One Good Man — Part Five: Leave the Lawyers to Sort It Out
"Leave the lawyers to sort it out."
It is a remarkably convenient phrase.
The civil servant can make the decision.
The administrator can impose the condition.
The prison officer can take the action.
The politician can announce the policy.
And if somebody complains that what has been done is unlawful, unfair or unjust, there is always another department waiting somewhere in the background.
The lawyers will sort it out.
Except that lawyers are not some magical mechanism for turning injustice into justice.
They are human beings too.
And they operate within an economic system.
The Price of Justice
One of the most uncomfortable things I have learned from my experiences with the Jersey legal system is how quickly the question of justice can become a question of economics.
How much is the case worth?
How much can the client afford?
How much time can be justified?
How much work is commercially sensible?
And perhaps most importantly:
How much effort is somebody prepared to spend before the cost becomes inconvenient?
Those may be perfectly legitimate questions in an ordinary commercial transaction.
But justice is not an ordinary commercial transaction.
If somebody's liberty is at stake, the value of the case cannot simply be measured by the amount of money that can be recovered.
If somebody's reputation is at stake, the importance of the case cannot be determined solely by the size of the legal bill.
If somebody has been deprived of their rights, the question cannot simply be whether defending those rights represents a commercially attractive use of a lawyer's time.
Ten Minutes or Two Days?
I have sometimes found myself confronted with a choice which seems absurd when expressed in its simplest terms.
Spend ten minutes dealing with the problem.
Or spend two days actually investigating it.
Ten minutes is cheap.
Two days is expensive.
So what happens?
The temptation is obvious.
Do the minimum.
Give the client an answer.
Move on to the next matter.
There is nothing necessarily sinister about the individual making that calculation. Lawyers have businesses. They have employees. They have overheads. Their time has an economic value.
But there is a point where commercial rationality and justice begin to pull in opposite directions.
And when that happens, something has to give.
If the lawyer chooses the cheapest course simply because it is the cheapest course, the client may be the person who pays the real price.
Not in pounds and pence.
In lost opportunities.
In lost liberty.
In damaged reputation.
In years of unnecessary litigation.
In decisions that cannot easily be undone.
The Client Is Not a File
This is one of the things that concerns me most about professional systems.
The human being can disappear.
There is a file.
There is a reference number.
There is a deadline.
There is a fee estimate.
There is a hearing date.
There is a piece of correspondence waiting to be answered.
And somewhere underneath all of that administrative machinery is a human being whose life is actually being affected.
That person may not understand the law.
That person may not understand the procedure.
That person may not know what questions should be asked.
That person may have no idea that an important point has been overlooked.
They have therefore placed their trust in somebody who does understand those things.
That creates a responsibility.
It is not merely a commercial relationship.
There is an element of stewardship involved.
The client is trusting another human being to protect interests that the client may not be capable of protecting alone.
That responsibility should mean something.
When the Lawyer Becomes Another Gatekeeper
There is another problem.
If the institutions themselves have failed, the lawyer may be the last person standing between the individual and injustice.
The lawyer therefore has an unusual position.
He can challenge the institution.
He can demand disclosure.
He can examine the evidence.
He can identify errors.
He can make arguments that an ordinary citizen would struggle to formulate.
He can force the system to answer questions it would rather avoid.
But if the lawyer instead becomes another gatekeeper, then the individual is trapped.
The institution says:
"We followed the procedure."
The lawyer says:
"There is nothing more we can reasonably do."
And the individual is left wondering whether anybody actually examined the substance of what happened.
Greed and Responsibility
I have been accused, in effect, of being hostile towards lawyers when I criticise the way the legal profession operates.
Perhaps I am.
But there is a reason for it.
I have come to regard some of the behaviour I have encountered in the Jersey legal profession as extraordinarily driven by financial considerations.
I use the word greedy deliberately.
Not because every advocate is greedy.
Not because every lawyer places money above justice.
And not because lawyers are somehow uniquely corrupt human beings.
But because I have encountered circumstances in which the commercial interests of the lawyer appeared to matter more than the interests of the person the lawyer was supposed to represent.
That is a serious accusation.
It should therefore be taken seriously rather than dismissed merely because it is uncomfortable.
The appropriate response to criticism is not outrage.
It is examination.
Ask whether the criticism is true.
Ask whether the behaviour could have been better.
Ask whether the client received the level of attention that the circumstances actually required.
And if the answer is no, then change it.
Justice Is Not a Commodity
There is a fundamental problem when justice is treated entirely as a commodity.
The person with money can buy more attention.
The person with fewer resources gets less.
The wealthy client can justify extensive investigation.
The ordinary person is told that the economics do not make sense.
The result is a system in which the quality of justice can become dependent upon the ability to pay for it.
That is deeply troubling.
Justice may require resources.
Lawyers have to be paid.
Courts have costs.
Experts have costs.
Investigations have costs.
None of that is controversial.
The problem arises when cost ceases to be a practical constraint and becomes a justification for failing to do what justice actually requires.
There is a difference between saying:
"We cannot do this because the necessary resources genuinely do not exist."
and saying:
"We could do this, but we don't think it is worth our time."
Those are not the same thing.
The Lawyer's Opportunity
And yet I do not want this article to become simply an attack upon lawyers.
Because lawyers have an extraordinary opportunity to do good.
A good lawyer can protect a person from an institution that has become unreasonable.
A good lawyer can identify an injustice that everybody else has overlooked.
A good lawyer can force a public authority to justify its actions.
A good lawyer can take a complicated legal problem and make it understandable.
A good lawyer can give a frightened person the confidence to stand up to an institution far more powerful than themselves.
That is an important function.
It is one of the reasons why society needs lawyers in the first place.
But that function carries responsibility.
The lawyer cannot simply become another cog in the machine.
He cannot allow the convenience of the institution to become more important than the rights of the individual.
He cannot allow the economics of his practice to become the only measure of what is worth doing.
Who Is the Client?
Ultimately, the question is very simple.
Who is the lawyer serving?
Is it the billing system?
Is it the firm?
Is it the institution?
Is it the convenience of the court?
Or is it the client?
And beyond the client, is there not also a wider responsibility to justice itself?
I believe there is.
That does not mean that every case deserves unlimited expenditure.
It does not mean that every argument is a good argument.
It does not mean that every client is right.
It does mean that the lawyer should be willing to look honestly at the matter and determine what justice actually requires.
Sometimes justice will require saying to the client:
"You are wrong."
Sometimes it will require saying:
"There is no case here."
And sometimes it will require saying:
"This is wrong, and I am prepared to fight it."
The professional responsibility is not to tell the client whatever the client wants to hear.
It is to give the client an honest assessment and then, where there is a legitimate case worth pursuing, to pursue it properly.
Leave the Lawyers to Sort It Out
Perhaps this is why I have become so sceptical of the phrase:
"Leave the lawyers to sort it out."
Because eventually there has to be somebody who actually cares enough to sort it out.
Somebody has to read the documents.
Somebody has to examine the evidence.
Somebody has to identify the error.
Somebody has to construct the argument.
Somebody has to stand in court and say:
"This is not right."
And sometimes that work takes ten minutes.
Sometimes it takes two days.
Sometimes it takes much longer.
The question should not simply be how little work can be done while still producing an acceptable invoice.
The question should be:
What does justice require?
That is the question I wish the Jersey legal system would ask more often.
Because when lawyers stop asking it, the individual is left with nowhere else to turn.
And when that happens, the person who should have been protected by the law becomes merely another person being processed by it.
That is not justice.
It is administration.
And there is a very great difference between the two.
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