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Sunday, 18 October 2009

In Defence Of Lawyers

Last week a "Flash Mob" demonstrated outside the offices of that well-known law firm, Carter-Ruck.

I know at least a couple of people who went along to it. However, I see the protest as misconceived.

The people who should have been protesting outside those offices were Trafigura executives, for they may have something to protest to Carter-Ruck about.

And the Flash Mob in turn should have been protesting outside the head office of Trafigura, or the lawcourts, or Parliament.

For, although it is always important to blame and criticise lawyers, it is also important to blame lawyers for the right things.

I know many liberal and critical thinkers who suddenly become thoughtless and lazy the moment they realise they can blame lawyers.

This approach may be satisfying and fun, and usually prompts an easy laugh, but it is not an example of liberal or critical thinking.

First, for every lawyer one wants to blame, there is a client. In this relationship, the lawyer is not necessarily passive, and one can indeed imagine the crafty lawyer leading a client on in a misconceived direction. But, the ultimate position is the same: a lawyer carries out the instructions of the client.

And here we must note that Trafigura is not a shrinking and impressionable litigant in person; it is a multimillion pound international corporation. Even if Carter-Ruck were able to provide options and tactics which Trafigura executives and in-house counsel did not think of themselves, Trafigura knew exactly what it wanted to achieve.

Second, for every legal manouvre one disdains, there is the law. Again, this is not to say that the law is entirely prescriptive. The crafty lawyers by definition know how to craft the law. But a lawyer and client can only get away with what the court will let them, and it is the court that enforces and applies the law, and not the lawyers.

And it is here we must note that (to my reckoning) at least three different High Court judges upheld the superinjunction granted in respect of the now published Minton Report. In obtaining this injunction, Carter-Ruck were presumably carrying out their client's instructions and ensured their client had whatever protection of the court's jurisdiction which their client was (it would appear) entitled.

The known unknown in all this is the exact legal advice which Carter-Ruck gave to Trafigura. For clients, especially those with determination and anxiety, can go flatly against legal advice.

So, because of this sometimes triangular relationship between lawyers, clients, and the law, it can sometimes be difficult to identify the exact target for blame in any given legal controversy.

If Carter-Ruck had not acted for Trafigura in this matter, I can immediately think of a dozen other law firms that would have done.

So why should Trafigura executives perhaps go and protest outside the offices of Carter-Ruck? Especially as it may well be that Carter-Ruck advised against a course of action, and their client instructed them to do it anyway.

Well, it does rather appear that Carter-Ruck, in carrying out their client's instructions, were tactically outwitted and wrongfooted all through the Trafigura affair by The Guardian.

And a basic rule of UK media litigation is not to be outwitted and wrongfooted by The Guardian.

But is it my suggestion that lawyers are never really to blame?

Are lawyers merely servants, who are only carrying out orders?

And, are they to be criticised only if they are incompetent in executing those orders?

It was contended on Twitter this week that only carrying out orders is the Nurembourg Defence and that lawyers accepting instructions are in the identical moral position.

(My immediate rejoinder to this was that it actually took lawyers of the great calibre of Sir David Maxwell-Fyfe and Sir Hartley Shawcross to destroy those defences when they were spuriously employed. Indeed, it was watching footage Maxwell-Fyfe's destruction of Goering in cross-examination that first made me want to be a lawyer.)

I do not accept that the moral positons are identical.

Within a liberal democracy, where there is the rule of law, every party to any legal case is entitled to legal advice and representation. This even includes the Crown being properly advised and represented when prosecuting sensitive criminal cases; it even includes international oil firms and chiropractic associations.

Any person - human or corporate - in a liberal democracy is entitled to the protection and enforcement of whatever legal rights they may have. This is the fundamental right of access to a court and as such is a neccessary component of the principle of justice.

(This principle may not have the same application under a totalitarian regime, where there is no democracy or rule of law, and so counter-examples from such regimes do not logically diminish this principle.)

And the complexity of both substantive and procedural law means that the right of access to a court is meaningful often only if a person has legal advice and representation. The person may not want such advice or representation, but they are entitled to have it.

In a liberal democracy, it is not for lawyers to decide whether a person has effective access to a court for determination of their rights and obligations.

All this can be perhaps illustrated by a recent example.

Someone [K] was accused of a very serious matter; it was a health and safety issue. In confidence, so as to properly prepare their defence, [K] went to some specialists for advice, which is entirely proper. One specialist provided an adverse analysis on incomplete information; but many other specialists did not. Clearly that one adverse but provisional report would, if published and loudly publicised, prejudice any trial of [K]. And so lawyers were rightly asked by [K] to prevent publication of this confidential report so as to ensure that any trial of [K] was fair.

There is perhaps nothing that unreasonable in any of this; but this is actually one way of characterisng the Trafigura affair.

In a liberal democracy, if the role of lawyers is to advise and represent their clients, the role of the media (including bloggers) includes ensuring that matters of public interest are put before the public; but it is not for the former to do the work of the latter.

The legal profession is to blame for many things, but not for everything.

It was not a lawyer that dumped toxic waste and wanted no one to know. It was not Carter-Ruck that granted and upheld the superinjunction, but the High Court applying the law as it currently stands on at least three occasions.

Don't be fooled by those who will encourage you to concentrate on the moral role of the lawyer in such matters; think critically, and you may find it a little more complicated than that.



COMMENTS MODERATION

As always, no purely anonymous posts will be published: always have a link or a name. And no unlawful stuff...

18 comments:

Kris said...

People need to understand that litigation lawyers are hired guns - simple as that.

In our adversarial system, it is presumed that the other side will put their argument forward and justice will prevail.

The above, of course, presumes an, "equality of arms".

What irritates me is that the court seemed so willing to take whatever Trafigura's lawyers said as gospel. Nobody had the chance to challenge the injunction.

But what really got me was the sheer temerity of Carter Ruck telling Parliament what they could and could not debate - along with the rather wet response by Gordon Brown that super-injunctions were "troubling".

Get with it, Gordon. Apparently, it can no longer be taken as read that Parliament can debate whatever in damn well pleases, that the Press is free to report such proceedings and that it is not open for the courts and/or lawyers to tell Parliament what it can and cannot discuss.

I would invite the Speaker to carry on with the proposed debate this coming week and for this Nation to assert the peoples' right to transparent government.

But getting back to the lawyers. They know what they're doing and our friends would have known they were proposing to chip away at our system of government. Some may say that's part of being a hired gun - and with the Bar, it certainly is. But there are limits. As Denning said:

"A barrister cannot pick and choose his clients. He is bound to accept a brief for any man who comes before the Courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee.... he must accept the brief and do all he honourably can on behalf of his client. I say all he honourably can because his duty is not only to his client. He has the duty to the Court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes an allegiance to a higher cause. It is a cause of justice and truth. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even though that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the Court. The Code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it he is offending against the rules of his profession and is subject to his discipline".

Whether or not you think lawyers these days follow[ed] the Code is another matter....

Ateisten said...

Maybe it helps if you think of lawyers as plastic surgeons, and clients as Jocelyn Wildenstein.

Benjamin Gray said...

Kris, at no time did Carter-Ruck tell Parliament what it could and could not debate.

Tony Lloyd said...

I think there are two more “faults” to take into consideration. One may apply to lawyers and is quite common across the professions. The other does apply to lawyers and seems to be lawyer specific.

I have worked in Recruitment and noticed a distinct reluctance to advise clients. I’ll take an example from way back in a Recruitment Consultancy that does not exist anymore to protect current people. A company-wide email was sent around asking if anyone knew of an “exceptional” tax manager for a client who was willing to pay £50k. There were two reasons for company wide email. Firstly, another nearby consultancy had two tax manager positions they were recruiting for both paying £80k and any “exceptional” tax manager who wanted a move was applying for those. Secondly the consultant had not turned round to the client and told them “you will not get what you want for that amount”.

This seems to be a common failing in the legal profession. There seems to be a short supply of:

“No, X, if you sue Y for libel you’ll get half the internet calling you a bunch of complete (and utter) [redacted]. And if you do sue Y then you must make sure we see any press releases before they go out”.

Or

“Stop the reporting of Parliament? Are you mad? It’s the single best way to make sure as many people as possible know who you are and what it is alleged you have done. Way to prejudice your own case, guys.”

It may, of course, just seem to be a problem, because we only hear about it when it happens. But the second one really is a problem and, to illustrate that, I go back to when Wayne Rooney was awarded “Young Sportsman of the Year”. An Everton fan site stuck a picture up of Rooney receiving the award. Everton’s lawyers sent a take down notice.

A fan explained why. Rooney was now a “hot property” and his mug was worth a lot of money. If the club/Rooney weren’t to lose control over the image rights they had to be seen to enforce them.

But the lawyers didn’t explain why. They just sent the formal “take it down or else” letter. Neither they, nor the club, sent “Hi chaps. Look now that Wayne is a hot property the club has to enforce image rights. So we’ve got to ask you to take down that photo. Do you mind?” Even if you have to use a certain form of words, you could put a covering letter in “Hi chaps, etc… Of course we have to send you a legalese letter, this is attached”.

Or take the instance of Ben Goldacre who put an entire radio show on his site. Is it too much to ask that the lawyers/radio station send a quick note “Ben, FFS, the whole show? Come on, play the game.”?

Why don’t lawyers communicate like normal human beings? (With the honarable exception of our host, whose letter to the GCC was, well, quite a cheery one really.)

Richard Wilson said...

Thanks for this thoughtful post, David. As one of those involved in this week's Carter Ruck protest I'm happy to debate the wider questions that you rightly point out such tactics raise.

In my view, companies who abuse human rights and/or pose a threat to democracy need to be named and shamed. This would surely include an oil company whose negilence led to 18 deaths and 30,000 injuries, and who then fought tooth and nail to silence media coverage of the issue. But it would also, I believe, include a legal firm who sought to advance their client's interests by exploiting a demonstrably unjust law in order to suppress the right to freedom of speech. Should such a firm then seek to do the same by using similarly unjust laws to attack the fundamental underpinnings of the liberal democracy in which they exist, it is then time, in my view, for ordinary people to get on the streets and challenge them directly.

Carter Ruck this week sought, on behalf of their client, to use the law to prevent media coverage of Parliamentary proceedings. They then wrote to both the Speaker of the House of Commons, and every MP, in an apparent attempt to stop next week's debate on freedom of speech. This was not the normal behaviour of a law firm in a healthy liberal democracy. In my view, these were political actions, and they were political actions characteristic of a dictatorial regime, not a free and open society. If a law firm starts playing politics (whether or not they do so on the instructions of a client), I believe that they then become a legitimate target for peaceful political protest.

Many people were killed, tortured or imprisoned to win and defend the democratic rights that we still largely enjoy in this country. I believe these freedoms are now in enormous danger, and that our democracy has already been outrageously degraded by the attacks we've seen on civil and political rights over the last decade. If we want to remain a largely liberal and democratic society, rather than sliding slowly towards some form of corrupt pseudo-democracy, I believe that we will need to start mobilising political action now against all those now chipping away at our democratic traditions - including, where necessary, law firms.

I don't believe there is an absolute dividing line between liberal democratic societies and tyrannical ones. A largely liberal democracy may have unjust laws on its statute books, such as the law which led to the prosecution for homosexuality of one of our national heroes, Alan Turing, within living memory of our grandparents' generation. More recently, it was still possible to be prosecuted in this country for "blasphemy". Today, someone who writes an entirely truthful article about another living person can be spuriously prosecuted under a libel law which, due to the financial cost of obtaining adequate legal representation, effectively denies many defendants their right to a fair trial.

Where a lawyer chooses to collaborate with the enforcement of an unjust, undemocratic law, they cannot, in my view, insulate themselves from the moral consequences of that choice, even if they are working within a still-largely-democratic society, even if they are acting on the instructions of a client.

I fully agree that cheap shots at the entire legal profession are lazy and unhelpful, but in a way that's exactly my point. Lawyers are (notwithstanding those cheap shots) human beings. Human beings are moral agents. Moral agents make choices for which they are morally responsible, including choices within their professional lives. Perhaps it's true that some other lawyers would have done exactly the same as Carter Ruck did this week, but I know that there are many others who would have refused, and would have done so not on legal grounds but on moral ones. In a situation where, as we are now seeing, what is legally acceptable begins to drift away from what is morally right, the role of individual conscience becomes crucially important.

Niklas said...

I agree entirely that the Twitterers' protest should have been outside Trafigura head office - except that it could equally well have been outside the High Court.

It was not Carter-Ruck that granted and upheld the superinjunction, but the High Court applying the law as it currently stands on at least three occasions.

Quite so: the problem lies in the courts. I would challenge the idea that the High Court was "applying the law as it currently stands", though. These three judges seem to have ignored the statutory rights of us citizens to follow parliamentary business; it is for the Speaker to enforce the sub judice resolution. Had Mr Speaker Bercow thought that mentioning the Minton report would prejudice Trafigura's trial he was duty bound to reject the question, which would have stopped it appearing in the order paper. Thus it would not have had the protection of parliamentary privilege.

Personally I would not have taken on Trafigura's case if I was the partner of a law firm, but then I am too squeamish to be a lawyer! Ultimately the problem lies with granting corporations legal rights that should be reserved for private individuals (i.e. the right to privacy), and refusing to acknowledge that the public has a legitimate interest in what public actors (state, corporation or chiropractic association) get up to - which in turn means that their right to have a protected reputation has to be balanced against other people's rights.

As for your example K, surely all relevant evidence must be supplied to the court? If the Minton report was an abberation then it would clearly be outweighed by reports based on more complete evidence. Surely confidentiality does not allow litigants to pick and chose what evidence they reveal? Doesn't the CPS have an obligation to provide the courts with all evidence gathered, even if some of it might help to exonerate a defendant?

Philip John said...

A good point about who the protest should have been directed at. Trafigura, Carter-Ruck and the courts have all invited protest at their actions.

Carter-Ruck may have just been "doing their job" but that's no excuse for what they've done. It was morally wrong to take that super-injunction to the courts in the first place. They should have refused to do that but didn't and as a result their reputation has been rightly tarnished.

There's a lot to be said for having good principles and sticking by them. If Carter-Ruck do have good principles they certainly didn't stick by them with Trafigura.

Kris said...

Dear Benjamin Gray

Oh yes it did.

http://www.guardian.co.uk/uk/2009/oct/15/carter-ruck-trafigura-parliament-injunction

http://news.bbc.co.uk/1/hi/uk_politics/8309359.stm

Matt Volatile said...

I dunno Jack... without legal muscle, Trafigrua could done have done what they tried to do

Do lawyers not have a moral responsibility to say "No" when a toxic-waste-dumping company wants to bury the evidence? Do partners not have a duty to do the right thing rather than chase the almighty dollar?

Sure, Trafigura are the real bad guys here. But the fact is that someone from that firm asked Carter-Ruck to make the bad press about their criminal, immoral, utterly despicable practices go away, and Carter-Ruck simply nodded and handed them a (presumably rather large) bill.

The Nuremberg defence - Carter Ruck were just doing their jobs - doesn't cut it for me here. Without the assistance and compliance of lawyers, Trafigura would have been exposed long ago. Why can't lawyers show a bit of backbone? A bit of courage and character? Why can't they tell these companies to get stuffed?

I have no qualms whatsoever about protesting Carter-Ruck, as it's quite clear from the cases they take on and the way in which they operate that they are willing to take on defending the "good names" of even the most heinous of characters, and in the most legally slippery of ways. The two lawyers who took on the case clearly weighed up their pay-cheques against the clear moral wrongs of a) supporting a company which killed hundreds of innocent people and injured perhaps generations more and b) of attempting to gag Parliament in the process. And they took the money.

That deserves condemnation, in my view.

John Collins said...

It may seem to Carter Ruck that they are being unfairly picked on but they have chosen to specialise in an area of law where bullies rule OK and they are invariably on the side of the bully.

Defamation law is largely "Common Law" or law made by judges who adopt previous cases as the precedents for decisions. They can only do that on the basis of actual cases put to them - there isn't a mechanism as far as I know for a "what if" case to be put to them that doesn't involve warring parties having an argument.

Here is where "equality of arms", or the lack of it, escalates the faults in the law in that the best, or best paid, lawyers will win more often than they should and precedent after precedent gets set in favour of the bullies so the law evolves in a wholly unsatisfactory way.

Then for every case that goes the distance there are hundreds where the innocent defendant has no option but to make a grubby little settlement because everything is stacked against him. Probably Eady, when he was a barrister, routinely churned out that advice to clients and he's forgotten to modify it now he's a judge.

If, as Kris said, Carter Ruck were motivated by justice and truth over and above their clients, or, to be more accurate, over and above their clients' money, and showed it by their actions, there would be a case for saying that they're being unfairly picked on, or that libel law in England didn't urgently need reform - and by statute.

But until then, whilst I won't personally be joining the demo, I have no sympathy for them in this context.

And lest anyone think it's just English lawyers I'm moaning about, remember the outrageous conduct of the recording industry lawyers in the US.

Andy said...

Whilst I agree that it's "a little more complicated than that" I find some of the defences troubling.

The notion that "If X doesn't take the job, a dozen other companies happily would" doesn't make taking the job the correct thing to do. The same argument could easily apply to drivers in a bank robbery, or a hit man - it doesn't make it right.

Although slightly different, it reminds me of a distant relative of mine who sold used cars. He defended selling lemons to old couples on the basis that "they're better off getting a lemon from me than from the guys down the road."

So, should I set up a homeopathy stand next week? Maybe chiropractic or reiki, or psychic readings. After all, if I don't I can think of a dozen other people who would.

Cavall de Quer said...

Is that footage of the Goering cross examination to be found anywhere? I'd love to see it.

Ben Murphy said...

On the one hand, I've read the letter from Carter Ruck defending their actions, and to me, it seems they make out a reasonable case. Of course, I'm not competent to judge, so for anyone who wants it, here's a link:
http://www.carter-ruck.com/Documents/Letter-Right_Hon_John_Bercow-141009.PDF

On the other hand, I do think I understand why Carter Ruck became the target of a protest. I don't know much at all about law, but Carter Ruck is one of the few law firms whose name means something to me. I very much doubt that the firm would exist were it not for the fact that it is possible to make a lot of money out of English libel law. People who choose to work for the firm, must be aware of this, and they are choosing to earn money that is paid for, in part at least, by the proceeds of libel cases. I realize that they don't only handle libel cases (I just checked their web-site), but I believe I'm right in saying that is the foundation of their success, and certainly of their prestige (or infamy).

If it is agreed that the current libel law is bad, then it is appropriate to petition parliament to reform it. But surely, it is also appropriate to protest against those who choose to make a living by extracting the maximum amount of profit from a system that needs reform, as well as those who bear responsibility for its continued existence.

Ben Murphy said...

Richard Wilson, you say: "They then wrote to both the Speaker of the House of Commons, and every MP, in an apparent attempt to stop next week's debate on freedom of speech. This was not the normal behaviour of a law firm in a healthy liberal democracy.In my view, these were political actions, and they were political actions characteristic of a dictatorial regime, not a free and open society."

"Dictatorial regime" just doesn't fit. In a dictatorship, the executive has power over other branches of government and the people. But Carter Ruck was not acting on behalf of Gordon Brown. "Plutocratic society" might be a better fit, because the worry is that money can buy rights for wealthy corporations that poor citizens cannot afford.

vp said...

Bravo, Jack. You express my thoughts exactly: the true culprits in this case are not the lawyers of Carter Ruck but rather Trafigura and the legal system of England and Wales.

However, I very strongly disagree with your (apparent) defence of prior restraint in the "K" example. You say that "that one adverse but provisional report would, if published and loudly publicised, prejudice any trial of [K]". So what? Maybe I'm biased by living in the US for the past decade, but the best remedy against bad speech is good speech, not censorship. In particular, prior restraint is to be avoided wherever possible.

Quite frankly, if it were permissible to censor any information that could potentially prejudice the jurors in some legal action, we would never publish any information about anything at all, ever.

Ben Murphy said...

I should qualify my previous comments before someone else does.

I said that Carter Ruck do not only do libel cases. What I should have added is that this particular case, although it does the use of a legal injunction to prevent a newspaper from publishing something. I suspect though that it is because of their connection to libel in the public mind that Carter Ruck has become a target for protest.

The difficulty is as follows. People who dislike the current laws and are worried about freedom of speech naturally want to target their anger at a visible opponent.

Only Parliament can reform the laws of libel, so they are the body one must petition for a change. However, although one may consider it negligent that the law has not been reformed, it is not as though anyone currently in Parliament voted for the law as it now stands. Parliament is not a suitable target for anger and frustration.

Carter Ruck, on the other hand, seems to exist as a corporation primarily in order to benefit from the law of libel. It is therefore a tempting target for anger and frustration - "See the kind of entity the current system has produced!" But a protest needs not just a suitable target, there must be some specific action that kindles the spark, so to speak.

It just happens that, in this particular case, the actions of Carter Ruck may not have been so sinister as The Guardian made them appear. As Jack suggests, if anyone should be angry with Carter Ruck in this particular case, it is Trafigura, who have received more adverse publicity as a result of the scandal.

Dr Aust said...

Speaking as a non-lawyer:

While I concede that the LAW is what needs changing, and in that sense the lawyers are not the sole appropriate focus of protest, I'm with many of the posters up the thread in that one cannot simply absolve lawyers like Carter-Ruck of all responsibility, especially for the way that reputational and libel matters play out in the real world. As one commnter said, lawyers are human beings (jokes to the contrary notwithstanding), and therefore moral agents. And this was NOT a criminal case, so you can't use the old Hunter S Thompson joke about "Even a werewolf is entitled to counsel". Carter-Ruck can choose to take a client's case in a civil action to suppress embarrassing (damning?) information about appalling behaviour. Or they can choose not to. Ditto other law firms.

Can I ask the lawyers here a related and very naive non-lawyer question? What if the lawyer takes a client's defamation case on the basis that the client has been defamed, and then learns that the complained-of statements made about his or her client, though clearly damaging to the client's reputation, were essentially accurate? Does the lawyer simply say they can no longer act in the matter and excuse themself? Are they obliged to tell the judge hearing the case? Presumably, on the basis of the kinds of things Kris mentioned in the first comment on the thread, the lawyer is not allowed to simply carry on arguing the client's case for defamation knowing or believing it to be false?

Nash said...

I was under the impression, that with the libel case Mitch Mitchell the drummer with the Jimmy Hendrix Experience brought against a writer of an Hendrix biography in 1994 was as a result of Carter-Ruck touting for business amongst celebs.
What he sued about was a statement he made in the 60's about Hendrix. The statement was on record and the fact that Mitchell said it was an unfortunate truth, not a malicious lie.

I think libel lawyers as a group are in disrepute because they fail to make this distinction.
Would Gillian "The actress who gives blowjobs" Taylforth be remembered as the acrtress who gives blowjobs if

1) she hadn't been caught giving someone a blowjob
2) Drew attention to this by bringing a libel action.