I love reading Twitter (sorry, X) accounts of people with whose political views I heartily disagree. This is not only to see what they have to say about the big political stories, so that I can become pleasurably enraged, but also to read the replies of commentators underneath who pick apart their statements. Well-known political commentators are like big ocean fish – they have little fish swimming around them, either supporting them, which I find pointless, or, more to my liking, trying to tear them apart. I learn that way.

I also read accounts of those whose views I support, and then the process is reversed. But the rage and pleasure are reduced when it is an account on my side.

The concept of devil’s advocate comes from the Catholic Church during the canonisation process, when the role of the devil’s advocate – a canon lawyer - would be to try as hard as possible to undermine the case being made by God’s advocate, and so highlight flaws in the character of the candidate for sainthood. It is how we learn.

We have some of the same role in our accusatorial legal system, where the parties, subject to strict ethical and procedural rules, tear lumps out of each other’s cases. But there are two big differences between arguments in court and outside it: one is the existence of the strict ethical and procedural rules (big tech is largely self-regulating, although that is changing), and there is a judge in court who eventually provides an answer.

One of the many pleasures of those X arguments is that we are the judges. So, in the recent flare-up over the introduction of ULEZ in London, those who supported the vandalisation of ULEZ cameras were often faced with their recent condemnation of the antics of Just Stop Oil protestors – and vice versa in the opposite accounts – while we could then judge whether the accusation was justified.

Continuing the theme of learning by juggling opposing views, there was an intriguing case involving an actual judge over the last week, which caught my eye. It took place in the US, where cases involving lawyers and judges are wild. For instance, there was also a case of a lawyer who shot dead his client but is expected to face no charges – however, the facts on that are scant, and so I will stick with the New York judge who called a school teacher ‘a stupid bitch’, and is now recommended for admonishment.

Interestingly, the judge is not recommended for admonishment for using what the Americans call a curse word. Rather, the wrongdoing was that the judge, who was blocked behind the teacher’s double-parked car outside the teacher’s school while the judge was on her way to work, rushed into the school, ‘identified herself as a judge to the school safety officer, said she had to get to work at the courthouse and asked about the vehicle’. When the teacher appeared, the judge used the dread ‘b’ word and told her she had a court-house to run.

Her mistake was this: the judge ‘improperly asserted her judicial status when speaking with the school safety officer and created the appearance that she expected special treatment and deference due to her judicial position.’ However, she apologised, was subject to administrative action by her supervisors, and so was deemed eligible for the mildest public discipline available. Right or wrong? 

All this is by way of light-hearted introduction to one of the most serious decisions that we solicitors will face in the coming months, where strong arguments will be wielded like clashing maces in a close quarters medieval battle: the question of whether the SRA should assume regulatory control over CILEX members.

For every argument that the move ‘has potential to deliver tangible benefits to consumers of legal services and the wider public’ and ‘would simplify the complex regulatory landscape, making it easier for consumers to navigate’ (SRA – ha, really?), there will be arguments that the move brings ‘a higher risk of causing greater confusion for when they [consumers] are choosing the appropriate legal provider to meet their needs’ (Law Society – exactly!). There will be arguments over turf and status and money.

Although a decision will finally be made – not by a judge (unless litigation arises) but by the Legal Services Board – we will be consulted and should be ready with our views. Knowing what those who oppose us say, however enraging, will be important in informing our own response.

I know what I personally think. I would cut through the Gordian knot by grandfathering in to the solicitors’ profession all current CILEX members, so that they become solicitors, maybe subject to qualified practising certificates, with all newcomers becoming solicitors through the SQE, a route acknowledged to be accessible. There, it is done! I hope that that becomes at least one of the options we will consider.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society

 

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