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?