Uncontested Professionalism: Phoney Turf Wars and the Myth of Holism

This paper considers the ways in which members of the public present problems to advice agencies and solicitors' firms. It looks, in particular, at the incidence and management of clients with problem clusters; that is, clients with more than one problem that crosses more than one area of practice to see how well those problems are resolved. It shows that multiple problems are common, and are only partially recognised by the advisers that deal with those clients. Furthermore, whilst lip-service is paid to the idea of holistic service in both policy literature and professional propaganda, it is an idea which is more honoured in the breach than in practice. Whilst this research exposes the idea that solicitors are not holistic, whereas nonlawyers are holistic, as something of a phoney war; it also emphasises the important intersectionality between legal and social problems which poses a number of interesting dilemmas to for access to justice policy. The idea of intersectionality is that legal and non-legal problems interact causally (creating more problems) and on the capacity of clients (literally wearing them down and reducing their capacity to cope with and solve problems). How far should legal service models adapt to that intersectionality? Should non-legal problems be dealt with alongside non-legal problems? What skills and service models are best placed to meet such needs

Corporate Lawyers: values, institutional logics and ethics

Corporate Scandals involving the misconduct of private practitioners and in-house lawyers appear increasingly prevalent - is the apparent flawed institutional logic the result of a shift in professional ethics and values

False friends? Testing commercial lawyers on the claim that zealous advocacy is founded in benevolence towards clients rather than lawyers' personal interest

Commercial lawyers often signal that ‘client first’ is an essential element of their professional DNA, and some scholarly proponents have laid claim to a moral justification for zeal. That moral justification is found, in particular, in the notion of lawyers as friends. One critique of zeal is that this moral claim is bogus: that ‘client first’ is a convenient trope for disguised self-interest. This paper explores the empirical validity of this ‘client first’ ideal through a value-based analysis of zeal in lawyering. Our data suggest plausible differences in ethical decision-making related to those values. The data are consistent with more zealous lawyers having stronger self-interested rather than client-interested motivations. More zealous lawyers are also less constrained by valuing conformity to rules. If our results are valid, they suggest that the claim that zeal is motivated by placing a high value on the interests of the client is false

Independent Review, Miscarriages of Justice, and Computer Evidence: Brian Altman KC’s General Review and the Post Office Scandal

The Altman General Review (General Review)2links the discovery that the Post Office Limited (PO) had prosecuted sub-postmasters and sub-postmistresses on the basis of partial, unreliable evidence; the Clarke Advice (Simon Clarke, Barrister);3the subsequent Swift Review (Jonathan Swift KC); and the conduct of the Bates litigation and the Hamilton appeals.4The Altman General Review is an important, perhaps central, document in the PO Scandal. It was a review prompted by the discovery of unreliable expert evidence on an unreliable software system in 2013 that had been relied on to prosecute hundreds of sub-postmasters. That discovery led to a review of prosecutions that had been conducted for the Post Office by Cartwright King. This review (the CK Sift) was also conducted by Cartwright King. Brian Altman was instructed to conduct a review of that review (the General Review).In spite of that discovery, the Post Office continued to deny, including to Parliament in 2015, that there was any evidence of miscarriages of justice until appearing before the Court of Appeal in 2020/21. Those denials were founded in significant part on Altman’s and related work. He told the PO the review of prosecutions being conducted by their solicitors, Cartwright King, was fundamentally sound; this paper looks at the quality of the judgments arrived at to come to that conclusion

Agency over Technocracy - How Lawyer Archetypes Infect Regulatory Approaches

In this article, we look at the contested role of in-house lawyers in regulated organisations in the financial sector. A recent Financial Conduct Authority consultation on whether to designate the head of legal of banks, insurance companies and other financial firms as ‘Senior Managers’ and the decision which flowed from it, reflected a flawed view of lawyers as a neutral technocracy of mere legal technicians; we show how the FCA’s decision is potentially damaging to the public interest and failed to take into account that in-house lawyers are often important decision-makers and influencers within their organisations. We put the case for an alternative view; that in-house lawyers are professionals, with agency that requires them to act in accordance with ethical norms and means they should be made more accountable for their conduct

Quality assurance for advocates

This is the final report of a pilot study and evaluation of a mechanism for assessing the quality of criminal defence advocates acting under legal aid

Lawyer specialisation - managing the professional paradox

Specialisation within professions poses some interesting questions that go to the heart of the professional project. Does specialisation undermine the value, rationale even, of the general professional qualification? Or is it a vehicle for intra-professional closure, a means of strengthening the competitive hand of the 'elite'? From the consumer perspective, is specialisation an unalloyed good? Is the way in which the legal professions manage specialisation consistent with them protecting the public or the professions’ interests? Utilising empirical data for a series of projects on legal aid programmes in the UK, this paper will examine the tensions between quality and access inherent in the notion of specialisation and consider some of the implications for professional theory and regulation. It will be argued that specialisation, which is a necessary trade-off between consumer interest and detriment, has been resolved by the profession in its own rather than the public’s interest

The ethical identity of law students

This paper uses measures of values, moral outlook and professional identity to explore the ethical and professional identity of law students. We do so in two jurisdictions, surveying 441 students studying in England and Wales and 569 students studying in the US. The survey covers the first and final years of an undergraduate law degree and the postgraduate vocational stage in England and Wales, as well as students in all years of the JD programme in the US. We explore whether law students towards the end of their legal education have ethical identities predictive of less ethical conduct than those at the beginning of their legal education; whether law students intending careers in business law have values and profiles consistent with less ethical conduct than those intending to work for government or individuals; and what factors might explain these differences in ethical outlook. Our findings suggest that ethical identity is strongly associated with gender and career intentions. They also suggest weaker moral identities for students intending to practice business law. Ultimately, our findings support a conclusion that is more nuanced than the predominant theses about the impact of legal education on student ethicality which tend to suggest legal education diminishes ethicality

A trouble shared: legal problems clusters in solicitors' and advice agencies

The study examines whether and how clients of 12 solicitor firms and advice agencies present with multiple problems (clusters) and how these problems are dealt with. A mixture of solicitors, Citizens Advice Bureaux (CABx), law centres/specialist advice agencies and local authority providers were considered. We decided to focus on three main areas of social welfare law where clusters were particularly likely to occur: housing, benefits and debt. The organisations were located in London and a range of locations across South Wales and South West England. The research utilised a multi-method approach including: structured observation of 178 interviews between advisers and clients; structured interviews with advisers on 487 additional cases; and 35 semi-structured interviews with advisers about clients with multiple problems and surrounding service-delivery issues. We interviewed 58 clients about their experiences shortly after the interview, a further 36 of these clients were re-interviewed about their cases three or four months after the interview to get a stronger sense of how their cases had developed. Two workshops were held with advisers and stakeholders to discuss interim research findings. The main findings of the research are as follows: - Within the agencies we observed and in casework carried out by those agencies, clusters of problems crossing specialist boundaries presented for about 40-50% of clients. - The most common clusters we saw were around housing, benefits and debt and relationship breakdown. As important as the clusters themselves, however, was the tendency for a broad range of different problems to occur for clients in unpredictable ways. Problems that involved relationship breakdown/children, home ownership, mental health, domestic violence, employment and homelessness problems gave rise to the most complex, and arguably the most serious, problems. - Analysis of the observation and client interview data suggests that most problems within clusters interrelate and would benefit from a degree of coordinated management. Certain clients suffer from more problems because their problems are linked but also because these clients are amongst the most vulnerable in society. These clients' legal and social needs are complex and intersectional: their social and legal problems interrelate and amplify. Here the need for co-ordinated management of solutions to justiciable, and other, problems is strong. - There is evidence that justiciable problems cause, or are accompanied by, considerable stress, anxiety, and physical and mental health problems leaving clients with little energy for solving their problems. - As well as any outcome benefits from the specific problem being solved, advice, help and representation typically leave the client feeling more informed and calmer with reported reductions in stress levels and associated health problems. - The report identified a number of triggers for legal need, with the most common cause of advice seeking being the action or inaction of the local authority. Of the clients we observed, 37% had problems with local authorities. - Clusters usually presented explicitly, as part of the main issue the client raised initially with their adviser. However, about 12% of problems were raised implicitly, either through pro-active questioning by the adviser or being picked up through general dialogue with the client about the 'main' problem. Adviser interviewing skills played a part in this: those assessed as better interviewers on certain criteria exposed more complex problems. - A particularly important area is the extent to which advisers failed to expose the true extent of clients' problems during interview. Of the clients we followed up in interview, 29 out of 58 had some additional problems that had not been dealt with in the interviews. These were generally significant problems and about half were linked to their presenting problem(s) in some way (and so might more obviously give rise to a criticism of the adviser for failing to identify them). Analysis of our data suggests the structure and organisation of advisers may make a difference to whether and how a client presents multiple problems. - Advisers, when faced with problems outside their expertise, were often not dealing with them 'seamlessly', particularly when a specialist's own organisation lacked specialist skills in the problem presented by the client. - Practitioners' understandings of holistic provision appeared to be confined to notions such as putting the client's problems in context and trying, with mixed success, to ensure that clients can be signposted to appropriate providers when the initial adviser cannot deal with a particular problem. Broader notions of holistic practice, such as tackling social as well as legal problems, were not accorded much attention by the practitioners to whom we spoke. - Barriers to holistic provision include funding arrangements, organisational capacities and skills, information deficits and other barriers to joint working. - Several advisers articulated that they felt that empowering clients was an important element of effective advice giving. The research highlights that whilst sometimes this worked well, and gave clients the confidence and information necessary to take more control of their own lives, often it did not. Clients were confused by the instructions they were given and left problems to fester or escalate as a result. Clients coping with years of social exclusion or dramatic worsening in their health or lifestyle and poor levels of educational attainment and self-esteem are often ill-equipped to deal with complex bureaucracies or hostile opponents. Meeting the multiple needs of vulnerable people is a challenging agenda for the public sector. Many public services are seeking to address service users' multiple needs, improve user experience, protect vulnerable people and provide service efficiency through the reconfiguration of services to make services seamless from the point of view of the user. Different models of seamless and holistic services are being developed within the public sector. Responses to the findings of this research may be able to draw on the emerging models and lessons available