The Law Society’s Council convenes next week to set the level of the compensation fund levy, with a steep increase on this year’s £150 now seemingly inevitable. A report circulated ahead of Wednesday’s meeting contains a recommendation from the Financial Protection Committee that the full contribution rate for 2009/10 be set at £450. A final decision on the levy was deferred last month pending further consultation with the Solicitors Regulation Authority. Council will hear that £270 is the lowest level the regulator would support, as claims soar and calls on fund reserves increase. The higher figure of £450 allows for a degree of ‘smoothing’ which the committee hopes would mitigate the need for high contributions in 2010/11. Projections have shown that solicitors could face another steep increase then, as the number of practice interventions and the incidence of mortgage fraud increase. ‘We are starting to see the consequences of an economic downturn of unprecedented severity,’ the report says. ‘It could have consequences even worse than the early 1990s, when grants peaked at £42.3m in today’s values.’
It’s only fair and right, after castigating hordes of big law firms over their woeful Wikipedia entries back in May, to let the world know when law firms learn to get Wikipedia right. So step up, CMS Cameron McKenna. Eve MacKinnon at CMS wrote to me back in June (while I was on holiday) to say that the firm had looked at its Wikipedia entry – which I had said was ‘not good’, was ‘way too brief’ and had a long-standing ‘lack of sources’ tag from Wikipedia central – and redone it. Now it’s a paragon of ‘how to do a Wikipedia entry’. It’s not holding tonnes more content in terms of numbers of words but it looks a heck of a lot better, it’s far better laid out and it’s a lot more ‘informative’, to my mind. So well done, CMCK. Going back over the article I wrote about firms and their Wiki entries, I am struck by one comment, by Michael J ‘Orange Mike’ Lowrey, who says he’s ‘one of the thousands of volunteer administrators’. Orange Mike sums up, to me, why Wikipedia is not somewhere that marketing people can carelessly write rubbish about firms, and shows how seriously Wikipedia admins take their ‘work’ – and rightly so. Orange Mike, however, is not best pleased with our advice that law firms should write their own entries: [Forgive Mike’s Americanised spelling] ‘Wikipedia has very strong rules against conflict of interest, self-aggrandizement and just plain advertising. If your article advised your readership to create or edit articles about their own firms… you [Mike means me, here] behave incredibly irresponsibly… such actions, when spotted, are reversed expeditiously; and persistently abusive editors can and will be blocked. If your readers persist in abusing this invaluable resource for PR purposes (such as by ‘adding links to your firm’s own website, blog posts and notable references’), their firms can find themselves blocked, and any links to them blacklisted in the most appalling and shameless cases. We call this spamming, and patrol against it militantly. If your readership is intelligent, then please contribute to our coverage of the law. Just don’t try to misuse us as a PR tool.’ In essence, Mike is saying that law firms should not write their own entries. Now, I think it’s being completely unrealistic to expect a law firm not to either make its own Wikipedia page or make sure it’s accurate and ‘good’. So I think Mike’s being very unrealistic about what law firms should and shouldn’t do. Also, all my advice on Wikipedia entry creation was based on the fact that either firms will do this themselves and do it badly, and get kicked off, or do it ‘properly’, and (hopefully) not. I’m just trying to push, or perhaps nudge, firms in the right direction on a road they’re already on. But Mike, and people like him, are running this show, and that is why I wrote so vehemently that firms must ‘tell it straight’. Because, if they don’t, they’ll have the Mikes of this world on their case.
It’s difficult to write a positive article when solicitors’ firms are facing the reality of Professor Stephen Mayson’s prediction from a couple of years ago, when he told the profession that thousands of firms faced extinction.Mayson’s prediction is coming true even without the pressure of the Legal Services Act – profitable, well-established and valuable firms are now being forced out of business by rising insurance premiums. Marketing cannot offer any immediate relief, but a few thoughts occur to me for firms either closing or those continuing with the increased insurance burden. For those giving up the struggle, it’s worth remembering the value in your past clients. Your database is the valuable element in your firm that you or someone else can use – don’t let it slip away. For those continuing, aspects of marketing management will become more important. Business management suggests immediately reducing costs to increase profits, which means redundancy of staff and fee-earners. Another side to that profit question is: where does your firm make its best profits? In straightened times it’s difficult to say ‘no’ to all work offered, however it can be the right idea. If you know what types of work bring you the best profits then saying ‘no’ to lower-margin work allows the firm’s resources to be available for high-value work. If those resources (that is, people) don’t have a full caseload, then set them to work on the most valuable bit of any firm: past-satisfied clients and referral contacts. Write, call, email or meet all the people you can. Remind them of the services you offer and the benefits of good legal advice and preparedness. No one entered the legal profession to become a salesman, and many feel uncomfortable selling their work. You can call it ‘business development’ through ‘excellence of service to clients’ by ‘understanding their future legal needs’, but it is selling. To be harsh, those not capable or willing to do it, however brilliant a lawyer they may be, may well be the first to go. Be careful of those external suppliers offering ‘loads of new clients’ or ‘masses of new business’. There are few able to deliver the right number and suitable quality of enquiries. Dealing with and paying for new enquiry sources can distract you from the main issue – profitable legal advice – and mean you end up answering the phone at all hours for no fees. There are no easy or quick fixes to the market conditions, which are not going to change in the near future. Hard work generating business from your past clients is the best way to go. Keep the high-margin work and pass the rest to someone else. Follow a plan to increase profit margins in all areas by whatever suitable means necessary and you’ll be ready to compete.
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe, which represents more than 700,000 European lawyers through its member bars and law societies I had business with a notary this week. Visiting a notary in Belgium – I suspect the same holds true in all of the continental countries in which they practise – is like entering a scene from a 19th-century French novel. Typically, you are ushered into a specially furnished room, with impressive bookcases lining at least one wall, packed with uniformly bound law books from floor to ceiling, and a picture-window looking over a manicured garden. There is usually also at least one large art object on a low table, probably picked up by the notary on a foreign holiday. You wait a moment or two and the notary enters with a flourish, holding your file. There is no sign of a computer (even my doctor has a computer on his desk these days, for my records, and for research). I have had business with three notaries in Belgium. They always strike me as well-educated, well-off and bored. I suspect that they are bored because much of their work is ceremonial, required by the state to give formality to a document. I once had to sit through a notary reading out the articles of a company, line by line, even though I had read it myself beforehand and indeed helped the accountant to prepare it – the notary only read it, authenticated it and charged me a very large sum. On other occasions, when the CCBE (an organisation composed exclusively of lawyers, after all) has passed amendments to its statutes, they have not been considered valid until I have gone to visit the notary armed with the proxy votes of our heads of delegations, so that I can formally vote for the statutes once again on behalf of all our delegations in front of the notary, who can then authenticate and register them. This week, I had to obtain a document to the effect that I had signed another document in front of the notary. Wouldn’t you be bored? Yet the calm exterior hides savage battles about notarial rights. Article 45 of the EC Treaty says that the free movement provisions shall not apply ‘to activities which in that state are connected, even occasionally, with the exercise of official authority’. Since notaries have in some of their functions the delegated authority of the state, they cling to that provision to say that none of the usual treaty provisions should apply to them as they apply to the rest of us lawyers. But the European Commission is chipping away at their rights. The commission was so furious that the French government intervened at the last moment to exclude notaries from the recent liberalising services directive that they have since conducted a campaign against notaries: this month, DG Internal Market added Portugal to the list of countries (Belgium, Germany, Greece, France, Luxembourg and Austria) that it has already referred to the European Court of Justice for refusing to allow non-nationals to become notaries; and DG Competition released an unflattering report at the end of 2007 about their participation in the real estate market. In France, the spiritual home of the notary, president Sarkozy set up a commission (the equivalent of our Clementi, but headed by a Paris lawyer, Jean-Michel Darrois) to see, among other things, whether the notarial profession should be merged with advocates. Darrois decided against that, but recommended instead that lawyers should be allowed their own version of the notaries’ hallowed treasure, the authentic act. This was approved by president Sarkozy, and a law is in the act of preparation. It has brought the notaries out in revolt, and they are at this moment conducting an overwhelming lobbying campaign to see it defeated. Notaries argue that the authentic act is their contribution to civilisation, because its probative force provides security to the judicial system. They also claim that their governments will never abandon them, because they are a trusted authority in the collection of taxes. Contrary to what I have highlighted from my own experiences above, I know that their professional organisations are busy trying to bring the cutting edge of technological developments to the notarial act. It is difficult for someone from a common law background to understand their role and status. And I have not properly represented their substantive work in my given examples, because I have not come across it personally, for instance in family, property and succession matters. But it remains nevertheless true that they use monopolies (nationality, scope of practice, sometimes numbers) to sustain their position and to fend off competition. And their role can often be seen as a combined tax and obstruction on legal procedures. If the French law on a lawyer’s authentic act goes through, there will be radical changes throughout the notarial world, since other notarial countries will doubtless take their cue from France. So watch this space for the outcome.
SAL chairman Sundeep Bhatia said he was heartened by the calibre of award winners and nominees. He said: ‘This year’s awards highlighted how far diversity has progressed within the profession, and showed that SAL is a broad church encompassing solicitors, young and old, from private practice and public service, as well as members of the bar.’ Law Society vice-president Linda Lee, Solicitors Regulation Authority chairman Charles Plant, Crown Prosecution Service director of equality and diversity Dale Simon, and Sir Desmond De Silva QC of Argent Chambers presented the awards at SAL’s annual ball. The Society of Asian Lawyers (SAL) has announced the winners of its annual awards to recognise the exceptional achievements of Asian solicitors and barristers practising in the UK. The award winners were: Young lawyer of the year: Naim Rahman of London firm Duncan Lewis Commercial lawyer of the year: Deepa Deb of City firm Berwin Leighton Paisner Pro bono/human rights lawyer of the year: Katie Gosh, director of the British Institute of Human Rights Criminal lawyer of the year: Ali Naseem Bajwa of 25 Bedford Row Chambers Public service lawyer of the year: Jaswant Narwal, chief Crown prosecutor, Lincolnshire Lifetime achievement award: Makbool Javaid of London firm Simons Muirhead Burton
Detention – Drug trafficking – Right to life – Death of drug smuggler The appellants appealed against a decision to strike out their claim based on the European Convention on Human Rights 1950 as bound to fail because it arose out of criminal conduct. The appellants were the widow and father of a professional drug smuggler (D). D was also a drug user, with a cardiac debility probably caused by drug abuse. He was detained at Heathrow airport. At the time his body contained a kilo of raw cocaine in 116 sealed packages which he had swallowed. He was X-rayed, charged and remanded in custody. In custody he refused all food and almost all drink for a week, despite being warned by staff, as well as by two NHS general practitioners, by his solicitors and by his father that he could suffer severe harm if he had packets of cocaine in his system. He then took a little food and fluid, but began to show signs of acute cocaine poisoning, although none of the packages had burst. An ambulance was called promptly, but D died. The cause of death was certified as acute cocaine toxicity and cocaine-related heart damage. The appellants brought a claim alleging breaches of articles 2 and 3 of the convention which protected the right to life and the right not to be subjected to inhuman or degrading treatment. Their case was that with a better policy for handling such cases and with better care D’s life could have been saved. The respondent successfully applied to strike out the claim on the basis of the maxim ex turpi causa non oritur actio because the events arose out of D’s own criminal conduct. The respondent argued that the absence of any affirmative jurisprudence in favour of a defence of criminality or ex turpi causa to a convention claim did not exclude it; the European Court of Justice had held that Community law could not be relied on for abusive or fraudulent purposes and there was no reason why the same should not be true of convention law. Held: The common law defence of criminality did not operate in Convention law so as to bar a claim. The silence of the European Court of Human Rights in at least three cases where the point was starkly open was eloquent, McCann v United Kingdom (A/324) (1996) 21 EHRR 97 ECHR, Makaratzis v Greece (50385/99) (2005) 41 EHRR 49 ECHR and Jalloh v Germany (54810/00) (2007) 44 EHRR 32 ECHR considered. It was not permissible simply to read across from Community law to Convention law. It was one thing to discountenance the manipulative use of a Community right for a purpose for which it was not meant; it was another to create a gateway to human rights which only the virtuous could enter. There were perceptible and sound policy reasons why the criminality defence did not form part of the Strasbourg jurisprudence, save when it came to just satisfaction. To introduce it into a claim under the Human Rights Act 1998 would be to create a barrier which citizens of other member states did not face (see paragraph 21 of judgment). Appeal allowed. Ayesha Al Hassan-Daniel (in her own right and as representative of the estate of Anthony Daniel, deceased) & Anor (appellants) v Revenue & Customs Commissioners (respondent) & Justice (intervener): CA (Civ Div) (Lords Justices Neuberger, Maurice Kay, Sedley): 15 December 2010 Hugh Southey QC (instructed by Hickman Rose) for the appellants; Jason Beer (instructed by Treasury Solicitor) for the respondent; Paul Bowen, Alex Gask (instructed by the in-house solicitor) for the intervener.
Obiter-friend Michael Mansfield QC is a candidate in an arcane election that is due to ‘hot up’ in the next fortnight. We speak of the ‘Election for the Office of Chancellor’ at the University of Cambridge, which takes place on 14 and 15 October. Mansfield has been nominated as an ‘anti-establishment candidate’ to take on the choice of the university’s nominations committee, Lord Sainsbury. And there is some strong feeling against Sainsbury outside the university hierarchy. ‘Is it too rude to call him a plutocrat?’ one of Mansfield’s nominators asked Obiter. ‘He has inherited wealth, and represents some of the capitalist focus that threatens the ideas on which a university is founded. ‘We’d like to see someone who is prepared to question the establishment.’ At first glance, a no-brainer for the independent-minded alumni who comprise the bulk of the electorate. Except that he is one of three anti-Sainsbury candidates. The owner of a local convenience store, Abdul Arain, was first. Shy and retiring actor Brian Blessed (pictured) secured a nomination after a Facebook campaign by alumni uninspired by the prospect of a Sainsbury coronation. In this crowded race, the runners have adopted radically different tactics. It seems Sainsbury or a supporter has thrown money at the campaign, securing the advertised Google link associated with the search terms ‘chancellor’, ‘Cambridge’ and ‘election’. Arain’s gone quiet, but Blessed will be greeting voters in Silver Street pub The Anchor on the Saturday. And Mansfield? Like the others he’ll make a final appeal by speaking at the Cambridge Union Society in the last week – Obiter hopes he knows the standard for a USP is unusually high in this election.
Migrants are denied the right of access to the court if they are given under 72 hours’ notice of their removal from the UK, the Court of Appeal ruled yesterday. The judgment frustrates the UK Border Agency’s aim to win permission for zero-notice removals. In an ex tempore judgment read by Lord Justice Sullivan, sitting with the Master of the Rolls and Lord Justice Maurice Kay, the Court of Appeal dismissed UKBA’s appeal against the decision of the High Court to allow a claim for judicial review by the charity, Medical Justice. The case bought by Medical Justice challenged the lawfulness of exceptions to UKBA’s general policy that requires at least 72 hours’ notice to be given to immigrants of their removal. The policy, which came into effect in January 2010, allowed certain individuals who had made unsuccessful claims to enter or remain in the UK, to be issued removal directions with little or no notice of their removal. In the High Court in July 2010, Mr Justice Silber quashed the exceptions to the policy. He agreed with Medical Justice that the policy fails to ensure that the person subject to removal will have access to justice, because they would have no realistic chance of asking the court to intervene to stop the removal where it was unlawful. Silber said: ‘The effect of the 2010 exceptions is that in removal, it is frequently almost impossible that somebody served with removal directions will be able to find a lawyer who would be ready, willing and able to provide legal advice within the time available prior to their removal. ‘There is a very high risk, if not an inevitability, that the right of access to justice is and will be infringed,’ he said. The judge took account of the witness statement from the Law Society’s director of legal policy Mark Stobbs, submitted in support of Medical Justice. Stobbs highlighted the impact of changes to the legal aid system, which have resulted in a significant decline in the number of lawyers available to give immigration and asylum advice – adding to the difficulty of obtaining legal advice if the 2010 exceptions were applied. He also noted the demise of Refugee Migrant Justice and the Immigration Advisory Service, which were two of the biggest advice providers. Following the High Court’s ruling, the home secretary, on behalf of UKBA, appealed in relation to the ‘consent’ exception, arguing that migrants who consented to removal from the UK had in effect waived their right to legal advice and did not require 72 hours’ notice. In a second statement submitted on behalf of the Society, Stobbs told the appeal court that consent has to be real and therefore properly informed by legal advice, particularly when it means that the individual is withdrawing outstanding court challenges. He said it is unsafe for UKBA to rely upon that consent unless it is properly informed, and that it is in its own interest to ensure that consent is properly given and recorded. The Court of Appeal ruled that migrants have the common law right to access the court to challenge the legality of their removal, and that less than 72 hours’ notice was insufficient to enable them to access legal advice and make that right effective. The consequence of the judgment is that, save in relation to port cases, at least 72 hours’ notice of removal must be given. Commenting, Law Society chief executive Desmond Hudson said the Court of Appeal stood above the criticisms made by politicians and elements of the media about the courts’ intervention in immigration cases. He said: ‘This case shows the need for the courts to protect the rights of the individual, whether an immigrant or anyone else, to have access to legal advice. ‘UKBA’s failure to observe its own procedural safeguards, to take steps to ensure that consent was informed, and to keep proper records undermined its position, leading not only to today’s challenge but in some cases to migrants having been removed then being returned to this country at the taxpayer’s expense,’ he said. A Home Office spokesman said the department is considering the decision. The written judgment of the Court of Appeal is not expected for several weeks. Justin Leslie, a barrister leading the judicial review working group at Medical Justice, said: ‘The Court of Appeal’s judgment strongly reaffirms the necessity of having the opportunity to access effective legal advice. Lord Justice Sullivan was clear about the proven risk of injustice in the Home Office’s policy of providing no notice before removing someone from the UK. ‘This case was about the application of a basic constitutional principle – giving everyone, especially the most vulnerable, a realistic opportunity to challenge the legality of decisions made in often desperate circumstances. The Court of Appeal’s decision will help many people, such as those detainees suffering from medical conditions exacerbated by the immigration detention system. ‘We are delighted that the decision will benefit this group of people which Medical Justice exists to help.’ Read the High Court’s earlier ruling.
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Subscribe now for unlimited access Get your free guest access SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community