace and rewards for those who take advantage, and increases the risk of failure by those who can’t or won’t. It underlies the client’s push for value. They see the benefits of efficiency in their own businesses and believe the legal services sector is susceptible to the same opportunities. Those preparing to invest in the provision of legal services will demonstrate the point. Practitioners who separate ‘low value’ work, but otherwise carry on as before, will remain vulnerable as they may be inclined to think that they have done what needs to be done. Fundamentally, there is a need to recognise not only the expertise in extracting maximum benefit from the experience of able lawyers, but also the real expertise required to manage and supervise the work carried on within a firm. This is an expertise that many lawyers do not have and are too often inclined to dismiss. Historically, many complaints and claims against solicitors can be attributed to failures in supervision. Firms that attempt to create a leaner structure, forcing work to ‘an appropriate level’ and/or to operate at greater volumes, must ensure that work is undertaken by appropriately qualified/trained people, operating robust systems, that are properly supervised. There is real expertise in this, which must be recognised if client matters are to be carried out effectively and profitably. Many principles of outcomes-focused regulation require this. Those who accept the effect of the ‘3Es’ will recognise that the proportion of each element required in any piece of work or area of practice will alter from time to time, as experience and client expectation push for ever greater efficiency or other changes require a rebalancing. For example, a change in legislation, regulation or practice will require the reintroduction of the technical skills of a highly qualified lawyer to review process, practices and procedures (as well as to provide training to those involved day-to-day) but, having done so, the technical expertise in terms of personnel can be withdrawn and applied to other more complex work, allowing the expertise of effective supervision and work management to carry on, providing benefit to the client and firm. In short, successful legal service providers (whether existing firms or new entrants) are entitled to take the benefits of their expertise and experience, including their expertise in effective work management and supervision.
A Cheshire solicitor has launched a website giving legal advice over the internet to members of the public, who can decide how much they want to pay for it. The site, www.expert-answers.co.uk, was created by property partner James Mather at Ellesmere Port firm Berkson Wallace. The website uses a panel of 30 legally qualified advisers including barristers, solicitors and legal executives, who can answer questions on any area of law. A user submits a question and states the price they are willing to pay for the answer. The question is sent to the panel members, and the first one able to respond sends the answer to a secure and confidential area on the website that can be accessed by the questioner. The price paid for advice ranges from £10 to a maximum of £150. Half the fee goes to the adviser, and the other 50% is retained by the site. Mather said: ‘With legal aid disappearing and citizens advice bureaux closing, it is becoming harder to get legal advice. Expert Answers bridges the gap between those who are eligible for legal aid and those who can afford to pay high street prices for legal advice.’ He added: ‘We don’t aim to take work away from solicitors, but to take the work they aren’t interested in.’
‘Is X a good judge?’ one lawyer asked another. There was a pause while the second lawyer weighed his words. ‘There are only good judges and better judges,’ he replied at last. ‘And yes, X is a good judge.’ That example of damning with faint praise comes with the compliments of Sir Konrad Schiemann, a judge at the European Court of Justice (ECJ). He had already described himself as an ‘innocent’ who, on the day he arrived in the UK to deliver the present lecture, was ‘shocked by the political maelstrom’ that was then raging in our parliament and media. The ‘maelstrom’ had been sparked by a diktat from the European Court of Human Rights (ECtHR) telling the UK government to comply with its ruling that prisoners should be allowed to vote in elections. Failure to comply would result in massive fines. Senior politicians, Schiemann was aghast to note, were openly discussing paying the fine rather than obeying a diktat from a court to which the UK had willingly signed up. More extreme still, some were urging the UK’s withdrawal from the European Convention on Human Rights (the Convention) and, by extension, from the European Union (EU) itself. Much of Schiemann’s lecture, ‘The European Union and human rights – Where are we going?’, argued that any such withdrawal would be detrimental both to this country and to the wider world. It convinced me, at least, that he fell into the ‘better’ category of judge. He started by warning his audience that single-mindedly electing to do ‘what’s best for the UK’ is not far distant from doing ‘what’s best for me’, and none of us likes the person – or nation – who always looks after number one to the detriment of others. That was why his role at the ECJ was not to represent the UK, but to do what was best for the EU. He said: ‘That’s easy because what’s good for the broader world is good for everyone. ‘It’s better for us all, for example, that Germany and France have been at peace for the last 65 years rather than going to war at 20 year intervals.’ It was a small sacrifice, he argued, to accept ECtHR rulings that were sometimes unpalatable to the national psyche if the reward was so obviously desirable. Why else submit to this court based in far off Strasbourg? Because every country, Schiemann said, the UK included, occasionally feels compelled to act in a way that it naturally abhors. We condoned the torture of terror suspects, for instance, not to mention detention without trial, extraordinary rendition, telephone tapping, control orders and all sort of barbarous things that we associate with countries where the rule of law does not prevail. Our politicians justified this by saying the security forces needed extraordinary powers to meet an extraordinary emergency. The ECtHR, on the other hand, has the impartiality and distance to remind us that ‘laws should speak the same language in war or peace’, Schiemann said. Why else continue to throw in our lot with the ECtHR? Because, Schiemann said, we have an ‘honourable part’ to play in helping countries without our proud tradition of civil liberties to embrace the Convention and all its advantages. And because the more countries that accept the jurisdiction of the ECtHR, the fewer fingernails are going to be wrenched out by secret policemen, he added. The people of the UK have no problem with the various articles of the Convention – none would argue with the right to life, for instance, and we are notorious advocates of free speech. Our problem is the way the court – and its judges – interprets and applies these rights. Schiemann said: ‘Political sensitivities will raise hackles in one country and be acceptable in another.’ Politicians of a dissenting state are left with a range of choices, he said. They can take the view that it is they, not the judges’ decision, that is wrong and comply with the court. Or they can deplore the decision, but opt to live with it to show solidarity with the other member states. Or they can just ignore Strasbourg, which as things stand is illegal. Until politicians alter the law, then they and the rest of us should obey it, Schiemann said. Schiemann concluded by warning against any withdrawal from the Convention. This would entail withdrawing from the Council of Europe and, because all members of the EU are also members of the Council of Europe, withdrawal from the EU. ‘Is the dissolution of the EU good for the wider world?’ he asked. ’I may one day be called upon to decide that in court, so for today I’ll say no more.’ Sir Konrad Schiemann was speaking at the inaugural lecture for City University’s Institute for the Study of European Laws earlier this week. Join the Law Society Gazette Human Rights LinkedIn sub-group.
The launch of the Quality Assurance Scheme for Advocates (QASA) has been delayed and the consultation on its design extended, the Joint Advocacy Group (JAG) announced today. The JAG, set up with representatives of the Solicitors Regulation Authority, the Bar Standards Board and ILEX Professional Services to design the scheme, said QASA is being ‘reconsidered in the light of issues being raises in the consultation period’. A consultation on the scheme to assess publicly funded criminal defence advocates was due to close today (7 October), but has been extended to 7 November. The JAG has indicated that there are likely to be adjustments made to ensure no ‘unintended consequences’. This is likely to mean that its implementation, scheduled for December, will be postponed. A JAG spokesman said: ‘We remain very committed to the introduction of a single set of standards for criminal advocates as soon as possible, but our priority is to develop a scheme which protects the public interest, while being both proportionate and consistent.’ He said: ‘A number of valid issues on how the scheme can operate most effectively have been raised during the consultation period. As responsible, public interest regulators, we must take the time needed to look at these in more detail, to ensure that the scheme meets our public interest objectives.’ Bodies representing solicitors welcomed the decision. Law Society chief executive Desmond Hudson said: ‘The Law Society has never been against the principle of a proportionate and balanced quality assurance of advocacy scheme. We believe that, properly implemented, it could provide an important opportunity for solicitor advocates to demonstrate their skills and for the public to identify the best advocates. ‘However, the proposal from the JAG had significant flaws to the extent that it could cause serious and unnecessary damage to the practices of many competent solicitors and to the administration of justice.’ Jo Cooper, chair of the Solicitors Association of Higher Court Advocates said: ‘This is a common sense move. It gives us some hope for the development of the scheme. A moratorium will give all the stakeholders time to look again at the aims originally set out by the Legal Services Board, and try to generate a new consensus about how those aims can be put into effect rigorously but fairly.’ Cooper said the structures put in place to set up the scheme had created problems. ‘The JAG has become dominated by the bar who have sent their key players into bat, whereas the SRA representation is underweight.’ He said there is also ‘ambiguity’ about the role of the advisory group chaired by Lord Justice Thomas. ‘Neither group has invested in research to identify the real needs of regulation and the scheme that has been allowed to develop has been fuelled by myth and self-interest.’ However he said: ‘There are sensible voices on all sides of the debate and this is an opportunity for a new dialogue – and hopefully a genuine consensus around a more sensible scheme.’ Max Hill QC, chair of the Criminal Bar Asscoaition said: ‘The CBA welcomes the joint announcement by the regulators extending the current consultation period to 7 November 2011. Recent events have shown that there remain important issues for discussion within the draft QASA scheme. ‘Where professional livelihoods are at stake, these matters cannot be rushed.’
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