Lawyers need to be clear, open and ethical

On Monday the Law Society launches a new campaign. It focuses on the value of instructing a solicitor to provide sensible and accurate legal advice for personal injuries. Members of the public will be directed to advice on how to pursue a claim and, via the Law Society's Find A Solicitor search, they will also be shown how to find details of personal injury solicitors near them.

I welcome this campaign, not least because it promises to take "a bold, humorous and memorable approach" to convey an important message. Exactly what that approach is remains to be seen, but sources tell me that this is a non-aggressive and well-judged campaign.

Justice, not profit

It's also a timely one. Misinformation about the mythical 'compensation culture' continues to run deep, colouring the public attitude to all lawyers but especially those in the personal injury sector. In fact, far from being unscrupulous ambulance chasers (another regrettable and unfounded media cliché), the majority of personal injury lawyers are ethical individuals who come into this area of the law because they want to help the individual against what are often large and faceless conglomerates. The motivation is securing justice, not personal profit.

This is seen in personal injury cases from road traffic accidents to complex clinical negligence claims. Clients seek legal advice because they have been injured, through no fault of their own; it is the solicitor's duty and privilege to serve them and their families.

Unfortunately, as reported by the ever excellent Legal Futures website, on the eve of the campaign a law firm has been reprimanded for a radio ad which encouraged accident victims to claim compensation "irrespective of injury".

The Advertising Standards Authority (ASA) received a complaint regarding a radio ad by a firm called KL LLP, which trades as Secure Law. In the ad, listeners hear a woman telephoning a man, asking why he's late and if everything is OK. He replies: "Yeah fine, I just had a little bump in the car." He then says again that he is "fine" and asks for Secure Law's number.

I have not listened to the ad, but apparently the man repeats that he is "fine" for a third time, before a voice over states: "If you've been in an accident, make the second person you call Secure Law. They offer a no-win no-fee scheme, give you 100% of your claim and an upfront payment of up to £1,500."

An "irresponsible" radio ad

In its adjudication, the ASA said the firm argued that the ad "could not encourage someone to make a personal injury claim if they were not injured, because it would be censored by the Solicitors Regulation Authority, and would in all probability be put out of business, if not convicted in a court of law". The firm also evidently made much of the fact that the word "injury" wasn't mentioned in the ad.

The ASA rejected KL LLP's arguments. Upholding the complaint, it found that the statement "If you've been in an accident, make the second person you call Secure Law" encouraged listeners involved in road traffic accidents to contact Secure Law to claim accident compensation. The ad failed to make clear the basis on which the man had any grounds to make a claim and, concluded the ASA, was "irresponsible" because "the implicit message encouraged listeners to make a claim irrespective of injury."

The Law Society’s personal injury ad campaign, which will run for six weeks, will make use of radio ads for the first time; it is also planning to release a YouTube video.

Meanwhile, the campaign brings into focus a lesson that I believe all of us who work in personal injury law would do well to take to heart. We must remember is that if we want the public to believe in us - and to realise that a toxic blend of governmental and insurer-driven spin is what drives the misinformation about personal injury law - we lawyers need to be transparent at all times. We do a great deal of fantastic work for injured people, but in our communications there shouldn't be any room for doubt. If only we could be clear, open and ethical at all times, we might find that the media stigma of b'lame and claim' becomes a relic from an unlamented past.

Refreshingly Boring - but Ethically Sound

It's rare, in today's world, to be heartened by anything to do with the banks but that is precisely how I feel thanks to last week’s story about Barclays' boss Antony Jenkins.

Jenkins has told the bank's 140,000 staff to buy in to its new code of conduct - or leave.

Leading by Example

Described by The Guardian as "a refreshingly boring banker", Jenkins has had his work cut out since his appointment at the end of August last year. He replaced Bob Diamond when the former CEO was forced out by the Libor fixing scandal. Barclays was fined £290m in June 2012 for its part in the scandal, and its troubles didn't end there. It is fair to say that Jenkins walked into a maelstrom, with a daunting task: to restore public confidence in an institution whose reputation has been absolutely shattered.

How to do this? Doubtless spin-doctors would come up with a variety of clever strategies, and it is just as certain that behind the scenes Jenkins would have been met with a bewildering array of tasks. But, for me, one thing was blatantly obvious: Jenkins needed to bring sound ethical principles back to Barclays. He needed to establish a professional ethos and set the tone and lead by example.

An Ethical Blueprint

Last week's announcement that bonuses and performance will now be assessed against a new 'purpose and values' blueprint goes some way to achieve this. Jenkins has not pulled his punches, and, in telling staff to sign up to five key values - respect, integrity, service, excellence and stewardship - he has positioned himself and Barclays firmly against the malpractice of the past.

Consider his words, as disseminated in a memo last Thursday:

"I have no doubt that the overwhelming majority of you … will enthusiastically support this move. But there might be some who don't feel they can fully buy into an approach which so squarely links performance to the upholding of our values. My message to those people is simple: Barclays is not the place for you. The rules have changed. You won't feel comfortable at Barclays and, to be frank, we won't feel comfortable with you as colleagues."

Jenkins' firm leadership is to be applauded. It is a stance that those in positions of power, whether in politics, the professions or elsewhere, would do well to emulate.

Deliberate handball or not, cheating is wrong

Regular readers will appreciate that perhaps two or three times a year I stray 'off piste', as it were, with the content of my blog. Forgive me, this is one such occasion - and once again football is responsible. This time, though, it raises a question that dovetails with many other themes aired on this blog.

On the back of the latest controversy involving Luis Suarez, I want to ask: what sort of society do we inhabit when the actions of the Liverpool player are lauded as professional?

I refer, of course, to the striker's handball in last Sunday's FA Cup Third Round tie against Mansfield Town. Suarez took a fine pass from Stewart Downing in his stride and shot on goal, only for his shot to be blocked by a Mansfield defender. However, Suarez never gives up and kept running - so much so that the rebound came his way. Into his right hand's way, that is. Having controlled the ball with his hand, it fell kindly in his path, enabling the player to smash the ball into the bet.

Deliberate or not?

Was it deliberate? It seems that the match officials thought not. They felt that this was a case of accidental handball, of ball to hand rather than hand to ball. Suarez's goal stood, and Liverpool went 2-0 up. They went on to win the tie 2-1 despite valiant efforts by their non-league opponents.

After the match there was plenty of condemnation of Suarez. But leaving aside what only Suarez can know (whether his action was deliberate or not), I found the verdict of a number of seasoned former footballers extraordinary. The majority suggested that Suarez had no obligation to own up to having cheated – if, indeed, that is what he did. Their view was that as a 'professional', Suarez was duty-bound to do the best for his team, so that even if he had cheated his duty was to keep quiet - to get away with it if he could

This brings to mind the 'professional foul' in football, that which is cynically inflicted but which everyone who watches the game seems to accept is a natural part of its fabric.

For football, read the professions

Why should it be? Why should we allow the so-called 'Beautiful Game' to have ugliness at its heart? And what does it mean for society when the country's most popular game either blatantly, at worst, or tacitly, at best, condones cheating?

There is a parallel here with professionalism in other walks of life, notably law and politics. Too often, we appear to turn a blind eye to breaches of ethical codes and rules. It seems that we only object when something is outrageously bad - or when a journalist exposes the truth. As in football, it is almost as if we expect a degree of cheating. This cannot be right. For football as much as the professional sector, the highest standards of fair play and ethical rigour should prevail.

I appreciate that there will be other equally legitimate views on this vexed topic, and would welcome hearing these, as well of course as any more supportive views.

Cash for Access: a Question of Equity?

A new year dawns. The first thing I'd like to do is wish all my readers the very best for 2013. This salutation naturally extends to all Spencers' clients and staff. It goes further, too, to anyone unfortunate enough to be the victim of an accident.

Next, though, some less than upbeat words. Here we are, in the first week of 2013, and already the media is reporting on a story which has ethical laziness written all over it. I am referring, of course, to the latest cash for access scandal.

It seems that a number of all-party parliamentary groups have been sponsored in return for invitations to Westminster events. At the events, high-placed individuals from arms manufacturers, pharmaceutical companies and foreign governments get to meet MPs, peers and policymakers. Can those in receipt of financial donations really say they remain unmoved by the representations, over cocktails, of big business, keen to mould policy to its own advantage? Perhaps. But the fact that we have to ask the question, of those in positions of power and trust, cannot be right.

On Wednesday, The Times disclosed a number of worrying contributions to, for example, The Associate Parliamentary Health Group and The Parliamentary Internet Communications and Technology Forum. I won’t go into the specifics - not least because it seems fair to see what those allegedly in receipt of the funding have to say about it - but I will say that, if true, this matter once again raises grave concerns about ethical standards in British public life.

There is an old principle in the law: 'He who comes to equity must come with clean hands'. The focus of the doctrine is on the notion that a petitioner seeking an equitable remedy - that is, one beyond the letter of the law - must not have acted wrongly in the first place.

If you will allow me to extend or, rather, reverse the metaphor, this saying has resonance with the yet another cash for access story and the ongoing failure to adhere to unimpeachable professional standards in this country.

In other words: will 2013 be the year in which those in positions where they can dispense equity – those in positions of power - finally act with clean hands? I hope so.

Treat journalism as a profession with its own ethical charter

The following letter by John Spencer appeared in The Times 5 December 2012.

Sir

Few people seem willing to confront the most obvious question the Leveson Report raises about public life in Britain: the systemic lack of professionalism in so many walks of life.

Britain has become a country whose relationship with sound ethical principles has become, at best, ambivalent, and, at worst, non-existent.  Perfectly sensible laws exist to criminalise phone hacking, and yet they were routinely ignored. The reason is not that the laws lacked force, but that our culture has mutated into one which puts profit before duty.

This was evident in the MPs' expenses scandal, and it has been clear to see in the arena of personal injury litigation, where spam text messaging and unscrupulous behaviour by insurers and others continue to proliferate.

The solution to the issues highlighted by Lord Justice Leveson is not statutory underpinning, still less any form of more invasive legislation, but a wholesale reinvigoration of the notion that duty comes before profit. While the duty of the professions is to serve their clients, the media's duty is to serve the public. The two things are one and the same. They would not be problematic if it were the case that all those involved acted in accordance with the highest of ethical principles.

Yours

John Spencer

Director, Spencers Solicitors 

Into the Twitterverse

For many lawyers of a certain age, Twitter is baffling. To be fair, it’s not just lawyers who are perplexed by the 140-character publishing phenomenon that is Twitter. Many people of middle age and beyond find Twitter incomprehensible too; including myself until relatively recently I have to confess. Why, they ask, would anyone want to share thoughts that are, by definition, on the minimalist side – and who on earth is interested?

A cursory glance at some Twitter statistics provides ammunition against the opponents. Stephen Fry has over 4.5 million followers; as of 15 August, @BBCBreaking (BBC Breaking News) could boast of 3,824,931 followers. From celebrities to news channels, then, Twitter has emerged as a viable – in fact, vital – means of disseminating their message and generating interest in either their lives (we can all know what Mr Fry had for breakfast, if we wish) or what they have to say. Needless to say, companies have seen value in Twitter, too: organisations from Google Inc to Starbucks have developed a strong Twitter presence, with legions of followers.

At Spencers we haven’t been resistant to Twitter, but it’s fair to say that we haven’t utilised it as much as we should. Not any more: look out for plenty of tweets from yours truly from now on. I think Twitter is a great way of conveying news and information about developments in the PI legal sector, from referral fees to plans to extend the RTA Portal. Please take a look at @SpencerSols and @JohnSpencerLaw for more.

Meantime, for those of you who may also have been slow to Twitter but now see its value, I’ve been brushing up on my media law. There are a number of pitfalls to be wary of, and here, indeed, one can see the difference between the generations. People of my age, whether legally qualified or not, will readily understand that legal liability could flow from the misuse of software like Twitter, while the younger (especially teenage) generation probably have little or no idea of what could go wrong as a consequence of a poorly judged tweet. Here, then, are some guidelines.

1. A tweet is subject to the law of libel. While my friends in media law tell me that this isn’t entirely settled law, it is generally agreed that a tweet has sufficient permanence to be regarded as publication in written form (rather than a verbal communication, which would be treated as slander). This means that something libellous – for example, saying that someone is a liar, or dishonest, or corrupt – could lead to the publisher being sued. The usual defences to defamation claims will apply, but if in doubt, don’t tweet.
2. Tweets can fall foul of the Communications Act 2003, which prohibits the sending of grossly offensive communications or those of an indecent, obscene or menacing character. This provision was recently in the news with the conviction of Paul Chambers for sending a tweet saying “... I am blowing the airport sky high”. In a victory for common sense, Mr Chambers’ conviction was overturned, but persistently malicious or threatening tweeters won’t be so lucky. The moral is: don’t use Twitter to vent your fury.
3. Likewise, don’t use Twitter to harass someone. Doing so on two or more occasions could amount to harassment under the Protection from Harassment Act 1997.
4. If you intend to disclose personal or confidential information on Twitter, take care: the Data Protection Act 1998 may apply. For employees authorised by their employers to tweet, take care not to disseminate personal information about colleagues – and be careful, however upset  by your boss you may be, not to disparage your employer via Twitter. You would almost certainly be in breach of your employment contract.
5. There are other ways in which Twitter could be misused. A tweet could amount to a misrepresentation, it could amount to a fraudulent statement, or it could be actionable as a malicious falsehood.

The bottom line is this: as with all social media, use your common sense. If you behave courteously and respectfully, you won’t break any laws. If you have something useful to say, you should find that you acquire followers who enhance your personal reputation or that of your business. If you can help people into the bargain – by keeping them up to date with developments in their sector and sharing information – so much the better. It’s this that we hope to do via @SpencerSols, so please take a look and let us know how we’re doing.

Post-Chicago Musings

Last week my first overseas blog appeared. It came all the way from Chicago, Illinois, where I was attending the American Association for Justice annual convention. This week’s blog again has an American flavour, as I reflect on lessons learnt during my stay at the Chicago Hilton, where the conference was held.

I’d like to add to the two general points I made last week (that wherever one finds oneself in the world, claimant lawyers are engaged in an adversarial battle with insurers, and that claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover). In a sense, what I am going to say is also a general observation, but nevertheless I think it’s an important one.

Put simply, I think that rather than knocking the American litigation landscape we should look at it objectively and ask if it has a thing or two to teach us. I think it does, for reasons I will explain.

The British tendency is to categorise American lawyers as ambulance chasers (or worse). Our press regularly skews coverage of American legal proceedings to paint a picture of a system in which pre-trial jury selection is bizarre, and where US lawyers habitually exaggerate or even invent claims. But while there is rarely ever smoke without fire – some claims about the excesses of American lawyers are undoubtedly true – if you scratch a little deeper there is much to be said in favour of the American way.

The main reason I say this is because the American system is underpinned by a belief that the client comes first. An American claimant who secures recompense for an injury is not condemned as being part of a ‘compensation culture’. Instead, it is accepted and understood that a claimant’s lawyer will do everything in his or her power to gain as much as is properly due for a client. The client’s needs come first, which means that no stone is left unturned in the preparation of a case. Yes, this dovetails with a financial incentive for the lawyer involved, but in America there is recognition that lawyers have businesses to run. That they might make a profit is not viewed as something wrong and unpalatable.

Contrast the way in which civil litigation has developed in Britain – and the way it is heading. Recent years have seen successive reforms which, put together, make it harder and harder for British solicitors to represent clients to the best of their ability. There is a sense, here, that lawyers who make a decent living are somehow ‘evil’, that they fuel the ‘compensation culture’ which is so hated by the government.  This also leads to a very worrying knock-on effect for clients potentially, in creating an environment in which early settlement, at a fraction of what a client could have obtained in damages, will be become difficult to resist. There is some statistical  evidence of this which has recently been presented to the Ministry of Justice by Professor Fenn.

The emphasis, here, is on getting rid of claims quickly, at low cost. In America, the focus is on getting the right result. Here, the beneficiaries of the system can be insurers; in the States, the client’s case is the main thing, and is never or at least rarely sacrificed..

Doubtless there are issues with the American personal injury system. As I say, the point I am making is a general one. Likewise, the way we do things here is not all bad. But my trip to America reminded me of the real role of the personal injury lawyer: to serve injured people. I think we would all do well to remember this rather than uncritically accept governmental  soundings off about the ‘compensation culture’.

Or, put another way, if you were the victim of a serious accident, through no fault of your own, would you rather obtain the maximum compensation to which you were entitled – or settle the case early so that the insurers didn’t have to make a hefty payout?

Postcard from Chicago

This blog is a first. In contrast to my usual musings, which are penned at various places in the UK, this one comes all the way from Chicago, Illinois. And no, before anyone tells me that I must be a workaholic, I'm not here on holiday.

I'm here as an attendee of the American Association of Justice (AAJ) annual convention, which is being held at the Chicago Hilton. The AAJ has been going for over 65 years, and previously  known as the Association of Trial Lawyers of America (ATLA). Its purpose is to support plaintiff lawyers of all guises, making for (as its website puts it) "a collective voice of the trial bar on Capitol Hill and in courthouses across the nation".

The AAJ's annual conference is attended by trial lawyers of every hue. There are seminars for trucking litigation lawyers, for those specialising in chiropractic malpractice litigation, birth trauma litigation and various kinds of pharmaceutical litigation. There all manner of other lectures and talks, all of which enable the open exchange of information and cutting edge know-how. I felt it was important to get a sense of how American lawyers deal with the kinds of issue that Spencers Solicitors handle, and so booked myself in for the four day conference.

The experience has been illuminating and when time allows I may write in more detail about it. For now, though, I will observe that two truisms seem to apply to the legal world on both sides of the atlantic.

Firstly, claimant lawyers are engaged in an adversarial battle with insurers. The latter subject to a minority exceptions seem to seek to minimise their liability at every stage, rather than remembering that without the people who take out their policies they wouldn't be in business. If only, as I have often argued in this blog, there could be a more constructive dialogue between insurers and claimant lawyers - if only a more holistic approach could be taken to the question of a victim's right to compensation - much time, cost and anxiety would be saved.

Secondly, claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover. While there may be merit in this in some ways, it cannot be right if the effect is to jeopardise a victim's ability to secure compensation to which he or she is rightfully entitled.

A final, more tangential observation is that it's true: American lawyers really are more theatrical than their British counterparts. They certainly don't lack for confidence and character. Last night, for example, my daughter Esme (who is accompanying me on the trip) booked us into Buddy Guy's Legends club. This is one of the most famous blues clubs in the world, and we had a fantastic evening watching brilliant musicians like Eric 'Guitar' Davis and Corey Dennison. As the evening wended on I found myself talking to a chap at our  table. He was confident and charismatic - and turned out to be an appeal judge from North Carolina.

Somehow, one doesn't seem to meet Court of Appeal judges in Ronnie Scott's club in the heart of the West End. That's not to say they don't like jazz - in fact, I suspect quite a few of them do - but it is to say that they'd be hesitant about striking up a conversation with a complete stranger. Not so in America, and tonight Esme is taking me to another blues club. I'll be surprised if any lawyers who happen to be there are backward about coming forward.

Looking back on the ideology of the law

I was pleased to see a number of comments to my post last week, in which I argued that being a PI lawyer is a rewarding and fulfilling occupation rather than the selfish, profit-driven role of media cliché. Since writing that piece, I’ve been thinking about what draws people to the law as a career. Are there lessons to be learnt if we cast our minds back to what propelled us into the legal profession in the first place?

My story is perhaps typical, in that I wasn’t motivated by ideology pure and simple. But it’s also typical, I think, given that when I look back on it, I realise that an ideological commitment was present, if ill-defined, by dint of the very nature of the law.

I qualified as a solicitor in 1985. My entry into the law came via a mixed social sciences degree at Hatfield Polytechnic. My first love was economics, which was part of the degree, but as time went by I found the maths involved more difficult. Law, though – which was also part of the degree – came more easily. I gravitated increasingly to law and then discovered that if I majored in it I was deemed to have completed what was then known as the ‘Part 1’. (Qualifying as a solicitor entailed Parts 1 and 2; compared with today, passing Part 1 was the equivalent of completing a law degree or the Common Professional Examination.)

I went on to complete Part 2 (the equivalent of today’s Legal Practice Course) at Leeds Polytechnic. For a time, I flirted with the idea of becoming a barrister, but ultimately settled to the solicitor’s calling. The reasons, when I look back on it, dovetail with the points I made in last week’s post. Early on in my articles, I realised that being a solicitor meant helping people. They would come into the office with all manner of problems, and the solicitor’s job was to help them find solutions. The work was meaningful and interesting, and it meant being intimately involved in people’s lives.

Many years have since passed. I have worked primarily as a litigator throughout my career, with two abiding specialisms: child care and PI law. I also enjoy the business side of the law, a factor which has been instrumental in a previous role in one firm as managing partner and which now provides a large slice of my day’s work at the helm of Spencer’s.

But if ideology was not a core driver when I joined the law, it was nevertheless key to every lawyer’s practice when I entered the profession. Lord Benson’s principles of ethical behaviour were second nature. They were inculcated at degree level, throughout articles, and by one’s peers as one’s career developed. What happened, then, was that ideology was absorbed as if by osmosis. Solicitors were trained to put the client’s needs first, and think of their own profit second. Of course, some solicitors bucked this trend, but I strongly believe that the majority epitomised Benson’s ideal that ‘ethical rules and professional standards ... should be higher than those established by the general law’ .

Things are different today. All manner of incursions have been made into the law as it was 30 years ago. The ABS regime is the most obvious, but it is part of an overall commodification of legal services – the ‘Tesco law’ blueprint which threatens to alter the legal landscape beyond recognition. I strongly support greater efficiency, eradicating all waste and moving with the times, but this should never be at the expense of professional standards.

When I look back on my decision to join the law, I realise that one of its prompts was pragmatism – the sense that here was a good career, which would provide me with a living. But why was the law so obviously a ‘good career’? I think it had this flavour because of the way in which solicitors conducted themselves, because of the sense of duty and service that went with the territory.

Ideology, then, was there all along, and as we look at the many changes to today’s legal landscape it strikes me that it would be no bad thing if it were foregrounded for today’s young lawyers. Lord Benson’s principles should become second nature to them as much as they were for those of us who entered the law two decades or so ago. 

Why become a personal injury lawyer?

In America, the ambulance chasing personal injury lawyer is a staple of press vilification and TV caricature. Here the portrayal isn’t quite as negative and all-pervasive, but we personal injury lawyers are sometimes tarred with the same brush as our transatlantic brethren. The media likes to depict us as ruthless and aggressive, a breed of lawyer who, if at the scene of an accident, only sees pound signs flashing. Why, then, become a PI lawyer?

There are plenty of reasons. The first is that the stereotype is wrong. Granted, some PI lawyers are unscrupulous and money-minded, just as the same can be said about some doctors, or accountants, or architects, or anyone in any of the professional services. But most of us enter this sector of the law because we’re motivated by a number of things that have nothing to do with money. Here are a few:

• PI lawyers are passionate about justice. We see people who have suffered injuries through no fault of their own, and we want to help them obtain redress. No wonder that PI law is a branch of tort law, and that the word ‘tort’ is French for ‘wrong’: we’re in the business of trying to right wrongs.

• People are what PI lawyers are about. We’re naturally curious, gregarious types. We like meeting people. We care for them. That’s why we like acting for the individual rather than corporate entities. For us, there is a huge amount of satisfaction to be had from seeing a client’s case through either to victory in court or a satisfactory settlement.

• A motivation for a great many PI lawyers is that they will spend their working lives immersed in the fabric of life, not buried in documents – as is the case for lawyers in other areas of the law. If you work as a PI law you won’t spend all your time swamped by paperwork.

• But so too is PI law challenging. If you enter this area of legal work, you will never be bored. There are cutting edge developments all the time and you won’t lack for intellectual stimuli. 

• Because PI law is so enmeshed in daily life, you learn something new every day. What you learn can be applied to your own life. It will make you more aware of your rights and responsibilities, and better able to make informed choices and decisions. 

• Perhaps more than any other sector of law, PI law is about communication. It’s about argument, too – for example, your client’s claim will be opposed by insurers. Working in PI law therefore means that you’re always on your toes as a communicator and an advocate. These are transferable skills that you can apply across the board in your life. 

• Above all else, PI law is about passion – passion for justice, for helping people, for doing the right thing; passion for its unique mix of law and practicality and for the chance to make a difference.

If the above resonates, you might be just right for PI law. And if so, ignore the ambulance chasing tag. It’s a tired old cliché. The truth is that duty comes before profit. This should be the motivation for every lawyer, not just those of us working in PI. 

Principles lost? The loss of professionalism in the personal injury system

In 1992 Lord Benson stated there were nine key principles of professionalism to which lawyers should adhere. Two, in particular, should be second nature to lawyers: the principle that ‘ethical rules and professional standards ... should be higher than those established by the general law’ and the principle that legal practitioners ‘must not allow themselves to be put under the control or dominance of any persons or organisation that could impair that independence’.

Regrettably, adherence to these principles is not always second nature, especially if we take a bird’s eye view of the personal injury sector. Here, as well as potentially referral fees – which the government intends to ban – there are a myriad of other practices which conflict with Lord Benson’s principles. Alternative Business Structures (ABSs) have been heralded as signalling a brave new world but they create a route to absolute ownership by insurers, who then effectively bypass the referral fee issue and achieve wholesale ownership of the entire process, from providing insurance as an indemnity insurer to solicitors making the claim against the third party. The government’s failure to any action given that ABSs will have this effect is symptomatic of a worryingly piecemeal and uncoordinated approach to the referral fee problem.

Some might say that the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) will reform the personal injury sector. It professes to ban referral fees but, given the loopholes carved out in various places, is likely to be a paper tiger. Moreover, simply banning referral fees will not show insurers, CMCs and indeed some solicitors the error of their ways; in all likelihood, it is likely to push the practice further into the shadows. New practices will inevitably be devised which will share the detrimental and profit-driven features of referral fees. Some in the PI industry have already described to me the receipt of calls from CMCs offering to sell information with regard to prospective clients under the guise of ‘marketing information’ – a euphemism for ‘referral fee’. 

It was the proliferation of referral fees – and their associated, seemingly endless ancillary services such as car hire and medico-legal services – which have done so much damage to the PI system. Wedded to these are the advertising campaigns which CMCs and some solicitors have embarked upon. Not only do they sail dangerously close to inciting litigation, they cheapen the legal profession to such a degree that the title ‘ambulance chaser’ is not an entirely inappropriate label. Add the sale of personal data and underhand marketing tactics such as spam text messages, and we are faced wholesale systemic failure in this vital branch of the law.

If we want to grapple seriously with all the issues, we need wholesale cultural change. The government’s piecemeal, reactive approach is flawed. The interests of the public and victims of accidents must be the priority in the minds of all professionals, with profiteering stamped out.

Cynics might say such a utopian ideal for the PI system is unattainable. However, I would counter that it can exist if we rediscover and implement Lord Benson’s wisely drafted principles.

What underpinned Lord Benson’s approach is the notion that to be professional is to act in the public interest. The barometer by which he proposed to measure the standard of the profession is the degree to which individuals and their governing body act ethically. These principles should be the foundation of reform, and, even more important, practice. If the mindset of all the participants within the personal injury system is focused on acting ethically in the public interest, there will be no need for ‘catch-all’ regulation. Although a minority may still exploit loopholes in the system and evade regulatory oversight, they will eventually be stamped out by market forces. In fact if you speak to potential private equity investors in the profession, they see the value of retaining and emphasising professional standards.

Such a picture may seem uncharacteristically optimistic from someone who has written of his dismay about our industry and current efforts to reform. However, for every organisation or individual I have encountered who has displayed contempt for the public good, I have met dozens more who wish to do the best for their clients. It is because of this that I am certain that our profession and the industry can save itself from ruin and regain the principles which have been lost.

For any readers who are APIL members it is intended to publish a fuller article on this subject in the May edition of Focus, or if you are not and prefer please let me know and I will provide a full copy of the article.