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Precarious professionalism

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Inaugural Lecture 6 March 2014

Published in: News & Politics
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Precarious professionalism

  1. 1. Precarious Professionalism
  2. 2. •Professionalism?
  3. 3. Why did you become a lawyer? Why do you think others want to become lawyers?
  4. 4. The (wannabe) lawyers…
  5. 5. And the non lawyers…
  6. 6. Are these values important?
  7. 7. Salaries of trainees before minimum salary abolished • SRA 2011
  8. 8. Defining professionalism
  9. 9. Professions, ―are devoted to the service of the public, above and beyond material incentives.‖ Larson
  10. 10. ―the use of discipline knowledge and skill for the public good.‖
  11. 11. that raising up implies, ―a duty to appraise what they do in the light of the large good, duty which licenses them to be more than passive servants of the state, of capital, of the firm, the client, or even of the immediate general public.‖
  12. 12. Ideological to institutional claim Market Self State
  13. 13. Separate from the market but rewarded by the market
  14. 14. Market Self Profession Public State
  15. 15. Legitmacy crisis Reality check
  16. 16. Key, precarious claims • We are more competent • We are more ethical • Our solutions are the most relevant • Our knowledge is state of the art • Our regulation is optimal
  17. 17. 1. We are (more) competent
  18. 18. What do we mean by quality?
  19. 19. How many cases should pass? /100
  20. 20. If professionalism is not to be precarious, then would we not see the professions outperform the nonprofessionals?
  21. 21. Non-solicitors vs Solicitors 100 80 60 40 60 Getting a Result 40 20 0 20 -20 0 -20 Solicitors Non-Solicitors Very good or better Poor or worse 0% Solicitors 5% 10% Non-Solicitors 15% Good ir better Poor or worse -40 Solicitors Non-Solicitors
  22. 22. 3 more studies… Specialist LA SW Contracts Generalists awareness of legal issues when they decided to advise Wills Solicitors -30% Solicitors -68% Solicitors -22% NFPs -14% NFPs -74% Will writers -21%
  23. 23. /100?
  24. 24. Prosecutors HM Crown Prosecution Service Inspectorate (2009), Thematic review of quality of prosecution advocacy and case presentation
  25. 25. Prosecutors HM Crown Prosecution Service Inspectorate (2009), Thematic review of quality of prosecution advocacy and case presentation
  26. 26. Better off without lawyers?
  27. 27. Gulati and Scott "Most of what we mark up and send round, we don't understand at all."
  28. 28. Our solutions are the most relevant Our knowledge is state of the art
  29. 29. •Take Instructions •Draft Contracts 1 2 •Negotiate Terms •Redraft Contracts •Finalise Contract •Put it in a file 3
  30. 30. Systemise/monitor contract terms Monitor/structure negotiations (playbooks) Automate processes (coding) • Take Instru ctions 1 • Draft Contr acts 2 • Negot iate Terms • Redra ft Contr • Take acts Instru ctions 1 • Draft Contr acts 2 • Take • Negot Instru iate ctions 1 Terms • Draft • Redra Contr • Finali ft acts se Contr Contr 3 acts act • Put it in a file 2 • Finali • Negot se iate Contr 3 Terms act • Redra • Put it ft in a Contr file acts • Finali se Contr 3 act • Put it in a file • Take Instru ctions 1 • Draft Contr acts • Take Instru ctions 1 • Draft Contr acts 2 • Negot iate Terms • Redra ft Contr acts 2 • Negot iate Terms • Redra ft Contr acts • Finali se Contr 3 act • Put it in a file • Take Instru ctions 1 • Draft Contr acts • Finali se Contr 3 act • Put it in a file • Take Instru ctions 1 • Draft Contr acts 2 • Negot iate Terms • Redra ft Contr acts 2 • Negot iate Terms • Redra ft Contr acts • Finali se Contr 3 act • Put it in a file • Finali se Contr 3 act • Put it in a file • Take Instru ctions 1 • Draft Contr acts 2 • Negot iate Terms • Redra ft Contr acts • Finali se Contr 3 act • Put it in a file 2 • Take Instru ctions 1 • Draft Contr acts • Take Instru ctions 1 • Draft Contr acts • Negot iate Terms • Redra ft Contr acts 2 • Negot iate Terms • Redra ft Contr acts • Finali se Contr 3 act • Put it in a file • Finali se Contr 3 act • Put it in a file
  31. 31. Market Self Profession Public State
  32. 32. Design – Decide –Evaluate • Online Dispute Resolution that resolves the majority of cases without any human agency • An algorithm predicts US supreme court outcomes – using just 6 Variables – better than experts • Machine learning software better at discovery of evidence tasks than humans • Software which tells you where to pitch your offer • AI and IBMs Watson – if it can help diagnose cancer….
  33. 33. We are more ethical?
  34. 34. 35% trust lawyers, 30% do not 100% 80% 60% 40% 20% Trust Don’t trust 0% -20% -40% -60% -80%
  35. 35. How could you? How do you?
  36. 36. 21% think lawyers act in the best interests of their client Act in the best interest of consumers 45% 40% 35% 30% 25% 20% Act in the best interest of consumers 15% 10% 5% 0%
  37. 37. 20% think lawyers act ethically Act ethically 50% 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% Act ethically
  38. 38. A capacity for sophistry…
  39. 39. A general professional regard? • there is a fundamental quality inherent in this profession of integrity, ethics, and ideals and we are all very client serviceoriented. We put at the forefront the needs of our clients. • James Schiro, then CEO PWC 47
  40. 40. • ―We are professionals that follow our code of ethics and practice by the highest moral standards. We would never be influenced by our own personal financial wellbeing.‖ • Gary Shamis, American Institute of Certified Public Accountants
  41. 41. Does thinking of oneself as a professional make one more ethical? • Maryam Kouchaki, Professionalism and Moral Behavior: Does a Professional Self-Conception Make One More Unethical?
  42. 42. Bar Code of Conduct • [Barristers] must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person...
  43. 43. You must observe your duty to the court in the administration of justice
  44. 44. Interesting work Status/Money Doing good
  45. 45. Zeal too strong? • Reaching the top • PEP and other indicators • Hourly rates • Business focus • 'client first was bred into me'.
  46. 46. Does money affect the way we think?
  47. 47. The money prime
  48. 48. Client first… Putting the client first was bred into me. The regulatory objectives set out in the Legal Services Act serve to remind us of (and enforce) our higher duties, to the rule of law and the wider public interest
  49. 49. Client first… …but from day to day the principal question in the mind of a solicitor will always be, 'what is best for this client?' That is what it means to be a professional and it is where we differ — or are supposed to differ — from people in other walks of life. It is not a question of "boxticking", for we are trustees of the values we have inherited, with a duty to future generations. The Rt Hon the Lord Hunt of the Wirral MBE
  50. 50. Where two or more Principles come into conflict • the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice.
  51. 51. Hidden biases
  52. 52. Framing… why might this be important? • ‗‗This research project is being conducted to advance the ideals and aspirations pursued by applied social science.'' • ‗‗This research project is being conducted with strict adherence to the standards and obligations required of applied social science.'‗
  53. 53. How commercial lawyers see their role • ―always make sure that the client …understand[s] the law. I think they also need to understand what the law is trying to achieve, so that if there is a grey area they know the correct way to interpret it.‖
  54. 54. Grey Discomfort ―Ill-advised activity by some senior managers…‖ and ―the demands of management to do certain things, which …hover on the edge of illegality.‖
  55. 55. Managed dissonance… ―[O]k, you‘re not really being asked to make it happen but you‘re being asked to kind of... brainstorm these ideas which you feel deeply uncomfortable about, but which you kind of have to go along with because the top management has kind of given this undertaking to do everything it can to help….‖
  56. 56. What kind of unlawfulness is okay? ―non-criminal” activity ―sort of on the edge of commercial practice” …. When you‘re advising a best course of action which isn’t criminal, it’s just commercial, they can choose to ignore you, and you‘re an employee.‖
  57. 57. Public, client or firm interest? ―I would say that the firm that I work for is primarily focused on its own commercial interests and I think it would argue that it‘s by placing importance on the other two that that is going to be best achieved.‖
  58. 58. Overbilling a client ―... well I know what they will do [laughs] …is keep their mouth shut, and not look like idiot... because …they don‘t want to lose the firm money and look like people who want to give it away. … you do that at some risk to yourself…‖
  59. 59. Promotion or compliance? I don‘t think I‘ve ever come across any support or encouragement on [the ethics] front. …it‘s assumed that you‘ve …gone through your ethics training …and you are meant to know it all. Nothing has ever, really ever, been said to me …from the partners or in terms of training that in any way encourages it or supports it.
  60. 60. Where were the lawyers? • • • • • • Lehman needed that Opinion to argue for an accounting approach which reduced their leverage Linklaters advised that Repo Transactions were ‘true sales’ (they were at English Law) There were other tests Lehman needed to apply Lawyer’s advice used by Lehman’s to give impression the tests had been passed. When only one had been Did/should Linklaters’ understand the consequences and do anything about it? Kershaw and Moorhead (2013) Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession
  61. 61. Nightjack • J hacks email, establishes who Nightjack is • Meets AB (in-house lawyer) • J establishes ID via legitimate means • DC Horton seeks Injunction • No cross-examination • AB drafts injunction • Affidavit implies, or states, J began search process legitimately • Sceptical opponents do not take the point
  62. 62. Rupert Murdoch @ Leveson • I think the senior executives were all informed, and I -were all misinformed and shielded from anything that was going on there, and I do blame one or two people for that, who perhaps I shouldn't name, because for all I know they may be arrested yet, but there's no question in my mind that maybe even the editor, but certainly beyond that someone took charge of a cover-up, which we were victim to.... 75
  63. 63. Some other cases with questions
  64. 64. Our regulation is optimal?
  65. 65. Our regulation is optimal? Market Self Profession Public State
  66. 66. LS Regulatory Review • lay membership of the approved regulators; • separating the representative and regulatory functions of the approved regulators; • opening up the market to new business structures and/or greater flexibility • the handling of consumer complaints. • consumer panels
  67. 67. • Overly complex • Insufficiently independent of government • Some support for scaling back regulation • LSB overreaching or overly prescriptive
  68. 68. Key faultlines • Independence of regulators from the professions • Single regulator or multiple regulators?
  69. 69. Market Problems Cost Quality? Access
  70. 70. Quality vs cost who decides and how?
  71. 71. Regulatory Techniques Entry Education and training Fit and proper person tests COLP/COFAs Systems and internal processes Consumer information CPD
  72. 72. Regulatory Technologies Insurance Specialisation Panels Quality marks Codes/outcomes/rules Risk profiling, monitoring and supervision In-house complaints procedures
  73. 73. Regulatory Approaches Legal Ombudsman Compensation/costs reduction Investigation Informal resolution Censure / Fine / Suspension / Strike Off
  74. 74. SRA Benchmarking Survey 2011
  75. 75. SRA Benchmarking Survey 2011
  76. 76. SRA Benchmarking Survey 20101
  77. 77. Some final words… • What we need is? o a deliberative science policy culture, o emphasising reflexive learning and responsiveness; o an open organisational culture, emphasising innovation, creativity, interdisciplinarity, exper imentation and risk taking; o top-level leadership and commitment to public engagement and to taking account of the public interest; and o commitments to openness and transparency. o Stilgoe et al
  78. 78. Some final words… • What we need is? o a deliberative science policy culture, o emphasising reflexive learning and responsiveness; o an open organisational culture, emphasising innovation, creativity, interdisciplinarity, exper imentation and risk taking; o top-level leadership and commitment to public engagement and to taking account of the public interest; and o commitments to openness and transparency.
  79. 79. Some final words… • What we need is? o a deliberative science policy culture, o emphasising reflexive learning and responsiveness; o an open organisational culture, emphasising innovation, creativity, interdisciplinarity, exper imentation and risk taking; o top-level leadership and commitment to public engagement and to taking account of the public interest; and o commitments to openness and transparency.
  80. 80. Some final words… • What we need is? o a deliberative science policy culture, o emphasising reflexive learning and responsiveness; o an open organisational culture, emphasising innovation, creativity, interdisciplinarity, expe rimentation and risk taking; o top-level leadership and commitment to public engagement and to taking account of the public interest; and o commitments to openness and transparency.
  81. 81. Some final words… • What we need is? o a deliberative science policy culture, o emphasising reflexive learning and responsiveness; o an open organisational culture, emphasising innovation, creativity, interdisciplinarity, exper imentation and risk taking; o top-level leadership and commitment to public engagement and to taking account of the public interest; and o commitments to openness and transparency.
  82. 82. Some final words… • What we need is? o a deliberative science policy culture, o emphasising reflexive learning and responsiveness; o an open organisational culture, emphasising innovation, creativity, interdisciplinarity, exper imentation and risk taking; o top-level leadership and commitment to public engagement and to taking account of the public interest; and o commitments to openness and transparency.
  83. 83. Thank you for listening

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