Showing posts with label litigation. Show all posts
Showing posts with label litigation. Show all posts

'A discourse on the first principle of regulation for lawyers'





An interview with

Iain Miller


Commercial Dispute Resolution Partner
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Iain Miller is at the height of his profession. He was recognised by The Lawyer magazine in its 'Hot 100 list for 2013'. He has been ranked as a Star Individual in the 'Chambers & Partners Guide to the UK' in the field of professional discipline and as a leading individual in the Legal 500 in the field of professional discipline. He has acted for the Solicitors Regulation Authority and its predecessors since 1994, and had also acted for the Bar Standard Board, the Architects Registration Board, the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman. His publications include the Alternative Business Structures, A Compliance Guide.   




TheLawMap: What are the required qualities to be a successful commercial dispute resolution lawyer?

The great thing about litigation is that it requires so many different skill sets.  Technical knowledge of the law and procedure is a given.  I think what distinguishes those that are really good is the ability to think creatively about how best to solve the dispute in their client's best interest.  That normally does not involve attempting to pummel the other side into submission by taking every point.  The best cases are those where all the parties work together to narrow the issues and try to find a satisfactory outcome.  However, those cases are depressingly rare and there is therefore  clearly a need to be level headed as adversarial litigation does involve some annoying and difficult moments.  Finally, as with everything else in life a sense of humour is invaluable.

TheLawMap: Lumsdon & Ors [2014] EWHC 28, unsuccessfully challenged Quality Assurance Scheme for Advocates (‘QASA’). What are the main challenges to QASA?

QASA seeks to address the quality of advocacy in the criminal courts.  Whilst most advocates are of a high quality there seems to be a widespread concern that some are not.  Few things are more important than ensuring competent representation in a criminal trial.  The scheme of QASA is to assess advocates as competent at 4 different levels which reflect the complexity of the trial.  To be assessed as competent at a particular level an advocate needs to nominate up to 3 hearings and the judge will complete an assessment form which will be sent to the advocate's regulator.  The scheme was developed jointly by the Solicitors Regulation Authority, Bar Standards Board and Ilex Professional Services and approved by the overarching regulator, the Legal Services Board.   The judicial review challenge raised a number of grounds.  These primarily centred on whether the role of the judge in completing the assessment affected the fairness of the trial process because, for example, the advocate may be inhibited in taking points on behalf of his or her client that offended the judge.  Issues were also raised as to whether the scheme complied with the Provision of Services Regulations and whether the appeal process from an assessment was fair.  The application was dismissed in both the Divisional Court and the Court of Appeal.  The Claimants have now sought permission to appeal to the Supreme Court.  My firm acts for the Bar Standards Board in the case.

TheLawMap: Legal Services Act 2007 created Legal Service Board (LSB) an independent body responsible for overseeing the regulation of lawyers in England and Wales. You have represented regulatory bodies SRA, BSB and others, do you think LSB is breaking down regulatory barriers to competition?
 
The biggest impact of the LSB is that it started from an assumption that legal regulation was no different from other areas of regulation and that many of the principles of market regulation could be equally applied in the context of law.  The main strand of work by the LSB has been directed at removing barriers to competition.  This is based on the principal that if competition increases then the accessibility of legal services will increase and their cost will go down.  It has been fascinating to witness this thinking becoming reflected in the approach of the front line regulators.  However, the changes driven by the LSB have also exposed the structural limitations of the statutory scheme set up by the Legal Services Act.  The general consensus is that the scheme needs to be amended but this will involve primary legislation which may be difficult in the near future.
 
TheLawMap: You are the coauthor of the Alternative Business Structures published by the Law Society publications. Since October 2011, 350+ licences have been issued by the SRA and the CLC. Early this month EY (the third of the ‘big four’ accountancy firms) was granted an ABS licence by the SRA. In your opinion, what would be the principal benefit of ABS to the legal profession in the long term?

The introduction of external legal ownership of those who provided regulated legal services will radically change the market.  It means that it is no longer necessary to go to a law firm to get legal services.  The big 4 accountancy firms understand this and although they seem to have different approaches, they realise that legal services can be bolted onto the business services they already provide.  Similar things are happening in the personal injury market where insurers are integrating legal services with their other businesses.  My view is that within 10 years most legal services will be delivered as part of another service.  For law firms this means that they need to think about how they need to adapt to this change.  There will always be a place for specialist legal advice by law firms or by the bar but the remaining firms are likely to be less highly leveraged and more specialist.

TheLawMap: Who or what inspired you to be a lawyer?

I would like to say that I was inspired by a particular episode of Petrocelli (if you are under 45 you may need to look it up!) but the sad reality is that doing a law degree seemed a useful thing to do and that just led me on to becoming a solicitor.  However, I have been very lucky to work with a number of brilliant people during my career who have inspired me and shown me what excellence looks like.  These include John Fordham at Stephenson Harwood, Geoff Prevett at Eversheds, Nick Wright at Wright Son & Pepper and Tim Dutton QC at Fountain Court.  I am also very fortunate that I now work with a team of solicitors who are way more talented than I am.  It is always better to be lucky than good.

TheLawMap: If you could change something within the legal profession, what would it be?

I think we confuse words for value.  Skeleton arguments, witness statements and pleading seem to be getting longer and longer.  The ability to make the complicated simple is what every lawyer should aspire to.





With special thanks to Iain Miller for his valuable time. He can be followed on Twitter and interacted with via Linkedin.




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Women in Law: 'Smart, able and indeed as brave as men'


An Interview with

Camilla Choudhury Khawaja

Barrister, Lecturer in Law
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TheLawMap: Does 'the legal process as a means to resolving conflict' has exactly the same meaning to men and women?

Conflict is an emotive term and something, which affects us all but can be very difficult to resolve. Using the legal processes can lead to further acrimony in some instances, therefore one would be well advised to attempt collaborative efforts before pursuing litigation. Access to justice can also be eluded to some, sadly women tend to find themselves at the receiving end in most instances, so perhaps the answer to your question is in fact no.

TheLawMap: In your opinion, are women lawyers treated differently by clients and colleagues compared to their male counterparts?

We hear of a series of recommendations aimed at improving gender diversity across the profession. These include introducing gender targets and embedding flexible-working practices in corporate culture, but whether they will lead to actual change is debatable.

Despite concerted efforts by some firms to improve female representation in management, the Law Society said the profession was hiding an “uncomfortable truth” that some are paying mere lip service to flexible working.

“In some firms, where the opportunities for those wanting to strike a balance between high-flying work and family life are still scarce, men dominate the boardrooms,” the Law Society’s President Lucy Scott-Moncrieff said. “Unwittingly, these firms may be losing talented women and promoting mediocre men.”

TheLawMap: Is there still a glass ceiling in the UK within the legal profession?

An increasing number of firms have genuinely embraced and adopted modern flexible-working practices, allowing better work-life balance. These firms are attracting more talented women boardroom potential. Without such practices, women may indeed be unable to allow for that balance, hence amongst other reasons, find themselves hitting that infamous glass ceiling.

TheLawMap: What is the likely impact in terms of justice in the wake of cuts to the UK Legal Aid funding?

It beggars belief that people are to find justice, that they are to succeed as potential litigants in person, particularly with the adversarial system as it stands. I see first hand the results of the cuts and I also deal with the ramifications of those whom have attempted to navigate the legal system on their own. The impacts are profound, furthermore the effect of such drastic change affects not only the clients but also us practitioners too.

Restricting legal aid to victims of domestic violence who could provide evidence such as a criminal conviction against the perpetrator, a non-molestation order or an active child protection plan from the past 12 months could lead to a rise in deaths and assaults against women and children.

Medical evidence from a GP, A&E, counsellor or women’s refugee would not be enough to qualify under the new proposals which are part of coalition plans to slash £350m from the legal aid bill.

Half of all domestic violence victims will not qualify for legal aid to help them and their children safely separate from abusive relationships, according to research by Rights of Women and Welsh Women’s Aid. While most victims surveyed had collaborative evidence to show they were receiving support, most would not satisfy the new rules.

TheLawMap: Internationally speaking, what concerns you the most in the area of women's rights?

Women in countries where their human rights are being eroded on a daily basis, stories emerge every day from Saudi Arabia, Pakistan and the like. More recently Bangladesh with the clothing factory horror – do these women not have a voice? Does their lack of money or power or even status render them unable to deserve only what is right? Corporate social responsibility is an area which such companies need to embrace as opposed to the allowing of the workers to suffer for the rest of the world to wear what is essentially disposable fashion.

TheLawMap: What inspired you to become a lawyer?

Seeking justice, helping those who otherwise would have no voice, but also fundamentally the fact that I have been an academic and very involved in local politics for the past 14 years and have therefore seen the methods by which law is created, implemented, studied and practiced. This affords much in the way of interpretation of the law, all skills I use to help women every day through being the Women’s Lawyer. 

TheLawMap: Why do you prefer to be known as the Women’s Lawyer?

Becoming the Women’s Lawyer has been my goal for several years. With the recent changes in the legal system and to legal aid entitlement, which affect women’s issues in the main, I decided this was the time to offer legal advice and support to those most in need. With over fifteen years experience of lecturing and advising clients on varying areas of law I have set up the legal consultancy, The Women’s Lawyer (TWL), with the fundamental aim of assisting women. Speaking from both personal and professional experience, I am in a position to help those who may otherwise not seek the advice or guidance of a lawyer. It is my genuine belief that with the right guidance women can avoid numerous problems such as with their employer/husband/partner/landlord/tenant. 
  
TheLawMap: Finally, if you had one wish to change something within the legal profession, what would it be?

The attitude of some lawyers towards women lawyers.

In the words of Lord Denning, who is for many is deemed a judicial saint, considered that:

“No matter how you may dispute and argue, you cannot alter the fact that women are different from men. The principal task in life of women is to bear and rear children: and it is a task which occupies the best years of their lives. The man’s part in bringing up the children is no doubt as important as hers, but of necessity he cannot devote so much time to it. He is physically the stronger and she the weaker. He is temperamentally the more aggressive and she the more submissive. It is he who takes the initiative and she who responds. ...”

It goes on in that vein for some time. And he is generally thought to be one of the good guys!
 

With special thanks to Barrister Camilla Choudhury Khawaja for her valuable time.

Camilla with her two boys Aman and Aden
Camilla Choudhury Khawaja was called to the Bar of England and Wales in 1998 by The Honourable Society of Gray’s Inn, after graduating with a Masters in International and Comparative Law. She began lecturing Law at the University of London in 1999, and continues to do so as a visiting lecturer at the University of Westminster. She maintains an active Twitter presence with a particular interest in women's issues. In conversation with TheLawMap, when asked about hobbies and interests Camilla stated that she adores spending her free time doting after her two young boys. Aman 10 and Aden 7 are politically minded, and pivotal to her work through the Women's Lawyer in that they see their mother as a role model, so it is of even more importance to show them that women are just as smart, able, and indeed as brave as men.