Two reports on Juducial Appointmentments

A new report by Professor Alan Paterson and Chris Paterson (disclosure: I have worked with Alan on many an occasion) makes an important contribution to the debate on diversity in the Supreme Court. They’ve also written a piece for the Guardian. Here are two key paragraphs: The Supreme Court is a collegiate court, sitting in panels that make binding legal decisions as a collective. Its competence is therefore a corporate competence, not simply an aggregation of the individual competences of its individual members. The law of the land represents the collective code of the whole of society. A key aspect therefore of the competence of such a court is the ability to relate to the experiences of the society it serves and to bring the broad range of perspectives that accompany these experiences into the collective decision making process. It is a powerful argument. Legal judgment is not simply a technical exercise. Judgment is shaped by “our” own experiences and values. As one famous research study shows it may also be shaped by proximity to lunch (an interesting spin on the advocate’s refrain that a decision will depend on whether the judge had a good lunch). I have also been reading Jonathan Haidt’s book on moral psychology. He emphasises the possibility that intuition shapes moral judgment because it shapes what information we process and how we process it. The judicial process and law itself builds in lots of restraint on that intuitive process but judicial reasoning is not likely to escape the clutches of what Kahneman calls System 1 thinking. Even a cursory look at the way the Supreme Court splits, when it does split, is reason enough to suggest that underlying values may have an important influence on how cases are decided. It is also a reminder that diversity of values includes, but extends beyond, concerns with demographic representativeness. *The House of Lords Constitution Committee has also reported on Judicial Appointments.

Activity based regulation – EU perspectives on partial access to reserved activities (Jules Lonbay)

Regulating legal services in England and Wales

The regulation of legal services is in England and Wales is in the process of major change. The Legal Services Board is considering whether certain ‘legal’ services (notably will-writing, estate administration and probate activities) should be reserved to persons with particular qualifications (or not). There are also LSB reviews ongoing regarding, for example, the regulation of immigration advice and services.  The current review of legal education in England and Wales, being undertaken by the LETR, will be assessing how the current regime of legal education in England and Wales is suited to the new post-Legal Services Act 2007 world, which will be allowing new modes of ownership of legal service providers, and is scheduled to recommend changes to meet the challenges at the end of 2012.

The LSB has oversight over eight types of legal actor in England and Wales that are authorised to practice the “reserved activities” in the legal sphere. Will there be consolidation or further fragmentation of the legal professions? What impact might there be on legal education?

The European Dimension

Naturally there is a European dimension to all of this ferment. For one thing many European trained legal actors (members of more than 26 professions) can freely practice law in the UK, and for another the authorised regulators of legal services in the UK (Competent Authorities in EU-speak) have an obligation to admit such professionals to practice, and, in some cases, admit them to their particular legal profession, and, if not admit them immediately, then assess their qualifications and indicate missing elements of knowledge of competence that must be made up before joining the relevant legal profession.

Moreover the European Commission has recently published a review of the economic impact of reserved activities (in the legal and other sectors) and legal services directives themselves are currently under evaluation.

Recognising competence to perform legal activities

This assessment of continental legal professionals by UK regulators is mandated by the Lisbon Treaty single market provisions and, in particular, for our current concern, by Directive 2005/36/EC. This Directive, which consolidated 15 earlier Directives, is now itself subject to revision. When Directive 2005/36/EC itself was initially proposed, it included a provision allowing for access to practice part of the professional activities of a profession by incoming migrants, without joining the profession itself. This did not survive the negotiating process and was dropped. The new proposal revives the idea of partial access. This potentially means that UK legal regulators may have to give access to reserved legal sector activities to persons not belonging to a UK legal profession.

Partial Access to reserved activities

The new provisions on partial access are more carefully drafted than their predecessors. They follow the lead of the CJEU in the Colegio case (C-330/03 Colegio de Ingenieros de Caminos, Canales y Puertos).

A revised Article 1 indicates the migrants will have ‘partial access to a regulated profession’ and a new Article 4(1) indicates that they will be able to gain access to ‘part of the same profession’, but the new Article 4f is more accurate in indicating that ‘The competent authority of the host Member State shall grant partial access to a professional activity in its territory…’ (my emphasis) if certain conditions are fulfilled. So here we have the separation of the host State profession from the host State professional activity. The activity in question must be lawful in the home State and should be able to be ‘objectively be separated from other activities falling under the regulated profession in the host Member State’. If the activity is autonomously exercised in the home State that would be sufficient to fulfil this criterion. Partial access by a migrant can be rejected if there are sound proportionate public interest reasons to do so.

Partial access is only to be granted where:

‘differences between the professional activity legally exercised in the home Member State and the regulated profession in the host Member State as such are so large that in reality the application of compensatory measures would amount to requiring the applicant to complete the full programme of education and training required in the host Member State to have access to the full regulated profession in the host Member State’.

Professional Identity

Persons permitted to access a reserved activity by these new provisions will normally do so under their home State professional title. So at one level we could say, so what, this is nothing new, already EU lawyers can practice law in the UK under their home State professional titles, but, one difference is that they are currently regulated by the UK professional bodies with whom they must register when they establish. [By virtue of Article 5 of Directive 2005/36/EC lawyers providing services will do so though operation of the provision of Directive 77/249/EEC and Directive 2005/36/EC will not apply.]

Lawyers, or others, seeking partial access to aspects of legal practice on a more permanent basis will be able to use the establishment provisions of the revised Directive should the proposal become EU law. The Member States could argue that regulation would be required by the host State regulator, but, as the new entrants would not necessarily be members of the host State profession so which professional rules and obligations woud apply to them, and how? There will clearly be pressure to atomise professional rules so that individual reserved activities can be effectively autonomously regulated. This disaggregation of professional activities could weaken professional identity. If an EU citizen can use EU law to access a reserved activity in another Member State without joining a host State profession then why logically should a UK national not be able to do so?

See further

See Lonbay, J, ’Assessing the European Market for Legal Services: Developments in the Free Movement of Lawyers in the European Union’, Fordham International Law Journal 1629.

LETR: Is there a big hole opening up under the solicitors’ profession?

Reblogged from Lawyer Watch:

Two papers published this week on legal education underline for me a number of unresolved tensions in professional regulation. The papers come from the Legal Services Board and the College of Law’s Legal Services Institute, the latter authored by Stephen Mayson and John Randall. The LSBs paper emphasises the need for the Legal Education and Training Review to focus on the regulatory case for intervening in education and training.

Read more… 700 more words

New sub-group…

A new sub-group on Management in Justice systems is being established.  For more information see here: http://iwglp.wordpress.com/subgroups/management-inand-justice/

2012 Meeting Details

The Legal Profession Group meeting will be in Königswinter-Heisterbacherrott, a place very close to Bonn from the 1^st to the 4^th of July.

This is the website of the venue:
http://www.hausschlesien.info/

There will be a package including three nights (from Sunday evening till Wednesday).

Bonn is close to several airports: Cologne/Bonn which is in the proximity, Düsseldorf which is 1 hour by train, Frankfort an hour to two according to the type of train, and also Brussels is not very far (app. 3 hours).

 

Exactly Who Should Be Able to Claim Privilege?

When the Australian Minister for Financial Services refers to accountants and tax professionals as “the consiglieri of suburban prosperity”, you know a good argument is brewing.

The argument is over who should be able to claim privilege over communications with clients and third parties. At the moment we recognize legal professional privilege. But for a long time accountants have bristled resentfully at their being outside this charmed circle.

During the negotiations over the Legal Services Act 2007 accountants lobbied for the extension of privilege to cover them. Resistance by the legal profession was far too strong and the accountants were forced into retreat. Yet help may be at hand.

The Australian government has issued a discussion paper which considers whether some form of privilege ought to be extended to cover tax practice–tax advice privilege. The Australian Law Reform Commission (ALRC) has suggested privilege should be so extended.

The paper notes that a very limited form of tax advice privilege exists in the US in relation to non-criminal matters. New Zealand has codified some form of privilege also. The UK appears to be in an anomalous situation. At the moment Prudential is appealing to the Supreme Court claiming that tax advice it received from PwC was privileged. The Court of Appeal rejected Prudential’s claim after hearing arguments for and against by the Institute of Chartered Accountants for England & Wales and the Law Society.

Arguments for and against seem to take place on multiple levels. There is the security of the tax system which is essential to the mature functioning of the developed state. Tax authorities will have to go beyond the taxpayer’s willingness to cooperate. But ideally compliance should be voluntary.

Professions are discriminated against if tax lawyers appear to have an unfair advantage over tax accountants. It can be seen to stifle competition and give monopoly powers unfairly. If you want to see something that bears comparison, have a look at Barak Richman’s paper on Rabbinical cartels over the appointments of Rabbis–absolutely fascinating. The arguments adduced by Rabbis are the same as most professions use to claim why there should be no change to their monopolies. It comes down, in large part, to the Rabbis having the expertise which the congregations don’t have.

A strong argument put to counter extension is the position of the lawyer as officer of the court who has undergone ethical training. The ALRC believes this can be dealt with by accountants having heightened sensibilities to ethics. They should be ethically trained and continually trained.

There are many other arguments which are covered in the paper. This is a paper worth reading for those concerned with ethics, professions, and globalization.

We know from experience that much Australian thinking has been exported elsewhere, especially in the forthcoming ethical regime in the UK with outcomes focussed regulation. Moreover, the Legal Services Act introduction of alternative business structures will bring this issue to the foreground as multidisciplinary practices grow.

So, maybe now is the time to pull out those DVD sets of The Godfather so nascent consiglieri can learn how to do that intimate and obsequious murmuring into the ear….

Does representation help clients?

Very interesting looking research popped up on the ELS blog: What Difference Representation? byD. James Greiner (Harvard Law School) andCassandra Wolos Pattanayak (Harvard University – Department of Statistics)

Here’s the abstract:

We report the results of the first in a series of randomized control trials designed to measure the effect of an offer of, and the actual use of, legal representation. The results are startling. In the context of administrative litigation to determine eligibility for unemployment benefits, a service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory, but the offer caused a delay in the proceeding. Because a substantial percentage of the provider’s client base consisted of claimants who were initially denied benefits but who would have that initial denial reversed as a result of the litigation, the delay an offer of representation caused inflicted a harm upon such claimants in the form of an additional waiting time for benefits to begin, this with no concomitant increase in the probability of a favorable outcome. In other words, these claimants would have been better off without the offer of representation. Other classes of claimants were unaffected, but in cases with a certain profile, the delay hurt the financing of the unemployment system, again with no concomitant benefit in the probability of a favorable outcome for the claimant. We were also able to verify a delay effect due to the actual use of (as opposed to an offer of) representation; we could come to no firm conclusion on the effect of actual use of representation on win/loss. Stepping back, we use these results as a springboard for a comprehensive review of the quantitative literature on the effect of representation in civil proceedings. We find that this literature provides virtually no credible information, excepting the results of two randomized evaluations occurring in different legal contexts and separated by over three decades. We conclude by advocating for, and describing challenges associated with, a large program of randomized evaluation of the provision of representation, particularly by legal services providers.

The paper can be downloaded here.  It’s very quantitative and the findings are described on the ELS blog as ‘liley [to] startle many’.   On a quick look it involved an RCT.  Some literature seemed to be missing, no reference to Sandefur’s meta-analysis or quite a bit of work outside the USA, but very interesting nonetheless.