Tag Archives: Legal Profession

Human Rights Law & Personal Injury Claims

Recent years have seen several far reaching reforms enacted to the UK justice system.

Such reforms have encompassed legal aid funding, legal reform, and an emphasis on arbitration and mediation in courts and tribunals, which will further impact upon the provision of justice. 2014 also saw the implementing of new contracts for police station solicitors; the tender process, and the actual contracts, were widely condemned and criticised by many in the legal sector.

The overall impact of such reforms has been to essentially deny justice to many thousands of average, households in the UK, a fact which the legal sector has raised in no uncertain terms. Most of the legal reforms are ultimately (but not entirely) a simple cost cutting measure, amidst reduced public funding and a slow, painful economic recovery. However, to an extent, the legal reforms, and the ensuing limited access to justice, are, ironically, potentially illegal.

Human Rights law, both domestic and EU, requires and allows for a full and impartial trial, with adequate and proper legal representation throughout any legal proceedings. Articles 5 and 6 of the European Convention on Human Rights (ECHR) addresses this, as does the Human Rights Act (1998). The recent legal reforms mentioned, however, seriously challenge that fundamental legal and human right.

A good example here is employment law. This is an increasingly touchy and emotive area of law as job security and zero hours contracts are a major current legal issue. Aside from that, employers have a responsibility for the health and safety of their staff, visitors and contractors in the workplace. If health and safety rules and regulations are breached, there can be accidents and injuries at work. Such accidents can range from a few cuts and blisters, to sprained ankles, to broken limbs, to long term chronic medical conditions developing. The result of an injury at work can be to cost the business greatly in productivity and lost working hours, as well as on-going support for injured employees; HSE figures for 2012/13 show that the estimated cost of workplace injuries and health issues arising was just over £14 billion. Of course, economics aside, that is nothing compared to the human cost for those actually injured.

The law enshrines the right of the injured party to make such an injury at work claim, under tort and civil law. Amidst such legal reforms, it would be very hard for the average employee to take their legal claim to court. Although the (2014) average wage nationally in the UK was £26,500, inflation, debts and the rising cost of living severely reduces the amount of money an average employee would have fund a legal case. Further, the great majority of unskilled workers (often in industries prone to severe workplace injuries) actually earn more in the £10,000 – £13,000 bracket (2014 figures), or less. Amidst the legal reforms, bringing a simple workplace injury claim to court is therefore far beyond the means of the average employee.

In the personal injury sector, however, many cases continue to be funded by Conditional Fee Agreements (CFA). With a CFA, litigants only pay their lawyers on the understanding that their case will be won, and that compensation will be awarded. Litigants do not pay if their case is unsuccessful. If it were not for the system of CFA funding, many personal injury litigants, be they injured at the workplace or indeed elsewhere, would simply not be able to obtain the justice that they are entitled to under law.

Employment law, and personal injury law aside, there are many areas of law (such as family) where it is simply too costly in time, effort, procedure and money, for people to obtain justice- contrary to human rights law.

The legal sector has tried to protest this, and to raise this very serious concern. The government is more concerned with the Budget and economic recovery, as opposed to such legal niceties. The fact remains that the reforms are potentially illegal, as they deny justice to many, in breach of human rights law.

One government response has been to put in the 2015 Queen’s Speech plans to reform and replace current human rights legislation with a new Bill of Rights or similar. In that fashion, with new human rights principles, the government can no longer be said to be acting in breach of current human rights provisions that enshrine the right of all to seek a legal remedy in court.

Call for Better Protections From “Unlawful” Government Snooping

Snooping

The government has admitted to having “unlawful” policies on intercepting communications that take place between lawyers and clients. The admission has prompted a call from professional bodies in the legal industry for better protection of professional privilege.

According to emails sent by the Treasury Solicitor’s Department and released by Reprieve, a charity specialising in legal activism, “since January 2010 the policies and procedures for interception/obtaining, analysis, use, disclosure and destruction of legally privileged material have not been in accordance with human rights legislation.”

The government admitted that its policies were unlawful in the course of the Investigatory Powers Tribunal’s proceedings. Specifically, it made the admission in submissions as the tribunal hears the case brought against the government Abdul Hakim Belhaj and Fatima Boudchar, two Libyans who were returned to their home country in 2013 as part of a joint UK-US operation. Filing their case in 2013, Belhaj and Bouchar claimed that confidential communications with their solicitors had been intercepted by the UK’s intelligence service while they were detained. The government was forced to admit in November that this was indeed the case.

Cori Crider, the lawyer who is representing Belhaj and Boudchar, accused the government of allowing intelligence agencies an excessive degree of freedom to intercept conversations between lawyers and clients.

The Law Society was also critical of the government following the admission that policies were not lawful. The Society said that the documents released to the tribunal demonstrated that the laws currently in place to protect professional privilege are not sufficient.

In a statement, the Society said: “The absence of explicit protection for legal professional privilege in the Regulation of Investigatory Powers Act 2000 (RIPA) has been of longstanding concern to the Law Society and we have raised our concerns with the Home Office.”

The statement went on to say that “Legal professional privilege is essential to the administration of justice and a pillar of rule of law.” The Society stressed the importance of allowing people to be open and honest when discussing matters with their lawyer without being afraid that the information revealed in these conversations would later be passed on to a judge or brought up in the courtroom.

The Bar Council was similarly critical, with bar chairman Alistair MacDonald QC saying: “Spying on conversations protected by legal professional privilege is fundamentally unacceptable and constitutes a breach of the rule of law.”

Recent legislation introduced to combat terrorism, he said, had done much to undermine “this centuries-old principle.”

Research Highlights Stress Problem in Legal Profession

Recent research from Lawyer 2B has identified huge amounts of stress among legal professionals factors behind the problem include long hours, poor managerial support, and difficulty creating an effective work-life balance.

In recent times, legal firms have made efforts to improve the experience of staff when it comes to stress. Programmes have been introduced by many firms to help maintain the mental health of employees. Hagan Lovells pledged to carry out a review of its policies around the management of employee stress after an IP partner committed suicide. This resulted in the firm’s counselling service being moved on-site. Clifford Chance are another example, having announced a firm-wide rollout of its trainee anti-stress programme in April. Despite such moves, however, the research suggests that stress continues to be a major issue for professionals in the industry, particularly young lawyers.

The survey was carried out in April and looked at a number of factors to get a picture of the state of the industry. Among the areas examined were a number of key stress-inducing factors, working hours, perceived employer commitment to providing a work-life balance to employees, and the stress-busting initiatives that firms put into place.

One interesting and, for some, unexpected finding of the survey was that stress is not necessarily linked to long hours. However, many respondents found that high volumes of work were a key factor at causing stress, and long hours were certainly prevalent within the industry. 36% of respondents reported a typical working week of 46-55 hours and 20% said they worked between 56 and 65 hours. A further 11%, mostly working in a corporate, finance or litigation practice, reported working 66 hours or more in a week, and 2% exceeded 75 hours.  The longest hours are worked by Magic Circle lawyers across all seniority levels.

Nonetheless, support from the firm for which they work was a far more central factor than working hours. The worst-performing firms in this regard were generally those from the US. Of those lawyers working for a US firm in London that responded to the survey, 70% felt that their management did not make any real effort to encourage a work-life balance.

Given the various recent moves by major city firms to combat stress, the discovery may come as a disappointment to some. The problem could potentially be one of awareness. According to the findings of the survey, a mere 17% of lawyers are aware of their firms’ stress management initiatives.

Male Lawyers Over 25 Earn More than Female Counterparts

Female Lawyer

Concerns about a pay gap within the legal industry have been raised following the release of research by Eversheds, a global legal firm. Over the age of 25, female lawyers earn significantly less than their male counterparts.

Interestingly, female lawyers under the age of 25 actually earn more than their male contemporaries. However, this is quickly reversed, and after the age of 25 takes the form of a more conventional pay gap with men earning more than their female contemporaries.

Over the age of 25, female lawyers earn 11% less than men. By the time they reach their mid-30s, they earn a full 25% less than their male colleagues in the same age group. This has led to fresh concerns about whether the legal industry is doing enough to support female talent, and to retain skilled women within the industry.

The same research examined the long-term career plans of lawyers. This aspect of the study revealed that only 34% of women intend to stay in a law firm for their remaining career, and only 57% aspire to become a partner in a law firm.

It is possible that this pay gap contributes to the lack of satisfaction among female lawyers with their profession. However, it is worth noting that the study also found men were dissatisfied with the legal profession, albeit to a lesser extent.

Reasons for dissatisfaction with the legal profession for both genders include unrealistically long working hours and a resulting poor work/life balance. Many lawyers stated an intention to become established enough within the legal field to seek an in-house role. This is generally considered an option that offers greater flexibility, more manageable hours, and a better work/life balance than working within a law firm.

Indeed, working hours seem to be a key concern that keeps people of both genders from aspiring towards a partnership. Trainees have to put in long hours, but there is a general feeling that this should give way later in your career and that former trainees should be rewarded for their work with more manageable hours. Instead, however, there is a general feeling that becoming a partner involves losing most of your free time to work.

The lack of flexibility and poor work/life balance is heightened for women by the industry’s lack of flexibility regarding childcare. This has led many women within the industry to find that, in spite of promises to the contrary, the idea of continuing to work on a suitably flexible basis after giving birth is difficult or impossible to achieve.

Lawyers Unite to Oppose Legal Aid Cuts

legal-aid-protests

 There has been debate around the possibility of cuts to legal aid for some months, with many people opposing the impact these cuts could have on ordinary people in need of legal representation. Now, lawyers and legal groups with a professional interest in the area of legal aid have formed a new group to oppose the potential cuts.

The new group, known as the National Justice Committee, and it is made up of a number of member organisations. These include the London Criminal Courts Solicitors’ Association, Criminal Bar Association, Criminal Law Solicitors’ Association, Justice Alliance and the Criminal Law Solicitors’ Association. The Bar Council and the Law Society will also be in attendance, but in the capacity of observers rather than participators.

A statement was issued to announce the formation of this group. The statement said that the committee “notes the devastating effects of legal aid cuts and restrictions in social welfare law, family law and immigration law.”

The statement went on to say that the new committee “opposes all further legal aid cuts and proposals to weaken the ability of the ordinary citizen to challenge unlawful decision-making.” It suggested that if the cuts to legal aid go through, they “will diminish our social fabric by reducing access to justice.”

The group has also described the proposed cuts as “unnecessary and counter-productive.” It has claimed to be able to provide evidence in support of claims that these cuts would not ultimately result in savings, and that there were ways that savings could be achieved without making such cuts.

During the months that these issues have been under discussion, concerns have emerged over the sufficiency of legal aid even in its current form. For example, in the later part of 2013 it emerged that legal aid remains inaccessible to over 50% of domestic violence victims. Strict rules around requirements for certain forms of “qualifying evidence” prevent many victims from qualifying for legal aid. There are concerns this may lead to them being unable to seek legal assistance at all, and perhaps feeling unable to escape abusive relationships.

When such concerns are leading many to believe that legal aid should be rolled out to more people, concerns about the effects of cutting the available funds become even keener.

The new National Justice Committee now intends to set a date for a day of protest action, expected to take place sometime in late February or early March. There was previously a half-day of protest action held earlier this month.

Legal Education & Training – A Missed Opportunity

The long awaited report into legal training and education was released recently.

After being commissioned by the three regulatory bodies of the legal profession, the SRA (Solicitors Regulatory Authority), the BSB (Bar Standards Board) and the ILEX Professional Standards (for Legal Executives), and after several years, Professor Julian Webb and his team submitted their initial report into legal services education and training (LSET) before the Big Three regulators.

The findings? The breathtaking and groundbreaking changes?

As Prof. Webb stated at the beginning of the report, the current LSET system provides  “a good standard of education and training, enabling the development of the core knowledge and skills needed for practice across the range of regulated professions.” Such an approach summarises the findings.

LETR found that there were no grave issues for concern, and no drastic changes were needed. However, when the study was commissioned in 2011, and indeed today, many in the legal profession felt that, although not dreadful, there were some issues with LSET that needed to be addressed.

Not according to LETR. Admittedly, some issues and concerns were raised (ethics, the role of paralegals, more standardised training and other minor issues), but no great deficiencies were found in the current system.

There is a sense amongst commentators and those in the legal profession that the report lacked ‘bite’ and impact, and that, essentially, this was a missed opportunity to effect change in LSET, and to address what issues there were. With a collective shrug of their shoulders, commentators have accepted it for better or worse. On his Lawyer Watch blog, Richard Moorhead addresses LETR very succinctly (LETR: Why everyone is happy and no one is smiling).

The report does identify areas of concern- it does make recommendations for action. However, it falls short of making definitive, sweeping recommendations, and does not advocate any form of definitive action.

LETR is very vague; it is almost as if it is an united guest trying to make itself inconspicuous. It mentions ‘issues’ and ‘points for concern’, but fails to address what those are. It then further fails to suggest changes to tackle those issues.

The Big Three regulators, in their response, have welcomed the report, and say that its findings will be taken into consideration. It must be noted that none of the regulators are bound to accept and implement the report’s findings. Essentially, it is business as usual for the regulators- especially as little has changed. Law schools have taken a similar line in response.

There are some radical suggestions, though. The suggestion for paralegals to be able to practice law for staters, as is removing wills and advocacy from the LPC. Given the muted reaction to the report overall, it is unlikely that these bold steps will be given the consideration that they deserve.

The report highlights that fact that there is nothing wrong with LSET in this jurisdiction. That is beyond the point; also, such knowledge was well known. The report did little to identify and alter what issues there are.

Everyone is happy with the outcome of the LETR, despite the issues with gathering the research, and several delays. However, no one is thrilled with it. The general feeling is one of business as normal, and very much a missed opportunity.

 

Guest Article written by Kate Matheson of NoWinNoFeeClaims.co.