John Flood's Random Academic Thoughts (RATs)

Neil Rose at Legal Futures reports that the Legal Services Board (LSB) is to compel law firms and barristers’ chambers to disclose information on diversity, which would encompass:

• age
• disability
• gender
• race
• religion or belief
• sexual orientation
• working patterns
• social mobility

This should come into effect in February 2011. And not before time.

My colleagues Lisa Webley and Liz Duff have been doing research on this, in conjunction with scholars from Leeds, for the LSB. Their report is due shortly and at Westminster we will be holding a seminar on this on 13 October. My guess is that their findings will not make happy reading for the profession.

This is an aspect of the legal profession which has remained under-researched and misunderstood for a long time. Both solicitors and the Bar have been reluctant to provide figures, except in aggregate, on gender and ethnicity. We do know that there are severe distortions in numbers between entry to law school and those in practice.

Lawyers and the legal profession have been good at portraying themselves as meritocratic and having removed the last traces of noblesse oblige. Yet without the statistics how do we know?

Discussion groups on Linked In have been grumbling about “heavy-handed” regulation from the LSB over having to collect and disclose this information. But they have only themselves to blame for not taking the lead and actively seeking to resolve the problems endemic in the profession.

Unfortunately when it comes to change the legal profession is snail-like. And this is one of the reasons the Legal Services Board exists–to overcome the inertia of the profession. Maybe it will begin to get the message, if it’s prepared to listen. But….

I recently adopted a new wallpaper for my computer. Here it is:

Edward Tufte is a hero of mine. I know that I will be soon seeing endless PowerPoint presentations being screened in the lecture rooms of the university. For what purpose, I wonder? That’s why I’m with Edward on this. We aren’t very good at this.

Tufte’s book The Visual Display of Quantitative Information ought to be required reading for every graduate student. It contains what I am certain is the best graphic display of complex information I have ever seen–Minard’s map of Napoleon’s march on Moscow in 1812

Napoleon started with over 440,000 men on the left; at Moscow he had 100,000; and by the time he arrived back he had only 10,000. The map plots numbers, the course of the invasion, rivers, cities, temperature and time. (You can find out more here.) If Minard could produce such an elegant and fascinating visualization in 1869, we have to wonder why the kitten population isn’t thriving instead of being decimated.

Every time I read a draft of a PhD dissertation I come across graphics that float alone on the page, disconnected from text, idea or analysis. What the hell are they doing? Very, very rarely are these things self-explanatory. My response is automatic: read Tufte and don’t come back until you have. It sometimes works.

I think I have found a worthy accompanist to Tufte in the guise of David McCandless, a British journalist, turned data visualizer. McCandless believes passionately that information is beautiful if you present it in the right way. He spoke at TED this year. And I am going to show his talk to my research methods students. McCandless has a way of taking vast amounts of information from sources such as Facebook and military budgets and putting them into a visual context that makes immediate and intuitive sense.

Watch….

The Lawyer published a more detailed analysis of where Optima Legal Services (see here 1 &  here 2) went wrong when it jumped into bed with Capita.

The SRA accused Optima of not having an arms-length relationship with outsourcer Capita and therefore had become an Alternative Business Structure (ABS). According to the Lawyer:

Optima was established in May 2006 when Capita supplied the financial backing for the OLS directors to buy the volume property arm of DLA Piper. Over the next three years Capita lent the firm in excess of £35m, enabling it to make a series of acquisitions, including ­Pathway, the volume legal property services division of Walker Morris in September 2006, and Dickinson Dees’ volume arm D3 Legal in November 2009.

Furthermore

The SRA found that ­Capita did indeed have too much control over Optima. Its loan facil­ity was too ­”onerous” on the firm and OLS’s “extensive” reporting obligations to Capita were in “excess of a normal commercial lender arrangement”. The regulator also found that five of the nine managers on the firm’s operational board, including former chief ­executive Adrian Lamb, were paid by Capita.

So any investor must now wait, patiently, for October 2011 before they start pumping money into legal practices. Despite this brouhaha Capita

has given no indication it is about to back away from the profession. In a statement released to The Lawyer last week, it acknowledged it went further than the rules allowed but added: “Optima continues to be a business in which we’re happy to invest.”

Finally, Neil Rose, at the LegalFutures website discusses the warning shots made by the Council of the Bars of Europe (CCBE) about the threat of ABS. The CCBE, along with the ABA, perhaps, is saying that the issue could end up in the European Court and

the CCBE’s argument centres around article 11 of the Lawyers Rights of Establishment Directive, which stipulates that member states have the power to ban from their jurisdictions any law firm that is not completely lawyer-run, if it were deemed contrary to public policy to allow them to operate.

If it does end up in the European Court then it won’t bode well for ABS. The ECJ has typically taken a national pro-profession line rather than a pan-European one when it comes to the legal profession. It appears that the ECJ has a knee-jerk reaction to these moves as the Wouters and Arduino decisions clearly demonstrate. For a good analysis of this see Richard Parnham’s discussion at Jotwell.com.

It’s certainly not going to be plain sailing into the new dawn. There will be the occasional nightmare or siren call along the way to ruffle the waters.

As I looked for images to insert in this post, my search brought up two that seemed out of kilter with my theme, but nevertheless here they are….

This Australian lawyer has been fighting a move by the Victorian Legal Services Board to remove her license to practise. In this photo she is posing for GQ magazine, just as most lawyers do…

At least this one popped up on the Legal Futures blog in reference to the LSB.

However, the real purpose of this post was to consider a negative opinion on Lawcompli.com about the value of the Legal Services Board. The introductory paragraph sets the tone:

Some may wonder what use the LSB is.  Some have called for it to kill itself off once ABS’s are introduced next year.  All must want it to prove its value as well as its value for money.  It risks adding little of value, for either the consumer or the profession.

I fundamentally disagree with this view. First, I should declare my interest that I am a member of the LSB’s Research Strategy Group.

To most observers it is clear that in the case of some professions–law, accounting, medicine, for example–self-regulation has failed. It has failed to protect clients/consumers and it has failed to open up the professions to all who wish to join. In the classic formulation the professions have ensured the continuance of protection of production of producers by producers and the protection of production by producers.

The last 30 years have intensified the call for external regulation. Now that the legal trade bodies, eg. the Law Society and the Bar Council, have had to separate off their regulatory arms (the Solicitors Regulation Authority and the Bar Standards Board), we needed a system to ensure that they carried out their regulatory responsibilities properly and in accordance with clearly defined principles.

The Legal Services Act 2007 set out those regulatory objectives and it is worth revisiting them.

They are:

1. protecting and promoting the public interest
2. supporting the constitutional principles of the rule of law
3. improving access to justice
4. protecting and promoting the interest of consumers
5. promoting competition in the provision of services
6. encouraging an independent, strong, diverse and effective legal profession
7. increasing public understanding of the citizen’s legal rights and duties
8. promoting and maintaining adherence (by authorised persons) to the professional principles

While the legal profession itself promoted some of these, there were others that received a fairly lukewarm reception. This is one of the reasons why it was considered necessary for there to be an independent regulator not beholden to any legal interests to oversee the implementation of these objectives. Hence the Legal Services Board.

If we examine the current state of regulation it appears ad hoc, random, and even accidental. Take the divisions between the roles of barristers and solicitors. There is no fundamental reason for them except historical accident and a series of turf wars during the 19th and 20th centuries.

Indeed, pretty much most of the regulation is in this form. Take reserved activities:

• the exercise of rights of audience (ie appearing as an advocate before a court)
• the conduct of litigation (ie managing a case through its court processes)
• reserved instrument activities (ie dealing with the transfer of land or property under specific legal provisions)
• probate activities (ie handling probate matters for clients)
• notarial activities (ie work governed by the Public Notaries Act 1801)
• the administration of oaths (ie taking oaths, swearing affidavits etc).

There is no rational justification for why the list has to be composed of these activities and not others. Again, it’s historical accident which has been continued.

What we haven’t done yet, despite the OFT reports on the professions, the Clementi Review, and the Legal Services Act, is to undertake a rational review of the purpose of regulation. What is it for? What should be regulated? What doesn’t need to be regulated? How should regulation be justified? What form should it take?

Fortunately, this is one of the tasks the Legal Services Board has taken on. Without this kind of fundamental thinking the regulatory apparatus and thinking will continue its haphazard way. And so will the kinds of views put forward by Lawcompli.com above. The Legal Services Board gives us the opportunity to stand back and frame a rational and contemporary system of regulation that will serve both consumers and producers in a complex and globalizing world.

A couple of things caught my eye (literally). Here’s the first.

Eyes really are the window to the soul (especially when done in macro-photography)…

These are taken by an Armenian photographer, Suren Manvelyan, and you can see more of his beautiful work on his website.

And here’s the second for which you need eyes as bright as the ones above to see the results.

Dalton Ghetti sculpts the tips of pencils into works of art….

Ghetti lives in Connecticut where he’s a carpenter but carves these on the side using a razor blade, a sewing needle, and a sculpting knife. Many casualties occur along the road to success. You can see more at this site.

(HT to b3ta.com)