Activist lawyer

Populism has detonated a bomb under constitutional norms that the Law Society would once have taken as read. One of these is the inalienable right of lawyers to represent people, businesses or other institutions of whom the state and public might disapprove. And, of course, to pass judgment upon them in accordance with the rule of law.

Legal practitioners and judges now routinely find themselves smeared as ‘lefties’ or ‘activists’ when their professional endeavours are not to the government’s taste. And not just by backwoods MPs, choleric newspaper columnists or opaquely funded libertarian thinktanks. Law officers and even prime ministers gleefully weigh in too.

'What we’re finding is that there are areas where public opinion is starting to impact on what solicitors feel they can or cannot be doing'

The Law Society is fortunate, then, in its choice of Lubna Shuja as Chancery Lane’s 178th president. As a sole practitioner specialising in professional discipline and regulation, and a deputy clerk at the Solicitors Disciplinary Tribunal for 13 years, she is well placed to take the fight to the profession’s detractors. Solicitors need to find convincing answers to what have suddenly become challenging – and politically freighted – ethical questions. Shuja has made professional ethics and influencing their evolution a key priority as 2022-23 president.

‘What interests me now is how, over the last few years, [this debate] has developed,’ she says. ‘We know that we have principles and regulations that solicitors need to act in accordance with and in the main they absolutely do so. But what we’re finding is that there are areas where public opinion is starting to impact on what solicitors feel they can or cannot be doing.’

She offers an example arising from the war in Ukraine. Law firms and individual practitioners found themselves ‘named and shamed’ as ‘enablers’ in parliament and the press for representing Russian clients.

In the invasion’s immediate aftermath, the profession held the line. The City of London Law Society, for example, defended the right to representation by declaring that ‘the fact that Putin ignores the rule of law does not mean that we should follow his example’. Its protestations counted for nought. Within days, the perceived reputational contagion prompted a panicked exit of elite firms from Moscow and rapid reviews of client rosters across the City.

‘This is why we want to open up a focus on ethics. We want to talk about these issues and work out the best ways for our members to navigate them,’ says Shuja.

In-house dilemmas

Solicitors working in-house, who now comprise a quarter of the Society’s members, are encountering similar dilemmas, Shuja stresses. ‘They may find themselves giving advice that, for commercial reasons, senior executives who are not lawyers don’t want to accept,’ she adds. ‘That puts in-house lawyers in a difficult position. They will ask themselves, “how do I navigate this? It’s my neck on the line as the lawyer answerable to the SRA.”

‘How do you deal with that? I’m not saying I’ve got all the answers or that I’m going to tell you exactly what they need to do and how to do it. But we need to pursue that dialogue.’

Another example, a little less stark but no less emotive, is climate change. The reputational risk that comes with representing or working for clients which contribute to global heating continues to rise.

‘That’s a really good example of what I’m talking about,’ says Shuja. ‘Public opinion is shaping difficult questions: “Why are you acting for that client? They are not doing anything to be climate-friendly, to achieve net zero. Why are you helping them to continue what they are doing?”.’

She adds: ‘But actually, the question then is: do lawyers have a role in advising those clients on these matters? Saying, perhaps you [the client] should be thinking about what you are doing [on climate change]? It’s a conversation that we need to open up to see what people think.’

Junior lawyers too are a concern, particularly when they come into contact with the disciplinary regime. To what extent should they take the rap when rules are broken? How culpable are their supervisors? These are still questions that prompt impassioned debate.

‘We had a period where very junior lawyers were being hauled before the SDT and their supervisors were not,’ says Shuja. ‘Where does the boundary lie when things go wrong? There needs to be a conversation around that.’

Alluding once again to political attacks on lawyers, Shuja turns to the second of the five priorities she identifies in her presidential plan (see ‘Five-point plan’, p26). She wants the public to better understand not just the role of solicitors in upholding the rule of law, but also how solicitors are woven into the very fabric of society.

'If you haven’t got solicitors making sure that the law is applied properly, you’d have anarchy – chaos. People could do whatever they like'

‘Solicitors have been unfairly criticised for doing particular types of work [such as immigration] that they are fully entitled to carry out. Because that criticism has come from on high, that has had an adverse impact on our reputation.

‘I want to do what I can to get the public to understand that solicitors are really important to the functioning of society and of businesses. Members of the public don’t really get how important solicitors are until they need advice and have to go and see one. They might be buying a house, or writing a will, or getting involved in litigation. It is at that point they realise the value that solicitors bring.

‘If you haven’t got solicitors making sure that the law is applied properly, you’d have anarchy – chaos,’ she continues. ‘People could do whatever they like. There is an element of public education to be done in that sense. People understanding what their legal rights are, but also that it’s a solicitor who enables them to exercise those rights, to get what they are due. Justice is just as important as the NHS, frankly.’

If only government could be thus persuaded, adds Shuja, everyone would benefit. ‘Civil legal aid for early advice is something else the Society will continue to campaign for,’ she stresses. ‘I was speaking to a district judge recently who told me that nowadays, [DJs] get more and more litigants in person appearing before them on both sides. The judge told me, “It’s not unusual that I will go in to hear a case and one of the litigants will have spent a day googling whatever they can on the internet, then printing off everything they think is relevant. In court they’ll produce an inch-thick little booklet, give it to me and say, ‘There you are, that’s my case’.”

‘That is not a cost-effective way of dispensing justice, securing fair access or indeed securing fair outcomes,’ Shuja says. ‘It’s counterproductive. Whereas, if that litigant in person were able to go and see a solicitor, that solicitor will very, very quickly narrow down what the key issues are, determine whether they have got a case and the best way to deal with it.

‘It’s a good economy in terms of using the courts efficiently.’

Repair legal aid

As advice deserts gradually fanned out, the Law Society first called for an independent review into the sustainability of the civil legal aid system in 2017. But while it may still be unrealistic to expect the government to roll back LASPO, the notorious 2012 act that so severely truncated access to civil legal aid, there is hope. Earlier this month the Ministry of Justice issued its first formal confirmation that it is conducting an internal review.

Shuja is again keen to stress the potential budgetary benefits. ‘When I first started, I used to act for a lot of clients who would get civil legal aid. And when you applied, back then there had to be good prospects of success. You wouldn’t get it otherwise.

‘In all that time,’ she adds, ‘I very rarely put in a claim on the legal aid fund. When we succeeded, we got costs from the other side. But what it meant was those clients could come to me very early on, I could give them advice, prepare the case in an appropriate way that wasn’t wasting court time or wasting costs. And actually in the long term it didn’t cost the Legal Aid Agency anything. That’s not available now. Because clients can’t afford to see a solicitor they just go off and dabble themselves.’

Shuja recalls the ‘green form’ that enabled a solicitor to dispense an hour’s advice. ‘In that hour, you’d actually be signposting or even help them resolve the issue so things wouldn’t go any further. Now, you have district judges put in the position of being counsellors to those who appear before them.’

So what of Shuja’s other priorities? Uppermost in the in-tray is criminal legal aid. Barristers may have gone back to work but the new president this week reiterated that the Law Society has a duty to tell solicitors to refuse criminal work if they are not paid properly for it. Solicitors continue to demand a 15% increase in legal aid fees to give them parity with barristers, maintaining that what is currently on the table only amounts to 9%.

Like all presidents, of course, Shuja can expect to spend plenty of time on planes. For 12 months she will act as a trade envoy, working to secure free-trade agreements for legal services in the aftermath of Brexit. At a Law Society event she hosted last week, justice minister Mike Freer (who remains in post) stressed that expanding legal services exports is an important part of the government’s growth strategy. He pledged to ‘peel back’ existing trade deals to check if promises to open legal markets are becoming reality.

‘We want to start to dig in to these market barriers: have they really provided access?’, said Freer, hinting that Saudi Arabia might be one target.

In addition to the Middle-East, Shuja identifies India as a priority jurisdiction for international work. She will need to be persuasive. It is more than a decade since the then justice secretary Kenneth Clarke, the Law Society and the Bar Council agreed a road map for reform of India’s historically protectionist legal market, and progress has been glacial.

Legal services is not covered by any of the 11 free trade agreements that India has reached, mainly with other Asian countries, over the past 20 years. Last year, the UK Department for International Trade published a table of ‘trade restrictiveness’ showing that legal services is second only to rail freight transport in being closed to non-Indian suppliers.

The glacier is now clearly moving, nevertheless. This month the global firm Dentons announced plans to combine with a major Indian firm, Link Legal, in what was hailed as an ‘historic breakthrough’.

High-level D&I

Another distinctive aspect of Shuja’s presidency will be her accessibility to the Society’s members. She is ‘going on tour’ and wants to hear from you (see ‘Five point plan' above).

‘As ex-chair of the membership and communications committee, I’ve always had in mind what more we can do to support and promote members,’ she says. ‘I’m not London-centric. My door is open and I want members from all over England and Wales to contact me at any time. Our job at the Law Society is to make members’ lives easier.’

Finally, we come to diversity and inclusion. This has been a recurring preoccupation of recent presidents and is no less of a priority for Chancery Lane’s first Muslim incumbent.

'I’ve always had in mind what more we can do to support and promote members… My door is open and I want members from all over England and Wales to contact me. Our job at the Law Society is to make members’ lives easier'

Like her predecessor, I. Stephanie Boyce, Shuja is living proof of progress here. There are solicitors still working today who qualified before the Society elected its first woman Council member, in 1977.

Shuja stresses: ‘I want to focus particularly on senior levels in the profession, and in the judiciary. Diversity is progressing at entry and junior levels but it is stalling further up. I’m from a working-class background, and went to a state school. I got a grant to study at university and I wouldn’t have been able to go otherwise. So it’s a given that diversity and inclusion will be a priority for me.’

 

Photography: Darren Filkins