The Post Office scandal highlights the dangers of lawyers absorbing and reflecting back their client’s view “without sufficient independence and critical detachment”, academics have argued.
Regulators also need to consider how to ensure that lawyers conducting ‘independent’ reviews for clients truly operate independently.
This one highlights a range of concerns with a review the Post Office commissioned from Brian Altman KC in 2013. This considered an earlier review of private prosecutions following discovery that the evidence was tainted. Mr Altman found no reason to stop the prosecution work.
Reflecting on the lessons more broadly, the paper argued that, in dealing with an organisation that “could not grasp the possibility that Horizon and its prosecution process were flawed”, lawyers “absorbed and reflected back their client’s view” without “sufficient independence and critical detachment”.
It explained: “The [Altman] review demonstrated a tendency to treat with cynicism the appellants and to disregard entirely the human costs of the Post Office’s conduct.
“This blindness to the humanity of others is sometimes reified in practice (and the Bar’s Code of Conduct) as fearless advocacy. The review stands as a monument to that approach, showing how the decision-making of the lawyers can be limited or corrupted by excessive zeal.”
The authors said “cognitive co-dependency is a real issue for lawyers”; lawyers were vulnerable to “a range of psychological and social biases: they can’t help seeing the world to some extent through their client’s eyes and powerful social, psychological, and economic forces encourage them towards optimistic construal of those situations”.
Not least, they explained, lawyers “want to help the person in a predicament on the other side of their desk”.
Such an error could be compounded when lawyers get “overly used to, or proud of, the power of their own intellect and skill enabling them to manage ‘difficult’ cases to excellent conclusions”.
The fact that the issues identified in the scandal stretched across many private practice and in-house lawyers “suggest a wider, deeper problem”.
One way into this was to look at how lawyers sold their services, the paper said, citing quotes used by legal directories on Mr Altman and Lord Grabiner KC, who played a controversial role in advising the Post Office at one point.
Mr Altman was described as “unstoppable”. The quote went on: “Like a steam roller, once he’s set his course, he won’t deviate from his path and will crush anything that gets in the way.”
Lord Grabiner’s quote said: “He is off the scale in terms of his ability to deal with difficult and serious matters… He can hold the board of a very large company in the palm of his hand… He’ll turn a pile of refuse into something that looks great; it’s an absolute art form.”
The paper said: “These quotes tell us something about culture in legal services in moments of crisis for their clients. Grabiner is sold as a Midas with the Brown Stuff, and Altman is the Steam Roller who crushes anything that gets in his way.
“That such culture could influence their judgement and behaviour in theory is obvious; the question for the inquiry will be has it in this case.”
The paper concluded by arguing that independent reviews, or reviews presented as independent, engaged obligations of candour to the clients; obligations not to mislead or be complicit in misleading anyone, including key constituencies within the client; and obligations of independence.
“Regulators need to consider practical ways of emphasising the priority of independence when conducting reviews for clients commissioned to be, or to be held out as, independent.”