Lawslot

Marshall Grossman’s post Electing Obama, the Supreme Court and American Exceptionalism in HuffingtonPost.com is well worth reading for his take on the importance of Obama’s candidacy. I was very struck by his comments on law, and his reference to James Harrington,

“To be sure the signers of the Declaration of Independence represented the enfranchised classes of Englishmen, but they also knew the difference between a republic and a kingdom and they understood the significance of a government based on a written constitution. Writing under a pseudonym in the Boston Gazette in 1774, John Adams both asserted the English origins of the new republic and its aspiration to something different when he famously quoted the English republican theorist James Harrington’s call for an “empire of laws and not of men,” strategically substituting the word “government” for Harrington’s “empire.” We have in the last seven years seen a sustained and often successful effort to replace that government of laws with something closer to the royal prerogative against which Harrington wrote in 1656.”

In Gordon Brown’s Britain, we are inexorably moving back towards that royal prerogative. 42 days is just one more step along that journey. 

It is not just lawyers in the UK that are concerned about their professional standing (see my recent post Whither the legal profession? The same is true in  Canada.

A recent post by Jordan Furlong a little over a week ago in his blog Law 21 took me to Law Times ,

“Toronto immigration and criminal law lawyer Mary Boyce submitted the motion at the [Upper Canada] law society AGM. It states that “it is demeaning to lawyers to be treated as a class of licensee.”. . . Boyce told the meeting that she first noticed the use of the term “licensee” in her member’s annual report. “For some, it seemed to be a lowering of the bar, a demeaning of the bar,” she said. “Words matter; they are our stock and trade.”

Many lawyers at the meeting voiced their concern with the change in language. Karen Andrews said she keeps a copy of the barristers’ oath at her desk. “This is fundamental to who we are and how we practise, and now it’s gone,” she said.

A lawyer who identified herself as a provincial offences prosecutor said she’s been disturbed by a recent trend of justices of the peace referring to paralegals as “officers of the court” or “friends of the court.” “We are no longer a profession,” she said. “I think it’s a mistake.”

Like Jordan Furlong

“I’m far more interested in the language used by the lawyers to describe their concerns. What’s at play here is more significant than semantics — it’s an illustration of the visceral reactions provoked when members of a group long accustomed to exclusivity and privilege suddenly find those characteristics slipping away.”

At a dinner earlier in the week, the host (Chairman of a Business Angels Network) and I realised that we were probably the oldest two in a room of 50. It is not that we are that old (mid-50s) but that in the work we do clients and colleagues are getting younger. Law 21, one of the blogs I regularly read, has had a series of interesting posts in the past few days on the issues both of employing Generation Y and having Generation Y as clients. Law 21 is Canadian law blog, but the problems either side of the Atlantic are the same, and there is little difference in the way we approach the issues (or, as is often the case, don’t), and it is certainly not just technology but culture as well. Graduate Divas as lawyers.

A follow on to my post on The tyranny of time. Today in the FT, Megan Murphy asks whether it is Time to stop the lawyers’ clock, and cites BDO Stoy Hayward’s 2007 survey,

“According to a survey released last year by accountancy firm BDO Stoy Hayward, 97 per cent of company lawyers still use the hourly billing method when paying their external legal advisers. Yet 82 per cent of those surveyed said they believed hourly billing provided “no incentive” for those advisers to work either quickly or efficiently.”

For those of us in the corporate law market, this is not news. What struck me, however, is the fact that Herbert Smith’s expected costs for advising the government of Tajikistan on an alleged corruption dispute

“would represent 2.7 per cent of the central Asian nation’s gross domestic product, where the average monthly wage stands at a paltry $63 (£32).”

I take it that that is GDP before adding back the leakage from corruption.

A stellar panel at the University of Exeter’s symposium last Monday on A Hippocratic Oath for Lawyers: Stephen Sedley, Tony Pinching, Andrew Phillips, Andrew Holroyd (the President of the Law Society), Robin Tolson (leader of the Western Circuit), Kim Economides and an introductory paper by Julius Rocca, putting the proposition in context.

The question was raised in Kim Economides’ letter to the Times,

“Should there not be some kind of Hippocratic Oath for lawyers so that, in future, lawyers’ commitment to justice and the rule of law is more than purely rhetorical?”

An excellent event, academic and professional argument at its best, and a lot to think about; and yet, sadly, very few in the audience (and no truth in the rumour that the minute size of the wine glasses the University uses for entertainment puts people off!). Does the profession care enough? The answer it seems is not enough to want to take part in evenings such as this.

One of the delights of being away from the office on holiday is the freedom it brings from the tyranny of the chargeable hour. Nonetheless I enjoyed Michael Skapinker’s column The jury is out on family life and the law in the FT on 22 April, in which he looked mainly at what he referred to as the 50:20 ’scandal’, that 50% of law graduates are women but only about 20% of partners are female, but which began with the fees we lawyers charge, following Mr Justice Floyd’s remarks in the BlackBerry case.

Selling time is not what we should be doing, and things are changing. How quickly is another matter. The problem is that it is considerably easier to sell time than value, and when I have argued the matter with my partners (most of whom are wedded to the chargeable hour), their usual reply is that if it works, why change it. The point they are missing is that either we will have to change, or clients will change us.

But back to 50:20. Skapinker makes good points

In accounting for the failure of women lawyers to advance to partnership, I think we can largely discount sexism as a factor. No doubt there are misogynistic lawyers, and others who secretly doubt whether women can hack it, but for firms to be engaging in widespread rampant, or even subtle, discrimination would make no sense.

First, the level of attrition among women lawyers is ruinously wasteful. The cost of turning graduates into proper lawyers is high, and the 50:20 figure suggests that well over half of the expensively trained female recruits are dropping out along the way. No profit-minded law firm (and, as the BlackBerry case demonstrates, lawyers are intensely profit-minded) would deliberately fritter away investment on this scale.

Second, if some law firms were discriminating against women, others would surely have the nous to snap up these highly capable discards.

Everyone knows what the real problem is: much of law, as practised at the highest level, is incompatible with family life. The pressure to bill for thousands of hours of work, so evident in the BlackBerry case, helps see to that.

But is this all?

Add to this Susan Pinker’s argument, set out in The Sexual Paradox: Men, Women, and the Real Gender Gap, that the workplace gender gap is not the result of discrimination but of differences in brain structure, hormones, motivation, empathy and risk aversion, and choice. It may not play well with the sisters, and the argument is controversial, but the question needs to be asked.

Show me the sophisticated client, and I’ll show you the opportunity to make some more money. As I wasn’t there, perhaps it is unfair to criticise, but I remain unhappy at the continuing pressure to widen the conflict rules, ostensibly to allow the sophisticated client to make the choice to instruct the lawyer who would otherwise be conflicted. Thus, from The Lawyer.com today

Clifford Chance general counsel and chairman of the City of London Law Society rules and regulation committee Chris Perrin has called for significant widening of client conflict rules at The Lawyer’s Strategic Risk Management Conference. The City of London Law Society has made proposals, which would effectively allow clients to consent to all conflicts of interest. Perrin said: “We’ve been talking about this possible change for some time. It gives sophisticated clients who know what they’re doing freedom.”

Ethics are ethics: except it seems when money is involved. It is a slippery slope.

My favourite New Yorker cartoon is of two large, plump cats, either side of a mouse-hole. One is saying to the other, “If we were lawyers, this would be chargeable time.” It says it all. My partners have had to put up with my constant refrain, when we discuss billing strategies, that we should not be in the business of selling time, but instead should be persuading our clients to pay for value. The problem is that time cost as a measurement seems so simple, clients may not like it but are used to it, and everyone else does it, so why should we change. Well, things are changing. Front page of the FT on Monday was the report Lawyers in UK reform hourly charges. This began,

Leading London-based law firms are reforming their system of hourly charges as they come under fire from clients who feel they are paying too much at a time of soaring legal industry profits.

Leading firms told the Financial Times that they were offering alternatives to hourly rates and making more use of cost-cutting business practices, such as putting services offshore. The shift highlights growing external pressures on the legal profession to change, after a period of dramatic earnings growth achieved through expanding internationally and exploiting the corporate takeover boom.

British firms have for the most part been slower than their US counterparts to examine alternatives to hourly billing. In the US, firms have for several years been under significant pressure to reform.

All I will add is about time to. It is not enough to argue that because it is easy, it must be the right way to do it. And if this is happening in the City, how long before it reaches the rest of us?

Leaving aside the fact that in private I tend to say sorry rather too often (a failing I apparently share with the majority of Englishmen of my age and background: probably early Prep school trauma), in the world of work my early bosses were committed exponents of the “Never explain, never apologise” school. I have always tended to favour the opposite, reckoning that my clients would prefer me to put up my hands if something has gone wrong. The complicating factor, at least for lawyers, is that professional indemnity insurers have their own take on this subject (veering very much more to the somewhat more robust approach of my first employers) and equate sorry to an admission of liability. The trick is to find a way of saying sorry, meaning it and not losing cover. In yesterday’s FT there was an excellent article by Stefan Stern, Say sorry and mean it – or don’t say anything at all. In the right context, saying sorry is a very powerful statement. As Stern notes:

Genuine apologies disarm opponents, win new friends and help you hang on to old ones. In business, when necessary, bosses should apologise sincerely and quickly, or not at all.

This is certainly true of clients. The danger is saying sorry in such a way that it is quite clear you either aren’t, or worse are saying it because you have to (train managers on First Great Western). Perhaps the only thing worse is when it is a pre-recorded announcement (next time you are waiting for a late train, listen hard!). 

For a number of years I pestered my partners to consider corporate social responsibility. I prepared papers and advocated our involvement at board meetings. They were reluctant, and unless able to identify a definite return (profile raising, marketing opportunities etc.), very few initiatives got through. What they considered as simply doing good was left to individual involvement. We had a line in our corporate brochure about it, but this was in truth mere lip-service. Recently two things have occurred. First I too began to question CSR, and whether there are better ways to engage with the communities in which we live and work. When law firms involve themselves, or more usually their junior fee earners, in pro bono work (as for most lawyers in private practice this is what they think about when they do think about CSR), there usually has to be a payback somewhere. And secondly, my partners have warmed to the idea, and a recent Strategy Board minute confirmed that CSR is now on the radar. So it was with interest that I read Michael Skapinker’s column Corporate responsibility is not quite dead in yesterday’s FT.

“Is corporate social responsibility dead? Yes, says Harvard Business Review’s “Conversation Starter” blog. CSR will increasingly be seen as a public relations sham, the bloggers say.

Yes, says my colleague Stefan Stern, who recently predicted on this page that companies would abandon CSR in favour of “sustainability”.

No, says the European Commission, which commends companies that “go beyond minimum legal requirements to address societal needs” and has just spent three years and €1.4m ($2m) producing a 108-page report on CSR.

Many will regard the Commission’s endorsement as a sure sign that CSR’s time has past. Its report, written by academics from Insead and other European business schools, certainly contains a fair amount of nonsense, including the “finding” that managers become more socially responsible if they meditate. Doing yoga, according to the report, seems to produce a broadly similar result.”

Skapinker is upbeat about corporate responsibility (you need to read the whole article) and I am rethinking my position.