The lawyer and legal commentator David Allen Green (DAG hereafter) has taken exception to the comments I made earlier this week on the behaviour of some lawyers.
DAG said in a blog post that he was anxious not to misrepresent my arguments, and so posted this section from the Twitter thread I had written, as follows:
It is unfortunate that DAG failed to notice the follow-up thread and blog as a result of exchanges with David Wolfson: a lawyer really should assemble all their evidence, and DAG has not. He should read that blog to get up to speed. But, leaving this obvious failing aside, let's just look at the response he made to the comments he has noted that I posted.
His argument (if I can credit it with being one) would seem to be that in an unequal world it is good that the rich have access to lawyers even if others are denied that opportunity because those lawyers can then tell their rich clients what they may not do, which is apparently what he thinks is all that they do for their clients.
Now I happen to think both lawyers and accountants play an enormously useful role in telling people what they may not do. Encouraging legal compliance is a vital task for a professional person, ably explained by David (now Clair) Quentin in this paper, which I suggest that DAG reads. In it Quentin argues that professional people can be a force for good by encouraging legal compliance. But, they can also, as he notes, help their clients take deliberate legal risk, which he suggests that many might do when it comes to tax. He calls this ‘risk mining', and as Quentin and I both know, this is commonplace in tax practice, where the construction of risky tax positions that might not be legal remains too commonplace. I reflect that fact in a couple of the points I make, and by implication in the others.
DAG does not recognise this or, apparently, the possibility that such conduct might exist. Instead, he says this:
I think Murphy is wrong.
I think – perhaps counter-intuitively – that it is a Good Thing that those who are powerful in society have to have lawyers in place when exercising their power.
The starting point is the simple observation that modern societies – unless there is some happy intervention – tend to be unequal.
This means that in modern societies there tends to be people with more power than others.
These people would tend to have power, regardless of whether they have lawyers or not.
So why do those powerful people need to have lawyers?
It is because of a thing called “the Rule of Law” which means that every exercise of power has to have a lawful basis.
“The Rule of Law” means the powerful cannot do as they wish: instead they have to comply with the law.
That is why powerful people often have lawyers.
Imagine a society where those with power did not need lawyers – that the powerful could exercise their power without worrying about whether they are breaking the law.
That would be an even more brutal and unequal society.
In each of the categories that Murphy posits in his thread, the real significance is that the powerful have to have lawyers – because however mighty those powerful people are, the law is mightier.
What would be more worrying is if the powerful could get their way in each of Murphy's categories without needing lawyers.
What this has to do with what I said is very hard to work out. However, a tweet he published last night adds some clarity. In it he offered this clarification:
This helped me, because what it showed is that DAG is making up what I said. Nowhere did I say that the rich should not have access to lawyers. It is quite absurd to claim that I did. As a consequence, everything DAG says in his blog post is a pure straw-man argument.
What I actually said was that there are lawyers who exploit the fact that the rich are the only people with access to lawyers (as he acknowledges to be the case) and that some of them do so to provide their clients with a deliberate unjustified advantage within society at cost to other people. If DAG had read my exchange with Lord Wolfson he would have seen that I placed this within the context of relationships of power (which again, he seems to acknowledge exist), which are the usual concern of political economists, and within the context of the arbitrage of law to secure economic advantage, which is another near perpetual theme of that discipline, both of which matters very clearly exist. But not only did DAG not read that, he simply made up an argument that he has attributed to me that was not in any way implicit in anything I wrote.
At the same time he used the defence Lord Wolfson also used, which is that I am wrong to blame this situation on a lack of access to the law, to which his solution, like Wolfson, is to suggest that in an ideal world this would be resolved by providing equal access to the law for all and the problem would go away. This, he apparently thinks (as David Wolfson did) to be his killer argument. I, of course, agree. That would be wonderful, just as a fully functioning democracy, an NHS that could deal with all patients without massive delays in ambulances outside hospitals and an education system that really provided equal opportunity for all would all be similarly great things. But we have not got them and are unlikely to see them for some time to come, just as the prospect of a legal system where all have access to a lawyer looks as unlikely as Ipswich Town winning the Premiership this season, much as I might wish it.
In that case, I suggest that DAG should deal firstly with the arguments that I actually made and secondly with the real world rather than that fantasy one in which he places his arguments. In that real world that we do have unequal access to the law is a fact, as it is also a fact that there are some lawyers (I never said all, and never intended all) who abuse this situation in very specific ways of the types I mention.
In addition, DAG needs to note why I said all this. I did so when referring to the abuse that is heaped on those supposedly left-wing lawyers who do actually uphold the rule of law on behalf of the victims of abuse from those in power to prevent injustice from arising. This abuse is currently being dished out towards human rights lawyers by Rishi Sunak, Liz Truss and the tame right-wing press, wholly inappropriately. What I was suggesting instead was that there were lawyers who really were a problem in society by acting for the rich in some quite specific ways to effectively undermine the rule of law for their own advantage. DAG, like Wolfson and others who have commented from the legal profession, has ignored this. Instead, DAG says I am wrong to present an argument I never, even remotely, made.
I look forward to his apology, and his acceptance that I have raised an issue that does need to be addressed because it is very apparent that some lawyers do act in the way I suggest. If in doubt, I suggest he muse on who offered advice to P&O that they could sack all their staff, illegally as most agreed to be the case, and replace them with agency staff and that they were likely to get away with this breach of the law without prosecution, as it turned out was the case.
And, one final point that others have raised, which is that this is most definitely a matter for lawyers and not politics. The legal profession is self regulating. There is abuse of power on behalf of clients that does undermine the rule of law that goes on within it, as I noted. The idea that all lawyers simply tell their clients that they may not do things is absurd when it is readily apparent that some lawyers spend a great deal of time working out how to bend the law to suit their client's desires. This is a practice that an ethical legal profession could and should stop, most especially when it is known to all, DAG and Wolfson included, that many of those who might suffer as a result (either directly, or indirectly in the case of tax haven abuse) can never have access to the law. But the legal profession does not seem to want to stop that, any more than those lawyers who practice in this way seem willing to show their clients who want to use their power to abuse their relationships with others the door, which is an option always available to them. So the defence that lawyers cannot be blamed for what is happening is also quite wrong.
Very politely, DAG should stop making claims about what I said that are very obviously wrong. We might have a proper debate if he did. As it is, he is simply defending the indefensible by suggesting in an ideal world this would not happen when in the real world it most definitely does, and that is far from good enough from someone who claims that he provides "independent commentary on law and policy from a liberal constitutionalist and critical perspective", which seems not to be the case based on the post he has made.
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At a more mundane level I can point to a claim that a wealthy home owner made against a neighbour of theirs, the Solicitors who made the claim had to be perfectly well aware that the claim was vexatious but went ahead anyway.
The plaintiff ended up paying the defendants costs but sadly she did not make a complaint to the solicitors regulatory body.
Worth making the point that in the past solicitors, banks and accountants tended to shy away from many ‘tax avoidance’ activities leaving them to the wide boys, surely in the same way the regulators should be taking the view that if you get involved in the more elaborate schemes then you don’t practice in a regulated profession or get authorisation as a bank?
I have serious doubts about DAG’s understanding of the world based on his first argument:
I think – perhaps counter-intuitively – that it is a Good Thing that those who are powerful in society have to have lawyers in place when exercising their power.
I am unaware of any requirement that those in power have to have lawyers in place when exercising their power. Most do, it is probably very sensible that they should. But, surely, apart from, possibly, those in government depqartments, it is not obligatory.
I’m glad you agree with David that it is a good thing for the rich and powerful to have access to lawyers, to be advised what the law permits them to do, and prohibits them from doing. As we all know, the law is often far from black and white, and the lawyers will advise on the areas of ambiguity too. It would be a fine thing for everyone to have access to good legal advice, but we don’t have a National Legal Service, free at the point of delivery.
David’s subsidiary point is that the lawyers do not make the law: “The applicable laws may well need improving and reform – there may need to be better balances struck between the interests of those with more power and those with less power. / That is the job for the legislature.”
Indeed, the applicable legislation makes it far to easy for many landlords to evict tenants. But is that better than the landlords – far too many – who resort to extra-legal (that is, illegal) self-help, and just push tenants out without going through the legal process. Good luck getting to any illegally evicted tenant trying to obtain any kind of remedy.
As I read your comments, you were saying that some lawyers act in ways that you (and others no doubt) consider unethical, immoral or unprofessional. Certainly some do. In my experience, few and far between. It is mainly the accountants who “design tax abuse schemes”. Typically complicated arrangements designed to skirt around gaps or ambiguities in the law, or rely on different bits of the law that do not fit together as well as they should, or make technical arguments that only work if you look at them from a particular angle. My perception is that there is less of that now than there was a few decades ago.
Certainly there are lawyers in “tax havens”. At least arguably, the UK is one. Luxembourg. Ireland. Many US states – Delaware, Nevada, etc. Singapore, Panama. Also the Channel Islands, Gibraltar, Cayman, Bahamas, BVI, etc. – certainly more than could be explained by the needs of the local population. Most are simply assisting their clients to comply with the legal regime as it is. Yes, in many cases the law should be changed, but that is not the lawyer’s job.
I think P&O now accepts that it acted illegally. If they were asked beforehand, I expect its lawyers told them it would be unlawful at the time, and the potential consequences., but they went ahead anyway Believe it or not, lawyers advice and clients decide. It is somewhat extraordinary that no regulatory action has been taken against P&O, despite Peter Hebblethwaite’s public admission that “There’s absolutely no doubt we were required to consult with the unions. We chose not to do that. … It was our assessment that the change was of such magnitude that no union could accept our proposals.”
https://www.theguardian.com/business/2022/mar/24/po-ferries-boss-says-800-staff-were-sacked-because-no-union-would-accepts-its-plans
https://www.gov.uk/government/news/po-ferries-update-from-the-insolvency-service-19-august-2022
Towards the end of your piece above, you move from criticising individual lawyers, or types of lawyers, to criticising the legal profession as a whole. That is unfair. The SRA and SDT may not be as independent as you may like, but at least there is a published code of ethics which is enforced much more vigorously than the Ministerial Code. Solicitors must uphold the rule of law, and the proper administration of justice; maintain public trust and confidence; act with independence, honesty and integrity; encourage equality, diversity and inclusion; and act in the best interests of each client. https://www.sra.org.uk/solicitors/standards-regulations/principles/
If the suggestion is that no regulatory action is taken against “bad apples” you might want to consider the fate of Paul Baxendale-Walker. https://www.sra.org.uk/consumers/register/person/?sraNumber=145545
I am sorry – but not a single accountant does a serious tax scheme without getting counsel’s opinion, so your argument does not stack
And saying ‘I am just applying the law is an unacceptable excuse: every lawyer (not very barrister, but every solicitor as gatekeeper) can refuse to act for a client so that claim comes nowhere near stacking
And I am not suggesting bad apples: I am suggesting systemic failing with regard to a significant number – but not all – lawyers, which anyone but a lawyer can apparently see
Sorry – but we will disagree on this one
There are certainly tax QCs who sell tax opinions about whether or not a tax scheme could or should work as a technical matter. Typically based on very carefully phrased assumptions in their instructions, written in the main by accountants. But in the main the QCs do not devise and sell the schemes. That is the work of the accountants. Not least because they have clients who want to pay less tax, and also because these days the accounting treatment plays a large part in tax planning.
Sure, solicitors can refuse to act, and do, for a variety of reasons. So can accountants. If so minded, barristers can often find a reason not to act – either they are too busy, or it is not their area of expertise, or they quote a fee that is so large the client goes elsewhere. But even bad people are entitled to ask for and receive legal advice.
I refused to act for those whose motives I did not trust
We turned down approximately 50% of all business offered to our firm – and were more profitable for it
Why? Because we only worked with people we valued, not ones we thought bad
Criminal law is clearly an exception, but why does anyone else want to work for bad people? What is the ethic in that?
You said
Indeed, the applicable legislation makes it far to easy for many landlords to evict tenants. But is that better than the landlords – far too many – who resort to extra-legal (that is, illegal) self-help, and just push tenants out without going through the legal process. Good luck getting to any illegally evicted tenant trying to obtain any kind of remedy.
If you genuinely think that numerous landlords do not already, and with impunity resort to extra-legal (that is, illegal) self-help, and just push tenants out without going through the legal process. Then you do not live in the world in which I live.
What I actually wrote is that legislation makes it too easy for landlords to evict tenants. For that you can blame the lawmakers who made and kept laws that have failed to protect tenants for decades.
But even that is better than the (too many) landlords who resort to illegal means, with impunity, because (and apologies for the lightly mangled sentence here) in practice it is almost impossible for illegally evicted tenants to get any form of redress. And for that you can blame the lawmakers and government who have underfunded the courts and legal aid to support access to civil justice.
The real peril to the rule of law in this country right now is not the lawyers but the present government, who are doing everything they can to normalise ministers acting above or outside the law without legal constraint, and to render our criminal and civil justice systems impotent.
Largely true
I always said it was a very particular minority of lawyers
The legal profession has become increasingly marketised over the years and also knows that the rich can pay, which means fat fees and being rich oneself – just like the accountants and management castes have.
At one end you have lawyers touting for (say) industrial injuries and at the other people who can get the rich off from speeding fines and other misdemeanours.
My conclusion? I think that there are too many lawyers and yet we don’t seem to have enough of them in the right places.
That sort of thing is called market failure.
Spot on
We undoubtedly have a misallocation of resources. If you were a young law graduate, would you rather work for a pittance in the criminal bar, or writing wills and doing conveyancing, or earn almost £180,000 as a newly qualified solicitor at the London office of a US law firm. https://www.rollonfriday.com/news-content/exclusive-akin-gump-pay-its-nqs-ps179000
Many firms lower down the tree are paying NQs around £100k. For people with hardly any experience. It is bizarre,
And some indication of exactly what I am saying is happening, of course, and which is so vociferously denied by some in the legal profession
Thank you for this, to which I have only one response.
This is a good example of a blogpost that does not use single-sentence paragraphs.
So, I shall assume you stand for the abuse continuing, which is the only inference I can draw from all you have said
If you ever find yourself unemployed I’m sure Microsoft would be delighted to employ you writing Help Files.
Just as accountants are often accused of being like the cynic in knowing the price of everything and the value of nothing, there is a group of lawyers who know the letter of the law but have long forgotten the spirit. They are part of the rich and powerful and amplify the abuses of that power. We see it with the likes of Carter Ruck acting for oligarchs to silence investigation into and exposure of their misdeeds. Company lawyers whose power makes it impossible for customers to challenge mis-selling or abuse. Financial services whose legal muscle can outfight much more poorly resourced regulators.
Lawyers, like some accountants, like to pretend that the law is somehow neutral, open and fair to all. The reality is that it is far from that. Both groups have professional bodies who very rarely intervene to punish abusive behaviour by their members.
Agreed
You make an important point Robin about the spirit of the law.
The law at the rich end of society and law practice is seen as fair game and open to interpretation and challenge to the point where I feel that it has almost no force at all with these people who do not consider themselves as ‘rule takers’.
To me it’s straight forward: its anarchy. And the legal profession are enablers of this, because only the wealthy have the funds to stretch these arguments that far.
As Britain follows where America leads it is worth considering the case of Donald Trump.
Viewed by many, ranging from the KGB to Republicans who worked for him, as an ignorant moron, he managed a career that took him from crooked New York landlord to the White House entirely enabled by lawyers and accountants.
Now, having committed just about every constitutional crime in the book it still looks like the same army of lawyers and accountants will keep him out of jail.
Even Bertolt Brecht who wrote the satire about the attempt of small-time gangster Arturo Ui to corner the Chicago cabbage market would have been amazed by Trump’s progress
Today, in my role as a Green Sheffield City Councillor, I was walked around Council Flats by a proud and enthusiastic member of its Tenants and Residents Association. The area has over the last ten years been neglected.
I was shown gardening projects that residents and their children within this development and was told that the Council’s housing department had said this was not permitted and their efforts to grow food and flowers had to be abandoned. They had bought gardening equipment but were told they could not use a cupboard to store them. Such is the Councils fear of litigation no doubt advised by their legal departments solicitors.
Perhaps a banal example of the misuse of the our legal system but to me it illustrates the impact it has on stifling social cohesion on peoples lives. I could weep at this unintended cruelty.
It is the ambulance chasing legal profession and the Tory Government’s austerity that you can blame for that Bernard!
Unfortunately, this is a sign of the compensation culture that was brought in under Labour, where no-one takes responsibility for their own actions, and everything is someone else’s fault.
Politely, stop being stupid.
That selfish culture is neoliberalism – which is fundamentally Tory
I think you under-stated this a little bit. It’s not just readily apparent (and common sense) that lawyers put their rich client’s interests above the law, it’s also the explicitly stated legal guidance of the Attorney General of England and Wales.
https://www.theguardian.com/politics/2022/jul/30/braverman-orders-government-lawyers-to-offer-solutions-to-legal-challenges
And then of course, we need to consider that the rich and powerful put in the laws in the first place, or at least have a material influence on what laws are introduced – particularly when it comes to tax and property.
It is about power, obviously. DAG says that lawyers have the power to object/advise against the legally dubious exercise of power by their clients. The examples that you list are ones where the lawyer has *chosen* not to exercise their power because £££/$$$. Same can apply to accountants and politicians. Neoliberalism 101.