Letters roundup: 5 August 2022

End of the road for legal aid

I write with the benefit of having practised criminal law for nearly three decades.

My business was hugely affected by the pandemic, but nevertheless we soldiered on. We attended court and prison visits, putting ourselves and our families at risk. There was little recognition and certainly no thanks from the judiciary for our efforts to keep the system ticking over. In fact, quite the opposite. Those who have jumped on the ‘purple lifeboat’ are often the most unsympathetic to the challenges of modern-day practice.

The Legal Aid Agency has also done nothing to assist us. In fact, quite the reverse. Since August 2021 we have been subject to a Specialist Quality Mark audit, a costs audit, a peer review and now a review by the core review team. All within six months. This for a firm that has never crossed swords with the LAA and has a current peer review rating of Excellent.

It is now becoming increasingly hard to make a profit on legal aid work and yet it is over-regulated to the point where actually being a lawyer is secondary.

Basic business acumen dictates that undertaking legal aid work is simply no longer viable.

I am immensely proud of my colleagues at the bar who have taken industrial action at huge personal financial cost. However, it is too late and frankly no one cares. The only way things will change is if both branches of the profession simply refuse to undertake legal aid work anymore.

I believe we are now at the end of the road and I am grateful that my own retirement is within sight.

Gary Ryan

Senior partner, Buxton Ryan & Co, Sawbridgeworth, Herts

When regulatory overreach curbs free speech

Your article, ‘Barristers could be disciplined for “seriously offensive” tweets’ (22 July), has rather missed the point.

The importance of last month’s announcement by the Bar Standards Board (BSB) was that it now recognises that barristers (like all other professionals and non-professionals) are entitled to a legal right to express themselves, which its previous social media guidance failed to recognise.

The old BSB guidance set the threshold for regulatory intervention far too low by, for example, implying that a barrister’s objectively reasonable comments could breach professional standards if ‘considered distasteful or offensive by others’. This old guidance encouraged the practitioners of ‘cancel culture’ to denounce, rather than debate. I, for one, fell prey to it when 18 of my tweets on political issues were investigated by the BSB at the instigation of my left-wing political opponents.

I was ultimately vindicated in respect of all 18 tweets, but only in March when the Bar Tribunals and Adjudication Service (BTAS) allowed my appeal, and concluded that the old BSB guidance was not premised on a recognition of the legal right to speak freely, especially on issues of public importance.

BTAS ruled that for regulatory intervention: ‘At the very least, the relevant speech would have to be “seriously offensive” or “seriously discreditable”’ and even ‘in such cases there would have to be a close consideration of the facts to establish that the speech had gone beyond the wide latitude allowed for the expression of a political belief’ (para 44).

Accordingly, the new interim BSB social media guidance has replaced the low thresholds for regulatory intervention (‘comments designed to demean or insult’) with much higher ones such as ‘comments that are seriously offensive’ or which are ‘gratuitously abusive or which may incite violence’.

The BSB’s new guidance needs further improvement to make even clearer the extent to which political speech is and must, in a democracy, be protected, but it is a big improvement on what went before. The era of regulatory overreach, that has the effect of turning a profession of independent thinkers into meek and mild conformists, is on the wane. This is good for the professions, the public and democracy as a whole.

Jon Holbrook

Barrister, London

Open up the judiciary

Recent statistics on judicial diversity (25 July) once again show the stubbornly low representation of ethnic minorities in the judiciary. Worryingly, we are also seeing low success rates for both non-barristers and ethnic minority candidates applying for judicial roles – a cause for concern that all professional bodies must work together to tackle.

This new data presents more questions than it answers, and, from CILEX’s perspective, highlights how important it is to open up all judicial appointments to CILEX members in order to encourage this most diverse part of the legal profession to apply for judicial appointments and account for more than 1% of the applicants in the future.

This would be a major step towards the solution and we look forward to supporting other positive steps to encourage and develop the broadest possible range of applicants successfully joining the judiciary.

Professor Chris Bones

Chair, CILEX, Bedford

First impressions count

Customer satisfaction remains high but more of us than ever are shopping around before choosing a lawyer, according to the Legal Services Consumer Panel’s latest annual tracker survey.

It is welcome news that consumers feel they have choice, and better access to price and service information, but it does prompt the question of how many firms have been rejected during this research phase and why.

That’s why investing in effective marketing – of your website, social media profiles and performance on increasingly popular review and comparison sites – is crucial.

You don’t get a second chance to make a first impression, and these days whether that’s good or bad is determined by your online presence.

Your competitors are only one click away.

Andy Cullwick

Head of marketing, First4Lawyers, Huddersfield

SRA needs to restore our confidence

I read the article by Greg Treverton-Jones QC with interest (‘The demise of a fair disciplinary system for solicitors’, 22 July). With some reservations I uphold his views. It is right, for example, that the ability of the SRA to fine should keep pace with inflation. I would, however, go much further than he does – it is unfortunately the case that many of the cases brought by the SRA must be suspect because it is the SRA which is bringing them.

The SRA has the most obvious case of groupthink I have ever seen. The regulator itself clearly thinks it is doing a great job whereas almost everyone else thinks it is pretty awful. Issues include (a) going after junior lawyers when it is perfectly obvious their supervisors are just as (if not more) culpable; (b) failing to consider the mental health of the lawyer concerned; (c) the admitted preponderance of BAME lawyers facing disciplinary proceedings, coupled with a bald acceptance that they do not know why this is the case; (d) a strange preoccupation with the sex lives of lawyers; and (e) allowing their own lawyers off the hook when there was clearly an argument of ostensible bias.

I give the regulator some credit though. For example the statement that they would look at the behaviour of a firm’s principals when considering action against a junior, and the fact that it appears that the de facto immunity enjoyed by lawyers at the top firms has come to an end. I have noted also that they intend to revisit the reason so many BAME lawyers face disciplinary action.

Nevertheless, the regulator does not appear to appreciate – or care – about the gulf between the regulator and the regulated.

A hypothetical lawyer faces disciplinary action by the SRA. If s/he knows the regulator will do their job carefully, admitting no bias and following due process, and if s/he knows their expenses will be covered if the action proves to be groundless, then the confidence s/he will have in the regulator will be such that s/he probably does not mind that the SRA can impose a large fine without going through the SDT.

The problem is that the regulator’s reputation is so damaged within the profession. This hypothetical lawyer (especially if s/he is minority ethnic) is going to start from the position that the regulator will not conduct a fair investigation or ensure due process, and that s/he is damned from the start. It doesn’t matter how good the defence or how shaky the case – s/he is going to be fined a large amount – and even if s/he is not, s/he will neither receive an apology nor costs. I accept that most of the work done by the SRA is likely to be uncontroversial and conducted entirely properly. But that is not the point. There have been enough serious mistakes and misguided actions to bring the judgement of the regulator into doubt.

The most pressing need for the SRA is to make clear that its primary task is to restore confidence among the profession. Clear and public policies to protect junior lawyers from the actions of their supervisors are needed; the attitude that the lawyer should resign and then shop the employer is utterly ridiculous. There is also an urgent need to commence a proper investigation into the apparent bias against BAME lawyers. The appointment of a third party to investigate alleged wrongdoing by firms with whom the SRA has a relationship is also a must.

A regulator that does not enjoy the confidence of the profession it regulates is not a regulator – it is a tyrant.

J Howard Shelley

Bilston, West Midlands