Sauce for the goose and the standard of proof

Scales by Hittie Evie on Flickr (creative commons) - thanks!

Ooh. That rhymes. Anyway…

The Bar Standards Board (regulators for barristers) are conducting a consultation on whether or not the standard of proof for disciplining barristers should be the criminal standard (as it now is) or should change to the lower civil standard.

First, a recap : the criminal standard means that, just as in a criminal trial, a thing isn’t proved unless the judge (or jury) is satisfied so that it is sure (or beyond reasonable doubt) that the crime has been committed. The civil standard means that a thing is proved if the judge thinks it is more likely than not (i.e. 51% or over) that the thing in question happened.

My initial response was – “Hell no! Leave it as it is. This is our careers we’re talking about, people. V important.” Plus, thought I, all the other professions use the criminal standard, so its a no brainer.

Except, apparently, whilst I wasn’t looking almost all the other regulators have gone over to the civil standard, the sneaky rats. It’s just us and the vets appaz, out there on a limb with our “beyond reasonable doubt”. Getting away with badness and thumbing our noses at the regulators if they can’t prove a thing to the criminal standard. Or, quite rightly being found innocent of a bogus charge because there is insufficient evidence – depending on your perspective.

The consultation document is actually quite an interesting read and thoughtfully and accessibly put together. It is quite persuasive, and sets out the shift in mood /expectation about this over the years by both regulators and by judges who have considered the issue (although it has not directly been determined). You can read it here.

But what took me to the consultation document was not a burning desire to learn about the caselaw and history of standards of proof in regulatory tribunals (though goodness knows it is practically all I ever dream about*) – I went to read it because I wanted to write this post, and thought I’d better make sure I knew what I was on about. I didn’t as it happens (proof, if you needed it, that blogging is good for continuing professional development).

What had driven me to write this post was not a comparison with other professionals, but the jarring in my own head of my “Hell no!” reaction with the conversation often had on this and other family law blogs (and with afeared clients) about the appropriateness of the civil standard in family proceedings concerning children, particularly those involving adoption.

There are many who would argue (and have argued repeatedly on this blog) that it is wrong that the law allows the removal of children from their family forever when they have been convicted of nothing, and when it has not been proved beyond reasonable doubt that their parenting is harmful or risky. Those are respectable arguments, but they don’t in fact represent the law and there are perfectly reasonable arguments in the other direction.

Although I’ve always been ambivalent about it (because one sees the awful consequences when the civil standard DOES lead to injustice), I’ve been able to articulate the very good reasons for the adoption of the civil standard in these cases : there are sound public interest reasons for doing so. Whether or not one is protecting a victim of domestic abuse through injunction or a child at risk of harm the civil standard gives you a better chance of protecting the vulnerable, and as such is justifiable on public interest grounds. It would be awful if child were left in or returned to a dangerous home and subsequently harmed because even though it was more likely than not that a parent had caused harm it couldn’t be proved to the criminal standard. The complexity in family cases comes in where there is a countervailing risk – of depriving a child of his or her family (forever in some cases) – brothers, sisters, parents, aunties, grandparents – when it wasn’t necessary at all.

Of course the lower the standard the greater the risk of injustice to the person “on trial”, and in children cases the greater the risk of wrongful removal. But…

If the public interest in protecting vulnerable children from abuse or neglect by parents means that it is legitimate to “find” parents guilty of abuse even where no criminal charge has been brought, and even where the evidence is likely insufficient to secure a conviction, then it is difficult I think to argue that the public interest in protecting the public from rogue or incompetent barristers should not lead to a similar conclusion in relation to disciplinary proceedings for the bar. It’s my career, but it’s somebody’s child. And there is a limited impact on the public we are protecting if some barristers are wrongly found guilty of misconduct (save insofar as it narrows the pool of good lawyers by one and may put off others from joining or staying in the profession so narrowing the pool further in future).

Though it makes me highly anxious as a professional, I have to acknowledge that if anything the public interest arguments in respect of the civil standard in family courts are stronger than they are in relation to disciplinary proceedings. The BSB consultation paper asks the very good question :

…why [should] barristers, and in some circumstances solicitors… be accorded what might appear to be preferential treatment as compared to other professions practising in the England and Wales?

and makes the very good point :

…it is not necessarily in the public interest for barristers to be able to avoid a disciplinary sanction when it is more likely than not that they are guilty of professional misconduct but a Tribunal cannot be “sure” of this. This position is likely to be perceived by the public as working in the interests of the profession and not in the interests of the public or consumers.

For sure I’d feel better protected against spurious or malicious complaints if the standard were higher, but if its good enough for my clients, and good enough for social workers it’s difficult to say that the bar is somehow special and should be treated differently.

The alternative conclusion of course would be to agree with those who argue for a criminal standard in family cases, and to argue that all the other disciplinary / regulatory bodies have got it wrong. I know the injustice that can be caused in individual cases, but it cuts both ways.

The Webster family suffered a grave injustice – they were exonerated but it was too late for their children to be returned. But Ellie Butler suffered a grave injustice too – findings made on balance of probability that put her away from harm were later overturned at a rehearing and she was subsequently returned into the care of her parents, and was subsequently killed by her father (whose conviction for harming Ellie had been quashed). Even with the civil standard Ellie ended up dead. The criminal standard wouldn’t have saved her. And any trial lawyer knows that even the civil standard is not to be sniffed at – many allegations made in family courts fail for want of sufficiently cogent evidence. Whatever the standard used accuser must prove.

Cases like Ellie’s and the Websters are fortunately rare, but though this is no comfort for those rare cases where the system doesn’t work inevitably no system is perfect. Adoption of the criminal standard would most likely result in more children being exposed to harm than the civil standard does. Neither can prevent all harm and injustice. But my strong, instinctive reaction to the suggest that I, as an individual, might be condemned on a lower standard for the public good is a reminder of how hard this is to come to terms with on an individual level.

 

*this is not true

 

Feature pic : Scales by Hittie Evie on Flickr (creative commons) – thanks!

Bog standard toilet humour – no law

With Family Justice down the pan, I thought I ought to start thinking about my next career.

So… Welcome to Familoo – home of the Family Toilet Seat!

It appears that not only does everybody need a thneed, but they also need a familoo toilet seat.

I’m kidding of course. This is a website that someone sent me a link to, from an Australian toilet seat company. Fair dinkum.

I don’t like to wee on their bonfire, but I’ve already got one of these in my bathroom, and very good it is too. But I don’t think it is a toilet revolution as mine is some other brand (I’m PRETTY sure I’d have noticed if it was called FAMILOO!).

Those for whom a Familoo is a useful bathroom accessory will be only too alive however, of the pressing need for someone to invent a device that will stop small boys weeing on the floor / walls / behind the loo. I reckon if I can patent such a genius  thing I will be able to retire a very wealthy Familoo.

Anyway, I’d like to thank the company behind this website for providing some very entertaining, if entirely puerile, toilet-humour amusement during my few minutes of work avoidance today. I have particularly enjoyed creating imaginary answers such questions as :

  • What material is Familoo made from? (90% sugar and spice and all things nice, 10% stroppy mare)
  • Will the Familoo fit my toilet? (probably, although there was once an embarrassing suction related incident requiring the assistance of a nice fireman)
  • If I move can I take my Familoo with me? (of course, I am your virtual friend – you can find me on twitter wherever you and your toilet are : @familoo)
  • What if my Familoo is faulty? (Familoo is never wrong)
  • Does the Familoo fit blind fixing toilets? (No. I’m a lawyer not a plumber for goodness sakes.)

Right, toilet break over. Now back to the serious stuff…

Love from (the real) Familoo xxx

Tip of the iceberg? You don’t say… the McKenzie Friend research

NOAAS National Ocean Service on Flickr

The research commissioned by the Bar Council in to fee paid McKenzie friends has been published today. In truth it contains few surprises, notwithstanding the Bar Council’s faintly bemused tone at the discovery that McKenzie Friends are McKenzie-ing mainly outside of courtrooms, where they are unregulated and unscrutinised and free to compete without the watchful eyes of a judge or disapproving lawyer upon them. Of course they are!

To those of us who pay attention to social media and what our clients and opponents tell us or let slip, the biggest “issue” with McKenzie Friends, is what goes on outside court. The “advice” before the hearing that colours the behaviour and responses of a litigant in sometimes imperceptible and sometimes oh so obvious ways – but always in ways which are difficult to deal with, because the whisperer is unseen and his advice can only be guessed at. And because such advice will often include cautions against trusting, believing or engaging with lawyers. Litigants come primed with suspicion.

There is plenty in the legal press already about this research report. You can read The Law Society Gazette here, or Barrister Magazine here. The former is said to be inaccurate by the lead researcher, the latter is not criticised by her – I agree that the Barrister Magazine piece is a useful potted summary of the research and its conclusions. In this post, rather than rehearsing all that, I want to offer some comments that have not been mentioned already and might otherwise not be aired.

Like the researchers, i would not want to condemn all McKenzie friends, some of whom are in fact an invaluable support to those who have nobody else to help them (whatever we think of the principle), and some of whom are indeed very experienced. But I have always been frank about my concerns as regards the absence of regulation of the activities of McKenzie Friends, because of the risk in any individual case that the McKenzie Friend selected will not turn out to be on of those invaluable ones, but will turn out to be positively dangerous or incompetent. This research doesn’t really allay those concerns any, not least because I don’t think it was focussing on areas where I see most risk for litigants.

The research is independent, but the reality is that the Bar Council will have commissioned it out of a concern that there were both access to justice issues AND issues for the profession. And it is to those twin purposes that will have shaped the framing of the brief.

It’s a shame in a way that the study was limited in the way it was, as a result I suspect of the Bar Council being (understandably) focussed on its own sphere of existence – the resulting study is open in saying that it was looking primariiy at on the role played by paid McKenzies in court, and in private law cases. Any fule could have told them that they were looking in the wrong place, just as we all said in response to the Judicial consultation that they were trying to regulate something that was mainly being done outside the Judges’ jurisdiction – and which was perfectly permissible in law as it was not a reserved legal activity – legal advice. Coming to court and sitting quietly in the open where we can spot someone being a bit of a pain or a wally – not our biggest problem. Not the biggest problem for anyone frankly. Sometimes very helpful.

There is in the response of the bar council a sort of weird slippage between McKenzie Friends doing McKenzie-ing (quiet support etc) and McKenzie friends exercising rights of audience. RoA is a whole different task which brings with it a whole different set of issues. There seems to be a prior assumption (not borne out by the research) that fee paid McKenzies would want to and were exercising RoA regularly, in some sort of project creep. In my experience it is often an exasperated judge who will grant RoA to a helpful McKenzie in order to achieve some semblance of clarity / progress – and not the other way around. The research bears this out – again no big surprise.

But it is not the bar’s advocacy toes that are at risk of being trodden on here – even those McKenzie friends are in court (paid or unpaid) rarely exercise rights of audience – and where they do this is usually because a court has decided it is likely to assist rather than hinder the individual case. No, it is our advisory toes that are being trodden on day in day out. But we haven’t noticed because we’ve got our bloody big clod hoppers on and are stamping around like the big beasts of the courtroom.

Litigants these days do their own legal research. They research the law, they research McKenzie Friends and yes, my friend, they research you and I. They choose in significant numbers to take advice from McKenzie Friends – sometimes paid, sometimes not. Litigants are most vulnerable to exploitation and bad advice long before they come into a court room. If this research is a good indicator many of them are more satisfied with their experience of McKenzie Friends than lawyers. We should reflect on that. And we should have enough humility to recognise that there may be some things McKenzies are doing as well as us or (gasp) that from the perspective of what some clients want and need, some may offer something we can’t (or won’t).

This research acknowledges frankly that it is likely to have produced a skewed and overly positive sample of McKenzies and their clients. The research makes the point that there are some good McKenzies out there. And it makes the point that in court things are perhaps not as bad as the hype. Most of the McKenzie clients reported satisfaction with the service and support provided – and in particular McKenzies come out well for client care. Legal professionals could, if they were wise, consider what lessons we might take from the fact that many (if not all) of those who have chosen this path, are happy with the outcome. That ought to tell us something about our client care as a profession (I say this whilst acknowledging of course that some of the more chummy approaches taken by McKenzies would not be compatible with appropriate professional boundaries / distance, and our duties to the court. I think that we can and should invest more energy into explaining better why a lawyer can’t be a “friend”, and help clients to understand our professional distance is a positive benefit, and not evidence that we don’t care or are simply money grabbing).

But what the report doesn’t (and doesn’t try to) convey, is the risk and prevalence of actual bad experiences that are likely to be befalling litigants outside court. That is a whole other research study. And it is for me where the real meat of it is (in saying this I’m not denying those who provide good help outside court.). For me, it ISN’T just about fee paid McKenzies – many of the good samaritan rogue / family justice crusader type McKenzies are (in my experience) NOT fee paid (or charge inflated “expenses” that they maintain are not fees at all). And they don’t operate just in private law field where there is no legal aid (the research only looked at private law). They operate too in the public law field where parents are entitled to legal aid. And they hold influence even over parents who are represented through social media and the internet and through networks of parents turned advisor/ campaigner (these McKenzies don’t have their own websites, they aren’t members of nascent “professional” bodies, and they operate through closed Facebook groups and private communication / word of mouth). I am unashamedly adopting a broad and unconventional definition of McKenzie Friends (Which technically is a term that only applies in court). Again, the numbers may not be great (although frankly it’s difficult to say – I could make a pretty long list of names myself), but that the problem exists is clear to those who care to look or listen to what parents are saying. Many of those parents however, do not view the McKenzies as the problem, but instead see it in the lawyers, the social workers, the system. And any negative outcome they have experienced is most likely to be interpreted as the inevitable result of the corrupt system than the result of acting on the advice received. Those cases make me very sad. They are lost opportunities – lost children – emblematic of the failure of the legal profession to make our case to the people we can help most.

And here’s the thing : in both fields (public and private law), a McKenzie Friend may be offering entirely lawful – but bad and unhelpful -“legal advice” alongside or instead of the instruction of a lawyer – suspected but unseen, and corroding the working relationship between a litigant and their own lawyer, let alone the other lawyers or professionals in the case. Difficult to deal with in individual cases, difficult to evidence, difficult to research. These are never going to pop up in a self-selecting sample.

Next time The Bar Council has a chunk of money burning a hole in their pocket I’d like to see them spend it on a research project about this issue (not holding my breath). And not one which self-selected the good guys*. But one which roots out the ones who are lurking in the shadows and messing up people’s cases. There may not be many, and they may not represent the typical – but they are there and they are dangerous,  And they are right under our noses if only we would bother to look. I foresee considerable methodological challenges with capturing this information and in finding a solution, but fortunately I am merely a lowly blogger and do not have the unenviable task of devising such a research project.

I hope I’ve accurately summarised the scope of this study, having put this post together after a long day at court and a long train journey with a patchy wifi signal. My area of interest really is in the stuff that hasn’t yet been looked at – I think the study is really valuable and hopefully will get the bar thinking about its “offer” (yucky jargon) – but I also think that it is not the whole picture. The study says the picture is mixed : indeed. But my own experience suggests that it is more complex and more varied than is represented in the sample that came forward for scrutiny. So we have a way to go before we really understand the risks and the benefits.

In the meantime the legal profession could focus on getting our message across more clearly, and on listening to what clients actually want from us. Our strength may be in our difference from the great unregulated – but that doesn’t mean we have nothing to learn.

 

*here again, I acknowledge the good guys but do not need to spend much time writing about them. I acknowledge also that the researchers tried to get a representative sample – but this was practically unachievable.

 

Feature Pic : NOAAS National Ocean Service on Flickr (creative commons licence – thanks!)