Holidays or Clients or Money?

Holidays are problematical. They are definitely a Good Thing. So how come they often have a downside, which can outweigh their benefits?

Back in 1984 I went on holiday for a month, and I am convinced that I am still suffering the after effects even now. The holiday to Australia was fantastic, unforgettable and great fun. The locum I employed was well qualified, if a bit doddery, and he was able to live in the house as well as run the office. It looked like a good scheme. When I got back he had done nothing except hold the fort. Nothing had progressed unless it urgently had to do so and he had not delivered any bills at all. I always reckoned that the holiday cost me £10,000 GBP, as well as the actual cost of the journeys etc,, which in those days was a fortune. Having said that he was not as unusual as one locum I heard of recently who took it upon himself to take away a leaking sink and replace it with one which did not fit at all ( and still leaked)!

My holiday in June (which feels like months ago already) was very good. I love CenterParcs and we had a good time. But coming home has been hard work. I am as busy as I have ever been, if not busier. There have been problems with conveyancing; new cases have been appearing like magic and old cases are coming to fruition at last. And I have had to try to catch up for the mere week I spent away from the office.

It has taken until now to be able to get to grips with the Newswire - clients have got to take priority over everything else, no matter how much fun.
That was why my 1984 holiday was so expensive and traumatising - I had to take steps to make sure that my clients did not suffer while I had fun. My bottom line suffered instead.

That is the whole ethos of our profession - clients have to come first. We cannot go to extremes - we have to be able to make enough profit to live but sometimes the profit is less than at other times because of various pressures.

The Government seems to be taking advantage of this. The new legal aid proposals will not make things worse for clients but will make things worse for their lawyers. Many lawyers will have to close down because legal aid work will just not be profitable. Many will soldier on making sure their clients are OK while their own standard of living falls. .The clients who can find a solicitor will not notice the difference which is what the government is relying on. Isn't it the clients who will find it harder and harder to find a solicitor who should worry the Government? Aren't there going to be more of those than the Government has foreseen as many lawyers are forced to take a permanent holiday?

English Not Plain Enough?

The Coroners Reform Bill was published in the last week having been flagged in advance as being the start of a new method of bill publication. For the first time the Bill was to be accompanied by a plain text explanation. See the BBC story dated 7 June which heralded the changes and how useful they would be: "Unparliamentary language"
http://news.bbc.co.uk/1/low/magazine/5054940.stm

The Bill was duly published on 12 June:
http://www.dca.gov.uk/legist/coronersreform.htm#b
with a misleading fanfare from the government: Press Release:
Government Publishes Coroner Reform Bill - New Focus on the Bereaved First Bill to Be Written in Plain English (it was the explanation which was in plain English, not the Bill)

Unfortunately, the press release and the plain English explanation fail to mention that one of the most important provisions of the Bill - the new power for inquests to be heard in private - is completely new and revolutionary and has profound implications for the Coroner's Service. Fortunately, a few coroners have noticed the problem and have been quick to attack this provision: " Coroners' leader condemns secret inquests as the end of justice" in the Sunday Telegraph is clear enough:

I am not a particular fan of the Campaign for Plain English mainly because many of the documents approved by it (like the legal aid forms I used to have to fill out) appeared to me to be so simplistic as to be patronising. The English was not "plain" it was "simple" which are two entirely different things. Much was lost in the translation of legalistic English into plain English, because the simple words used were not sophisticated enough. The important thing about the language of the legal system is that it should be right even if it has to be complicated to succeed in this aim. Complex laws require complex language and, let's face it, most laws are complex when you get down to it, otherwise they would not be necessary.

The new power under clause 41 of the Coroners Reform Bill to exclude the public from proceedings which have always been public before is so important that you would have thought that the explanatory statement would have clarified this.
The Clause reads:
"Subject to section 44 and to any provision made by the Coroners Rules inquests are to be held in public"
the explanation says:
"This clause makes clear that inquests should be held in public unless there are exceptional reasons for excluding the public; the Coroners rules (to be made under clause 67) will set out the grounds on which the public may be excluded from inquests. The 1984 Rules only require inquests to be held in private where this is necessary to safeguard national security (rule 17)."

The rules have not yet been made and could be far-reaching.

Wouldn't it have been better if the government had given us a plain explanation of what they intend and isn't their failure to do so an example of the misuse of explanatory information, whether in plain English or not?

This week's newswire is late because of pressure of work (I have been up to my neck in my last and largest PI case as well as other critical matters) and because I have to prepare for my holiday next week. I'll be back.

HIPs Keep Hopping Along?

The Home Information Pack debate is heating up. There was an Adjournment Debate in the House of Commons on 24 May when some MP's very succinctly put the arguments against HIPs. It is well worth a read because it is not very long and covers all the main points:
http://digbig.com/4jbrk
The Minister for Housing and Planning (Yvette Cooper) responded for the government making it clear that the government is still relying on a very narrow level of alleged consumer support. Additionally they still use the Danish example in support without at all mentioning the major difference in their housing marker - the seller gives the buyer a 20 year guarantee about the structure of the house and so it is in the interests of the seller to have a report at the point of sale.

Unfortunately, the debate which only lasted for less than 30 minutes, makes it clear that the Treasury has an immense vested interest in pushing the HIP scheme - there is going to be a 175 million GBP annual bonus to the VAT man as a result. Additionally the database created will enable governments to plan tax more efficiently. With that sort of temptation, it is unlikely that the government will allow the scheme to fail despite all its problems and failings.

There are three groups which are an interesting sources of information about HIPs. SPLINTA is against the pack in its present form but in favour of a different more flexible system. Michael Garson, who was so effective as a Law Society Council Member has started a website about HIPs called PerPro the Independent Property Professionals Forum. Hipsco is unique among the HIP providers in sending out news items which criticise HIPs as well as news in favour of them.
SPLINTA:
http://www.splintacampaign.co.uk/
PerPro:
http://www.perpro.org/
Hipsco:
http://www.hipsco.co.uk/

The Law Society has a continuing presence in this debate but I feel it is not as independent as it should be because it is tainted by the financial commitment it has made to becoming the major supplier of the reports:
http://digbig.com/4jbrs
SPLINTA has published research, based on a survey of over 1800 transactions which commenced in February 2006, which shows that the HIP would have a beneficial effect in only 1.4% of cases: http://www.uklawyers.co.uk/cms/catsection/splintapressjun05.html

The argument put forward by the minister amounted to this, and I quote:
"With such a huge asset and when so much information is required before the deal can be completed, why should we use a system that causes inefficiency and protracted delays and that has such huge costs?"

My reply is that with such a huge asset, isn't it better to use a system which encourages caution, rather than providing the poor quality information in the HIPs which will cause people to reach hasty and ill advised decisions?

Web Trends - What is the Commercial Answer?

Two conflicting trends exercise my mind this week, prompted in part by the two House of Lords decisions in the case of Miller and McFarlane and in part by my discovery via Delia Venables of a long established criminal site.

The House of Lords has given decisions in the two conjoined appeals relating to ancillary relief in which the wives won hands down (or so it seems at first glance.) Good for them, say I, but that is not the point of this article. The decision was well publicised in advance and the HL judgments were on the website for all to see on the morning of the judgment day. That is as it should be - open law, easily available to all, even in family cases. But look on the web for less important but still influential if not actually binding precedents about family law, especially where children are concerned, and you will find 90% of cases only on commercial sites where you have to pay a large subscription to get access. Family Court Reporter seems to be the main beneficiary of this arrangement and it is nothing short of diabolical. Why should we have to pay a large amount equivalent to the cost of the printed material to see these reports on the web? Some have cited difficulties with anonymising the cases but that should never be a problem in the days of word-processors. Perhaps the move by the government towards public hearings of family cases (see later in the wire) will help to open up this market.

Compare this with the criminal law scene. As featured later in this wire there are two excellent free web based resources for criminal law - http://www.crimeline.info from Andrew Keogh of Tuckers and http://www.criminalsolicitor.net. Andrew is a well respected advocate and author and his website content (not perhaps its style) reflects his considerable abilities. I don't know much about the authors of the criminalsolicitor.net site but there seem to be three of them and they obviously know their stuff. Both sites have links to web-based source material and both have summaries of important cases and weblinks to their judgments when available.

Despite trawling the web for the last 5 years or so both these sites have only recently come to my notice even though both are well established with many registered users. But they are almost identical. What a waste of time having two separate sites which are both excellent but duplicate each other and earn very little money. Andrew has recently started incorporating his material into his Crime Wiki which is a brilliant idea and means that more people are likely to see it and use it. But why doesn't http://www.criminalsolicitor.net incorporate its material into the Wiki too? The two sites could then avoid duplication and the Wiki site would become more economically viable.

Then this week comes http://www.footballbanningorders.net/ the brainchild of CJH Solicitors of Derby and obviously there to take advantage of the current world cup football mania and be a source of publicity and possible work for the firm. But that material could be in the Wiki too, without the firm losing out.

These three firms are all doing excellent work but all three are re-inventing the wheel. All of us who contribute properly to the legal information mine on the web need to be less parochial and think "big picture open law source" whenever possible. Perhaps firms could sponsor and be responsible for particular parts of theCrime Wiki and get kudos as a result. There must be a way to make all this material easier to find for everyone.

Hang on! How will all these fully-trained and experienced lawyers ever get paid for all the work they put into making this open law source and how will quality be maintained? I didn't say it had to be free, only easily and cheaply available without having to pay the same as the cost of the printed equivalent. Isn't the easy answer that a standard small pay-per-view charge should be levied? This is one way to see another useful criminal law resource, the National Police Legal Database, which you can look at for £10 per day. Public material (eg statutes) should always be free but isn't there an argument for a central source of legal informationwhich is available to all at a very low price?

Legal Aid Lawyers in Quandary?

This week I met a friend who still, like many dedicated people in Bradford and elsewhere, practices almost exclusively in family cases funded by the LSC. More and more she delegates the minor cases to assistant solicitors so that she can concentrate on the most profitable area, namely care proceedings, where anyone involved gets legal aid and which is remunerated at the top legal aid rates. Even so she feels that her department is not providing as much return for her efforts as it should be.

She was disturbed because she had just attended a local LSC meeting at which she and fellow solicitors in the area had been told its plans for the future. At last the LSC is openly admitting that it wants to provide work to fewer, larger firms. In addition it wants to see the accounts for the firms it employs to check their profitability and viability. The LSC also expects open access to the firms' computers by linking to their own. The demands went on and on, apparently leaving a very sour taste in the mouths of the appalled delegates. My friend especially dislikes the idea of merging the few small and medium firms in Bradford into larger ones. She has had experience of a partnership with partners she did not like or respect. She knows how difficult partnerships can be, even for small numbers of like- minded people. She sees little prospect of forming a harmonious partnership with many of the other firms in the town. She believes that lawyers, especially committed advocates, are very individualistic and that they will have great difficulty establishing lasting organisations which will satisfy the LSC. She is also worried that these firms will be so dependent on the LSC for work that they will have less power to complain about its injustices.

What the LSC really wants is the equivalent of a salaried legal service but without the responsibilities which that would entail. They want lawyers at their beck and call but do not want to give them employment rights, pensions, holidays and all the other rights to which employed solicitors would be entitled. They should set up a proper salaried legal service. If they did many including my friend would be happy to join. Instead the LSC expects my friend and the others like her to behave as though they are employed, but covering their own overheads, while providing them with net profits which are less than the LSC would actually put into the pay packet of any lawyers they did employ.

So will my friend and her partners find another firm or two with which to merge? If the partners who do not do family work did not want to do this, would her firm have to break up? Will the new firms really be stable and viable bearing in mind the enormous costs involved in complying with the LSC demands? Or will they have bankruptcy petitions issued against them after a couple of years by HMRC like yet another legal aid firm in Bradford has done recently? And if firms in Bradford do merge, will there then be sufficient to provide a pool of firms capable of dealing with the conflicts which arise eg in many multi-party care cases?

My friend was floundering. She did not know what to do. Her instincts told her to tell the LSC to get lost. If everyone in the profession did so, the LSC would have to stop these plans wouldn't it? But she reckons that some firms will already have said they will comply through short-sighted stupidity or in the hope of carving up the market. If she wants to keep doing the work she loves, for the clients who need her, she will have to comply too, won't she? What are you going to do?

A New Meaning for TescoLaw?

I attended a seminar this week about the Mental Capacity Act 2005 (the MCA) and the speaker expressed the opinion that some members of the government were trying to reduce the influence of the professions. Some politicians believe that the professions are not significant and that professionalism is not important. In support of this statement he produced some astonishing evidence.

The MCA creates a new sort of Power of Attorney called a Lasting Power of Attorney. This is given by the Donor while they have the mental capacity to do so and then comes into effect only when the Power is registered with the Court of Protection, something which will often (but not necessarily) happen after the person has lost mental capacity. The power includes provisions about personal care and can even involve the Attorney in decisions about the disconnection of life support machines. It is therefore considered to be very important that everyone accepts that the person actually did have full mental capacity at the time when the Power was granted. To this end the form incorporates a new certificate to that effect which has to be signed at the time the power is made.

A rather vital and crucial certificate you would have thought and absolutely essential to make sure that it is done properly and professionally. This certificate might be your death warrant! You would surely want to be sure that the person giving it was truly competent and professional. "Not so" says the government, "anybody can do it!"

The consultation paper included a draft prescribed form which set out the proposed list of people qualified to sign this life or death certificate. Here is the list, in the order suggested: anybody (yes, whatever his or her qualification) who has known you for at least 2 years or [no matter how long they have known you]
a local business person or shopkeeper;
a registered social worker;
a General Practitioner (GP) or any other registered Medical Health
Care Professional;
a police officer;
a bank or building society officer;
a solicitor, barrister, magistrate or Justice of the Peace;
a librarian;
a minister of religion;
a professionally qualified person, for example, a teacher or
engineer;
a local authority councillor;
a civil servant;
a Member of Parliament (MP) or Member of the European Parliament.
(MEP)
And is NOT
a relative of the donor;
a husband, wife or civil partner of the donor;
a person who has lived with the donor as husband or wife or as civil partner for two years or more;
an attorney appointed under this form or any other LPA or any other enduring power of attorney;
a current paid carer;
the manager or an employee of the care home where the donor resides; and
a person named on the form to be notified of an application to register this LPA. (Notice the absence of relatives of the donee of the power from this exclusion list!)

I've got nothing against shopkeepers, but would you let the manager of your local Tesco decide if you had mental capacity to do anything?

Apparently this prevision has caused a lot of controversy. The consultation period is over now and the results are awaited. But doesn't the very fact that this decision, this vital decision, has been taken out of the hands of true professionals, with all the accountability and competence which that entails, convince you that the government does not like professionals of any type?

Here are the consultation papers:
http://www.dca.gov.uk/consult/powerattorney/cp0106.htm

Big is Different - Does it Matter?

While I was preparing this newswire I was struck by the impressive nature of Squire, Sanders & Dempsey, a "Multinational Partnership of Foreign Lawyers and Solicitors regulated by The Law Society." This group, featured later in the wire, has a London office which appears to be lead by a team of lawyers from America. It practises world-wide and has an office in China where the law Society president has just spent 10 days on tour. The firm has a very talented load of lawyers, and bears as much relationship to my firm as a pride of lions does to my three household moggies.

Then there appeared the full page advert in the Times for Barlow Lyde & Gilbert (BLG), another multi national firm. They show a list of over 250 firms and their top people. The implication is that BLG has acted for these firms in litigation, or against them. The slogan "If you'd like your name kept out of the legal papers, take a note of ours" does not actually make this clear. Are these the people that BLG have taken on cases against and, if so, is it fair to print their names in the paper? Are these their successful clients, and, if so, is it right to print their names in the paper, even if, as must have been the case, they all gave informed consent?

I would never even have thought of doing that, even if I could have afforded to do so.

These firms move in a different world to mine and their interests are in general very different to mine.

The Law Society has just finished an enormous consultation exercise which asked all solicitors to fill in a questionnaire about the future of the profession. It was very successful, with more respondents than ever before and they have promised to follow the opinions expressed (although I will believe it when I see it.) But surely, the views expressed by the enormous firms mentioned above (which are nothing like the biggest out there) will not be the same as mine simply because the firms are so different?

Isn't it time that we recognised that big firms and little firms are so different that they need separate representation? On the other hand, assuming that the big firms would never want to conflict with the little firms, does their association with the pride of lions they represent give strength to the high street lawyer? What do you think, and did you tell the Law Society?