Taking the road less travelled

I believe that a modern & humane Bar should provide proper service to those it seeks to represent, embraces diversity, strives to provide have integrity even though at times we have to represent and fight for clients fearlessly.

Service

In 1976 Nicholas graduated in physics with first class honours from a top university. He had the world at his feet. He could land any job in industry and earn a fantastic living. He had many job offers, he was set for life. However, he decided to teach, and to teach English.

Given his qualifications he could have gone to teach in some of the best schools in the country but he chose a school that was recruiting dynamic young teachers in a poor part of south London.

The school population at the time was hitting 2000 pupils. There were on average 38 kids in each classroom. Some of the kids, despite being 13 or 14 years old, could barely read or write. The education policy at the time was against streaming. The classes were mixed-ability classes. Some of the kids were frustrated because the lessons were too difficult, others were bored because the lessons were too easy. Controlling the class was a challenge. Nick, being young and enthusiastic, did not give up.

He took a lot of abuse from some the students because of his appearance but he would laugh it off in good humour.

When he taught English he would bring the lessons alive and captivate the class. He told amazing stories with passion and wit. His pay was low, as he was a newly-qualified teacher, but he would work long hours and was always there for his students if they needed help with homework or with understanding concepts he introduced.

One of his students particularly struggled. He came from a family where books and learning were not a priority. There was no big library at home. But Nick saw promise. He helped this student.

At the age of 15 this student was preparing for his O’ levels. There were a million things happening in his life. And he wasn’t particularly motivated. Nick encouraged him nevertheless. But the student failed his exams.

Nick did not give up on his student. He encouraged him to retake his O’ levels and this time the student passed – just. The student then started his A’ levels and stayed on in the school. Nick was there by his side. They prepared for the exam but again there were distractions in the young lad’s life.

He had his first relationship break up at the age of 16 from the love of his life, went into a depression and by the time of his exams failed them. Nick was again there and helped the young man and encouraged him to try again. He re-took his exams and this time passed. He managed to get into university and decided to read law. In college he went from strength to strength.

By now his life had stabilised and when he eventually graduated in 1984 he came second in his year. The young man never forgot the kindness and the service this teacher gave him. It was service beyond the call of duty.

That young man stands before you today, those events happened 35 years ago.

Nicolas was my teacher.

I’m sure many of you had such a mentor or teacher in your life. This is not just someone doing a job but truly going that extra mile.

This is what service to others truly means: –

When you decided to come to the Bar, you had your reasons for choosing this great and rewarding profession. Now I don’t know what motivated you.

For some it would have been a desire to represent certain clients, for others it would have been the desire to do certain types of legal work.

Some would have chosen this career path for the independence it offers, others still because of status and maybe for some of you because it was expected of you and others made the choice that you went along with either willingly or less so.

Perhaps it was or is the career many in your family have done before and you were expected to continue a family tradition. And yes there are even those amongst us who decided to come to the Bar to make a ton of money.

For some you will be the first in your family to follow this career path. Just as we are all unique and different it is also a fact that the reasons for any of us doing this job are too numerous to be able to make assumptions or value judgments about.

But regardless of what that driver is for you to choose law, we all have a common purpose. A golden thread that unites us all.

We all provide service.

We serve others with the various unique gifts and talents we have in the study and practice of law.

In the story I told about Nick the service given was special and unique, it went beyond the call of duty.

How many of us think like that every time we open a set of papers or meet a new client?

When you remind yourself, you chose a profession where our main goal is to serve.

So what are you doing to serve the community and society that rewards you with so many of the riches one can ever hope for, from this calling that so many other people in our society can only envy?

Understand this, I do not judge any of you for whatever reason or reasons motivated you. That doesn’t matter. We are all different and we have different drivers which propel us along in life. But as I look out to you all today I want to pose a question to each and every one of you.

What will be my legacy? Is that a vain thing to think about? Should you be more humble than thinking about leaving a legacy? But thinking to yourself how you would like to be remembered is important.

I do not think it harms to ask “Will I be remembered for the service I provided?”

Ask yourself this, in 30 – 40 years’ time, when you have reached the pinnacle of your career, how do you want others to remember you?

How do you want your loved ones to remember you?

And when you look even further into the future, because I sincerely wish each and everyone here a long, happy and prosperous life, as you reach the end of your days what is the epitaph that others will write about you?

So here’s my challenge to you today.

Why not mould and fashion that legacy now?  Write your epitaph now.

You see no-one really wants to be remembered simply because they made a ton of money for themselves. As social beings we don’t want to be remembered as being mean-spirited or selfish.

There is so much more to life and life at the Bar than that. We have the power to do great things. Why do you think nearly every millionaire, or I should say billionaire, in the world today is making efforts to being remembered not simply because of the ton of money they made in their lifetime but for other reasons? Bill Gates, George Soros, Mark Zuckerberg and many others have set up foundations to do great things with the cash they made in life.

What’s this got to do with you?

Now I don’t care what law you are doing. I don’t care how you got here. I don’t care whether you struggled to get here from a poor background and suffered unspeakable hardships in your journey here, or from the age of three your pathway had already been carved out for you because you were lucky enough to be born into wealth.

We are all here today and we are all equal in that we are all members of the same profession, we are all learned in the law. We have earned that right, that respect, to be called counsel.

And with that right, with our skills, there is much we can do to improve and assist the lot of others.

How many of us genuinely take the time out of our busy practices with the transferable talents we have to help others, those with greater needs or less fortunate than ourselves?

And I’m not talking about doing the odd pro bono case, although that is a worthy cause and a good start.

Will you be so consumed by work that you never think of others?

Take time to visit the local state school in your area and offer to speak to the children there. Now I’m not just talking about great schools I’m talking about the schools that maybe struggling, the schools that maybe you were fortunate not to go to because they lacked resources, had oversized classes and children from impoverished backgrounds.

Perhaps such schools are alien to you. Maybe such a school is not in the area where you live. But that is even more of a reason to visit such a school.

Perhaps the kids there look nothing like you.

Live nothing like you.

Speak nothing like you.

Maybe they pray to different gods, eat different foods and are culturally strange.

But by offering your time, being prepared to serve them with your knowledge of this fine profession, by showing that you care, offering you time, perhaps organising an hour of your time to explain why you do what you do and how it fits into the grander scheme of things, you touch a younger life.

You may well trigger an interest in the law.

And who knows, a kid from a completely different walk of life might think to him/herself that what you do is so cool, so great, so interesting that they become inspired and you spark that interest that they want to follow in your footsteps.

And wouldn’t it be great if we all contributed to the introduction of new diverse talent into our noble profession? Wouldn’t it be wonderful you took that time?

Wouldn’t it be amazing if we all made that effort?

And I am talking about reaching out to young children who are our future, not just teenagers in Year 10, but the little ones. Year 7 is a good place to start. Because there is enough time for them to be inspired early enough to re-set their course to do what we do.

Anyone who has experience of young kids knows that they are curious and have heroes.

Why not be a hero in a wig?

But why limit our talents to the very young? I actually think our skill-set can be offered across the spectrum of society.

Grassroots organisations and charities which struggle to find good people on their boards and management committees.

Providing assistance to those who are elderly and perhaps what we know might be useful to them.

We are good with the spoken and written word. It’s what we do. Why not give a gift of our skills to benefit someone less fortunate who may need our help? And you know why you should. You’ll feel great. You’ll glow. It’s magical how those small generous gifts to others make what we do seem more meaningful.

We are in a thinking and creative profession, that is what we do.

So we should constantly be asking, “what can I do?”

We should not fall into the trap and think, “I can’t make a difference, so I will just do the day job, I will just earn my money. I am just here for me.”

Thinking about what we can all do to make a change reminds me of the quote,

“You just need to be a flea against injustice. Enough committed fleas biting strategically can make even the biggest dog uncomfortable…” Marian Edelman

Diversity 

A question I am often asked is “Have you suffered discrimination, or felt the effect of racism in this profession?’”

And it’s a really interesting question – but more interesting is who is asking the question and why. Why interesting? Because would that person ask that question if I was a white person who he’d just met? And when you stop and analyse the question and the questioner, it’s not an excuse to say, well, Leslie, he (or she) is just trying to get to know you and is just curious.

The questioner needs to think and ask themselves and answer truthfully, would you ask it of anybody at the Bar?

And, if the answer is no, why not, why would you limit that question to somebody who is a person of colour?

Granted, if asked that question you may well have a different answer if you were a white man or a woman.

I very much doubt that a room full of white men, on the management committees of certain chambers or law firms which are predominantly white, usually ask that question of themselves.

Maybe there could be questions such as, “do you think we discriminate in our recruitment?”  Or, “what more could we do to get our diversity numbers up?”

But here’s the thing, asking the question, “what can we do to improve the diversity situation in our organisation or profession?” is a loaded question.

It’s a loaded question because the precursor question must be, why?

Asking why is such a powerful question.  If you understand the ‘why’ that is the key, for potentially long-lasting and effective change.

So why should we want to change?

Why should we make our profession more diverse?

What is in it for me?

What is in it for us?

Now let’s think about this, if you are one of the over-represented groups in the profession you are in a position of privilege and power, like it or not, and there is an obvious natural tendency to think of increased diversity as a decrease in ‘us’.  Therefore what is the case for change?  It will need to be a very powerful one because it is a normal thing to want to keep things as they are. But regardless of where you come from, or on which side of the divide you fall, or what your current demographic representation is in our profession, diversity benefits us all.

You see, I believe if you understand this, you understand the heart of the problem in our profession.

So it is our job to understand and make the argument for change.

So what is the case for change?

One of the best articles and arguments I’ve seen for diversity comes from one of a series of articles from a New Zealand lawyer and mediator Paul Sills

He argues the following:-

  1. People have diverse aptitudes and skills, whether based on their cultural backgrounds or different fields of interest. It is beneficial to have individuals with various talents, whether in a group, company or social setting.
  2. Diversity encourages individuals to embrace some of the qualities of humanism, not necessarily as a religious or philosophical policy, but rather as a way of relating to others.
  3. By learning about and understanding the different traditions of a friend or work colleague we can become more sensitive to those traditions.
  4. “You cannot solve a problem from the same level of thinking that created it” (Einstein). Different backgrounds and cultures approach conflict in different ways. People with diverse backgrounds can provide insight on new approaches to address difficult moral or other dilemmas.
  5. Diversity educates us. We learn about the traditions of other “tribes” through formal education and life experience and, in doing so, find it more difficult to judge people from those tribes.
  6. Research shows that productivity flourishes in culturally diverse cities and that people are willing to pay to live and work in such fertile environments. The mind expands when encountering modes of thinking that differ from its own. Diversity provides innovation which in turn propels economic growth.
  7. The diversity that globalisation has brought into the world’s most cosmopolitan cities offers tangible benefits – for personal development, communities and the economy as a whole. For people who appreciate cultural diversity and want to live in tolerant, open societies, the vibrancy of major cities like London, New York and Melbourne is a major attraction. Diversity thus acts as a magnet for talent, which in turn further spurs economic growth.
  8. Diversity broadens the range of cultural experiences available in a city or country. The mingling of cultures through immigration leads to distinctive innovation. People are now interested in new holistic approaches to issues that blend Eastern and Western influences, spirituality and quantum physics, ancient wisdom and modern theories.

Sills concludes that:-

“People who have grown up in multicultural societies often find it not only normal but desirable to live with people of different backgrounds. Diversity is not merely tolerated, but something to be actively sought out.” https://www.lawsociety.org.nz/practice-resources/practice-areas/mediation/embracing-diversity .

Paul Sills is a lawyer is prepared to take a different road.  His arguments are powerful and persuasive.

We all have to embrace these arguments.

My biggest fear though is at times these arguments are not presented and argued in a convincing way.  This leads to push back or a reluctance. Sometimes you can see eyes just glazing over as if this is just politically-correct talk.  But it is so much more than this.  You see, we will only just tinker around the edges and never create real, lasting or substantial change unless we change our mindset.  We should not look at diversity as something just to be tolerated, as Sills says, it is to be embraced.

So let us all make the case for change and recognise that is also being able to convince others. It is a less travelled road, but one worth running down.

Leaving a legacy

“Two roads diverged in a wood, and I—

I took the one less traveled by,

And that has made all the difference” Robert Frost

This keynote address was delivered by Leslie Thomas QC (Joint Head of Garden Court Chambers) to the delegates at the Annual Bar and Young Bar Conference 2018. 

The Case for Justice

Justice for all.

Those three words are at the centre of the Bar Council’s logo, and they are at the centre of what the Bar Council tries to achieve. They are not a statement of reality. They are a challenge to those of us who try to represent this profession, they are an aspiration. But over the past years the gap between the aspiration and the reality has widened. Now more than ever, the importance of access to justice, of access to proper legal representation, of the need for corrections to the iniquities of our struggling system, must be re-emphasised. In short, the case for justice must be made once again.

I’d like to welcome the announcement that I’ve just heard from the Lord Chancellor. That is a positive first step, and the comments he has made about the future are encouraging. The case I make for justice is about that future – and the next steps along the way.

I make this case in defence of the public interest, rather than from a standpoint of any particular self-interest. In my day to day practice I am at the Commercial Bar, in an area of law that the Government is rather keen on. But not everyone can pick and choose where they wish to litigate or arbitrate. Most of you practise in areas where the law rudely intrudes into the lives of your clients, your witnesses, your affected parties, at a time and place of its choosing, and if you’re unlucky enough to find yourself in a court centre which is a couple of judges short, potentially it intrudes at several times and in several places in succession. As anyone who has read the Secret Barrister will know, in these areas, the case for justice must be remade.

Barristers from all across the Bar need to stand with our most junior practitioners at the publicly funded Bar as they try to find their feet, build their practices, and defend our most vital interests on little money and even less sleep.

And outside of the Inns and the Circuits, that view should not be a matter of partisan political persuasion either.

In the Legal Aid debates in the late 1940s the great legal statesmen of the age, Labour’s Sir Hartley Shawcross and the Conservative Sir David Maxwell Fyfe, were not divided in point of principle. Is that really surprising? Let’s put it in today’s terms. What could be more Conservative than support for a key aspect of the rule of law and proper access to justice, concepts which have been over 800 years in the making? If the justice system works properly, does it not help those who are just about managing, and if it works badly, does it not hinder them? And the same for Labour. Shouldn’t access to justice and proper legal representation be something that is for the many and not just the few? Does it not contribute to levelling the playing field between the disadvantaged and the privileged? Is it not a means by which the powerful can be held to account?

Now you’ve all heard the Attorney in fine voice this morning. I mean if the Bar Choral Society is ever short a baritone – well, they know who to call. But Mr Attorney we need you to lend your advocacy to the cause of the Justice System, both in Cabinet and during the 2019 Spending Review. As a practical point – and it is not necessarily widely known – the Attorney is currently seeking to dissolve the National Fund, a charity set up some hundred years ago to serve the national interest through the well-intentioned but ultimately futile aim of paying off the entirety of the UK’s National Debt. The Fund is about £450 million – a drop in the ocean for the Department of Work and Pensions, or the NHS, but an absolute lifeline for the Justice System. So when it’s paid back into central funds, make the case for the same amount to be released by the Treasury to the Ministry of Justice.

Put £100 million into the crumbling court estate, which, as the Lord Chief Justice has said this week, is desperately needed. Some of the places that people most enjoy working – think Google – have a real commitment to high quality workspaces, breakout areas and cafeterias, because they recognise the positive impact it has on wellbeing and productivity. Why should our Courts be any different? At a minimum, out of order bathrooms and leaking roofs must surely be considered unacceptable. Value the people, who day in and day out, provide an essential public service.

And on that question of value, commit the remainder of the funds towards increasing the pay of the publicly funded Bar. As I said at the start, what the Lord Chancellor has announced just now in relation to Criminal Defence funding and its targeting at the most junior is welcome. Nevertheless, I have heard the passionate, persuasive, articulate voices of our most junior criminal practitioners – and they all agree that that there is much more work to be done to ensure a sustainable, long term career for them. To know that this is not just a problem for the Bar, one only has to look at the Law Society’s quite frankly frightening heat map, showing the swiftly dwindling numbers and aging profile of our country’s Duty Solicitors – the vital first point of contact for independent legal advice if you are accused of committing a crime.

The question we have to ask ourselves is what we think that a justice system should provide, and the economic question is whether the money that is being spent generates value – which is not always measured in monetary terms. The social aspects of advice and intervention before it’s too late, the constitutional aspects of counterbalancing the power of the state, ensuring the right to a fair trial and maintaining continued confidence that the legal system works justice and not injustice, are not easily costed, but are of central importance to the fabric of our society.

But even with a narrow monetary focus, restoring funding to the types of areas affected by LASPO could deliver longer term savings. Small scale studies indicate that for every pound spend on legal aid, more than a pound is saved elsewhere, in terms of spend on social housing, health, local authorities and so on. The World Bank is currently running an initiative with the International Bar Association across a number of countries to look at these benefits and value the positive externalities in more detail. The Ministry of Justice should be leading on this kind of research – commissioning it, supporting it, demonstrating to the Treasury that when the longer term view is taken, it is a case of spending more money now to save public money later.

I do not suggest that there are any easy answers. There may be things that we as a profession can do better, or adapt for the modern age, which may ultimately reduce cost. But they cannot be done unthinkingly – disruption is all very well as an aim for a technology company, but it sits uneasily with a system of common law and constitutional tradition based on incremental development and change. We must not lose sight of the fact that efficiency and greater use of technology are not ends in themselves, but should be seen as ways of supporting and bolstering our most basic and cherished principles. The problems we face are too big and the issues at stake are too important for resolution by crisis-driven negotiations or short term budget cycles. After a further injection of funds for the short to medium term, one way to consider the long term solutions available would be a Royal Commission chaired by a senior retired judge, coupled with a commitment by the major parties to enact its recommendations.

There is now a small window of opportunity. We have a former Chief Secretary to the Treasury as Lord Chancellor and a former Lord Chancellor as Chief Secretary to the Treasury. We have a Legal Aid Minister who was a practising QC. If, like me, they want to see a future legal profession that promotes diversity, social mobility and talent, that retains people as they progress, and which does its level best to provide justice for all – and from what I’ve heard just now, I believe that they do want that – then they must make the case for better justice funding more vocally; now, through the Spending Review and beyond.

Because when it comes down to it, there is not simply a Conservative case for justice or a Labour case for justice. There is not simply an economic case for justice or a social case for justice. There is not simply a constitutional case for justice. There is a single compelling case for justice of which these are all but individual threads. It is a case which every single person in this room, every single person at the Bar, every single person on the Roll, and every single person in society at large needs to understand, and needs to be making. Lord Chancellor, Mr Attorney, Madam Shadow Attorney – join us, and make that case with us.

This address was delivered by Richard Hoyle aka @Barrickster (Chair of the Young Barristers’ Committee of the Bar Council of England and Wales) to the delegates at the Annual Bar and Young Bar Conference 2018.