This week I’m going to talk about costs. Or rather, the
preoccupation with reducing legal costs that seems to be so high on the
government’s agenda – and which certain newspapers trot out without thought.
Ever since the Jackson Review of costs in civil litigation,
lawyers’ bills have been under the microscope. Nothing wrong with that: it’s
important to maintain checks and balances, and there is no doubt that some
lawyers milk the system to the exclusive benefit of themselves, with their
clients’ needs a distant second. But lately, the laudable aims of the Lord
Justice Jackson seem to have been hijacked.
The present government’s crusade to attack what it pillories as
the ‘compensation culture’ – a crusade which its spin doctors say is in keeping
with the spirit of the Jackson Review – amounts to a dumbing down of legal
services. The preoccupation with reducing cost is evident at every turn, as if
by driving down costs all the ills of the personal injury market will be cured.
This, though, is not the case. The situation, as with so much of life, is fluid
and complex rather than black and white.
By squeezing the market ever more and pushing costs down to the lowest
possible denominator, the government simply increases the prospect of
unprofessional representation. It cannot
be in the consumer’s interest to suffer an injury – one for which compensation
is properly payable – and yet discover that a barely qualified, inexperienced
practitioner is the only person available to take the claim forward.
Moreover, this, the commodification of legal services, flies in
the face of what is second nature to the true professional. It would serve the
government – and us, the taxpayers – well if it were to bear in mind what it
takes to act professionally, as stated in 1992 by Lord Benson. There were nine
key principles, and I’ve set them out in full below.
1. The profession
[in this case, the Law Society] must be controlled by a governing body, which
in professional matters directs the behaviour of its members.
2. The Governing Body
must set adequate standards of education as a condition of entry and thereafter
ensure that students obtain an acceptable standard of professional competence.
Training and education do not stop at qualification. They must continue
throughout the member's professional life.
3. The Governing
Body must set the ethical rules and professional standards that are to be
observed by the members. They should be higher than those established by the
general law.
4. The rules and
standards enforced by the Governing Body should be designed for the benefit of
the public and not for the private advantage of the members.
5. The Governing
Body must take disciplinary action, if necessary expulsion from membership,
should the rules and standards it lays down not be observed, or should a member
be guilty of bad professional work.
6. Work is often
reserved to a profession by statute – not because it was for the advantage of
the member, but because of the protection of the public. Persons with the
requisite training, standards and disciplines should carry it out.
7. The Governing
Body must satisfy itself that there is fair and open competition in the
practice of the profession.
8. The members of
the profession, whether in practice or in employment, must be independent in thought
and outlook. They must not allow themselves to be put under the control or
dominance of any persons or organisation that could impair that independence.
9. In its specific
field of learning, a profession must give leadership to the public it serves.
What underpins all of Lord Benson’s astute and sensible
points is the notion that to be professional is to act in the public interest.
The key factor, for Lord Benson, was the degree to which individuals in a
profession and their governing body acted ethically.
It is this, allied with a holistic view of the PI market
rather than a piecemeal approach, that will help lawyers provide the best value
to clients. The government should take note.
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