Lisbon-bound for the NYSBA seasonal meeting

Today, I’m Lisbon-bound for a conference hosted by the New York State Bar Association at the Pestana Palace hotel. By all accounts this is a fine, city centre hotel, though I’ve opted to stay away from the hustle and bustle at The Oitavos Hotel, some 40 minutes drive from Lisbon.

This is my first trip to Lisbon, and next week I’ll post a snapshot of my impressions of this venerable and historic city. As I write, however, the task in hand is preparing a short speech I’ll give on Saturday morning, as well as a panel discussion. Between 9.00 and 11.00am, debate will centre on Alternative Law Firm Structures around the world, in a plenary session chaired by Kenneth G. Standard of New York firm Epstein Becker & Green. Other panellists include Vasco Marques Correia, the president of the Lisbon District Council of the Portuguese Bar Association; Junlu Jiang, of King & Wood Mallesons, Beijing; and Steven Younger, from Patterson Belknap Webb & Tyler LLP, New York.

I will be talking about Alternative Business Structures (ABSs), first proposed in Britain six years ago by Sir David Clementi, then given statutory footing in 2007 by the Legal Services Act and finally ushered in by the Solicitors Regulation Authority earlier this year. ABSs were much touted prior to their arrival as heralding a brave new world that would be of great benefit to consumers. They would allow non-lawyers to own and invest in law firms, thus revolutionising the legal profession because clients would have a cheaper, one-stop option for their legal needs.

Among those who sounded cautionary notes about ABSs were sole practitioners and small firms, who were wary of the notion of ‘Tesco law’ and ‘one size fits all’ for legal problems. I was also dubious about ABSs given the way in which they could be deployed to circumvent the Ministry of Justice’s  ban on referral fees in personal injury cases to be implemented in April 2013.  Because ABSs enable insurers and claims management companies to own and invest in law firms they can sidestep the MoJ’s efforts. It cannot be good for the consumer for a culture to arise which sees insurers start handling PI claims from start to finish.

In Britain, the take-up for ABS licences has been relatively slow, but the bandwagon is moving. More and more law firms are set to form alliances with other businesses, creating more ABSs. I do not object per se to the idea of ABSs, provided not only that a watchful eye is maintained on their ability to sidestep the ban on referral fees but also that the profession as a whole abides by its age-old principles. By this I mean that professionalism and ethical conduct must not be allowed to play second fiddle to the commercial dictates of outside ownership or too obsessive a focus on shareholder value.

The danger, with ABSs, is that he who pays the piper calls the tune. As lawyers, our tune must sing to the client’s good, first and foremost. ABSs are acceptable, so long as this is not forgotten. This is the most serious issue for debate.

Changes to the RTA Portal need clarity of thought

This time next week I will be attending an interview. Well, not an interview in the traditional sense of the word, but an interview with Andrea Nicholls of College of Law Media. As part of a video series for Continuing Professional Development (CPD) for lawyers, Andrea will be asking me a number of questions about the RTA Portal, the electronic Portal put in place nearly two years ago to support the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

I’m looking forward to this particular interview – and my good mood is not solely down to the fact that Fernando Torres has remembered how to score goals. I can’t help but be pleased by this development, not least as last weekend’s 4-2 win at Aston Villa has helped put Chelsea back in with a decent shout for a Champion’s League place, but I'd applaud the approach to the interview for another reason, and it can be summed up in one word: clarity.

Andrea Nicholls is a writer-presenter as well as an employment lawyer, and she has kindly sent through a list of pre-interview questions which are well expressed. Combined with further clarification in discussion hopefully Andrea will have ensured the session meets the objective, of practical and relevant advice to practitioners. 

Andrea tells me I can’t wear blue – apparently, I will be rendered akin to the Invisible Man if I do – but aside from this modest disappointment (see above: it’s a Chelsea thing) I couldn’t have been treated more courteously before a televised interview. I’m optimistic that we will, as Andrea hopes, end up having a relaxed and yet informed conversation rather than a stiff and stilted interview. But if Andrea’s questions about the Portal are a refreshing model of clarity, regrettably the same cannot be said of the government’s proposals for change in this area.

Here, clarity of holistic thought is sadly as absent as Torres’ goal-scoring for most of this season. This is especially so when it comes to the ABI inspired proposal to fix at £300/£400 the fee for low-value road traffic claims handled through Portal. This would amount to a dramatic reduction from the present fixed costs of £1,200.  In reality, the protocol requires over eight hours of work.  The danger is obvious namely that such a slashing of costs will encourage or even force cutting of corners; in any event, it can only prompt a lack of professionalism, perhaps even encouraging spurious claims and even fraud.

The Ministry of Justice has begun meetings with stakeholders over its plans to make changes to the Portal, a key limb of which is extending the Portal to a £25,000 limit (a £15,000 increase from the current cap). This, too, is fraught with difficulty, both in the apparent rush with which the MoJ want to see the changes implemented – within just a year – and the extension of the Portal to covering employers’ and public liability accident claims.

As with too many of the initiatives emanating from the government in the personal injury sector, there is a sense both of undue haste and that a bandwagon is being pushed headlong to an uncertain fate. What is required is a holistic approach and a sensible consideration of the practical workings of the Portal, so that such changes as are made are in the best interests of the injured person as well as the public at large.

If only the government could adopt some of Andrea Nicholls’ clarity of thought. Meantime, I will continue to look forward to next Wednesday’s interview – and albeit that I can’t wear blue, I will also hope that Fernando Torres sustains his return to form, particularly since I sit finalising this blog in the Aziz deli, round the corner from Stamford Bridge, and before doing battle with Benfica!