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Lord Chancellor wants more top City lawyers to become judges

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But they’ll likely need to take a pay cut

The Lord Chancellor, David Gauke, has told the House of Lords’ Constitution Committee that he wants to see more high-flying City lawyers join the judiciary.

Gauke, who began his career as a trainee solicitor with Reed Smith and then joined Macfarlanes before moving into politics, told the committee that more needed to be done to encourage City lawyers to don judicial robes.

“I look at my own background as a solicitor in the City and see a lot of people who I think would be very good judges, but it probably never even occurred to them that they could or should do that,” Gauke said. Suggesting some lawyers may be interested in making the career switch but need to be “encouraged along”, he continued:

“One of the things that we are doing is funding pre-application judicial education so that we can get a more diverse range of people from different backgrounds coming forward to join the judiciary.”

The Ministry of Justice (MoJ) is providing £152,000 over the next three years to help fund a new judicial education programme. The initiative is headed up by the Judicial Diversity Forum, and will target solicitors as they are underrepresented on the bench.

The 2018 Firms Most List

Gauke — who has been the MP for South West Hertfordshire since 2005 — appears to have already tapped up his former City contacts for advice. He continued:

“I am already having conversations with representatives and senior partners of some of the leading City firms at an informal level to get their views as to what more we could do and what more they could do.”

The Lord Chancellor may have his work cut out persuading City lawyers to join the bench, given the difference in pay potential. Legal Cheek’s Firms Most List shows that an equity partner at a top City firm can earn high six-figure and even seven-figure sums of cash. By comparison, the best-paid judge in the country, the Lord Chief Justice, makes £252,079.

For judges not in the appeal courts, a salary of about £100,000 to £150,000 is more likely. In the corporate law world, this money is similar to what a newly qualified lawyer at the London office of a top US firm would earn.

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37 Comments

TGF

Excellent Idea!!

(4)(1)

Anonymous

Honestly, what’s the appeal? You have to take a pay-cut, enter into one of the snootiest segments of the legal sector and there’s little scope for the judiciary alone to change the UK’s failing soft-touch justice system

(7)(10)

Anonymous

You become a Lord which is pretty sick – amerite : )

(3)(0)

Anonymous

A lot of thumbs down from BPTC’ers who were sold a dream clearly

(3)(1)

Anonymous

The way of life? A much less demanding job in comparison to that of working in a city law firm or at the bar, guaranteed holidays and all the other benefits that come along with it

(2)(0)

££££££££££££££££££££££

Alternative title: Lord Chancellor wants more top City lawyers to become broke mutha fuckas.

(6)(4)

TGF

Anything that helps diversity just for diversity’s sake is OK by me. It doesnt need to be rational.

Pile it high and sell it cheap

(8)(2)

Rowdy Merkin QC

What is an M and A specialist going to know about Crime or PI? Nothing. You may as well appoint a Director of Marks and Spencers as a Judge. I know, let’s diversify our Brain Surgeons by getting the guy in from Orthopaedics to do the operations. Or an even better example, let us get a career politician who only worked as a solicitor for 8 years and appoint him as Lord Chancellor!! Oh…errr…hang on….

(28)(8)

Kracka QCs

At what point did the article state that the judges would be required to work with crime/PI?

(15)(2)

Finance Lawyer

By the same token, what is a criminal QC going to know about whether the termination option in a multi-billion pound notional swap confirmation was validly exercised or not?

And yet currently, it’s mostly stuffy old fogies from chambers who’ve never been anywhere near high finance who are being asked to adjudicate on these systemically important civil matters.

Making an expert finance or M&A lawyer a judge is an absolutely sensible proposition, and your moronic comparison to making some CEO a judge is barely even worthy of acknowledgment. Cretin.

(24)(6)

Rowdy Merkin QC

I think you will find that criminal practitioners tend to steer away from the civil courts and it is the reverse scenario which is more common.

I suggest you look up the origins of the word cretin as it is not a very nice insult to use.

(6)(0)

Finance Lawyer

I think you will find that I never said anything about what criminal practitioners are or aren’t partial to.

The topic here is whether judges should be recruited solely from chambers (and, in a small number of cases, academia) or whether some should be recruited from City practice. To favour the latter proposition is wholly reasonable, and doesn’t come close to thinking that retailers should also be judges, or that the entry requirements for becoming a surgeon ought to be widened.

When I use the word cretin, I’m rarely trying to be nice. Here, it felt apt.

(7)(5)

Rowdy Merkin QC

I never said they should just be recruited from chambers. There are plenty of excellent judges who are solicitors. The issue is what experience they have of the litigation process.

You suggested Criminal QC’s were sitting as judges on complex commercial disputes. I was merely questioning that.

(5)(0)

Anonymous

Ok, well I equally question the suggestion that it has never happened. I’m not going to trawl the case reports to find an example, but given the make-up of the judiciary I find your suggestion that judges with a crime background are not asked to sit as judges in complex civil matters quite incredible.

Anyway, the thing I really take issue with is this statement, which you made in relation to the hypothetical appointment of an M&A specialist as a judge: “[you] may as well appoint a Director of Marks and Spencers as a Judge. I know, let’s diversify our Brain Surgeons by getting the guy in from Orthopaedics to do the operations.”

This statement indicates that you are devoid of reason.

(0)(5)

Anonymous

“I find your suggestion that judges with a crime background are not asked to sit as judges in complex civil matters quite incredible.” It is not incredible: it is true. Only those practitioners from the commercial or chancery Bar get released on complex commercial (including financial) disputes. This has been policy for years. A former criminal barrister might try other complex civil disputes, such as high value personal injury, actions against the police and judicial review, but never a case of the sort you have highlighted.

(4)(0)

Rowdy Merkin QC

Thank you

Anonymous

Ok, so all you’re really arguing is that finance / corporate solicitors who become judges shouldn’t sit in crime / PI cases?

Fine. But the fundamental point is they could still sit in a huge range of other cases.

Again: your statement regarding making a retailer a judge, or making some unqualified doctor a surgeon, was utterly moronic.

Anonymous

Correct. Criminal QCs sit either in the Crown Court, trying serious crime, or in the non-Commercial Court part of the QBD, dealing with general common law matters.

(5)(0)

The Bar Necessities

At the lower levels (DJ/CJ), judges are ‘ticketed’ for different types of work. All DJs get their general civil ticket, but there are specific tickets for cases involving children, insolvency, some kind of generic ‘chancery’ ticket (apparently, although that might be more of a Central London County Court thing), Court of Protection, and god knows what else. I think at CJ level it is a bit more specific as one gets a general ticket for Crime, Civil or Family, although I understand there are sub-groups within each for specialist work. As one goes up the CJ ladder, most experienced Civil and Family CJs get their Deputy HCJ ticket and then will sit in specialist lists relating to their area of expertise.

At HCJ level, there is a lot of formal and informal division of work. For example, the Chancery Division used to maintain a specific Competition list which one judge was in charge of, and also has the Patents court. Likewise, QBD maintained a media/defamation list (which, at various times, has been separate from the jury list, which I think now is mainly actions against the police), and I think it now has a specialist Planning list to split that off that from the Admin Court. Immigration is now, of course, devolved to the UT. There are nominated judges of the Admiralty Court, the TCC, the Commercial Court, the Patents Court, the Elections Court and the Admin Court.

Even at Court of Appeal level, there is a mix of specialists and generalists. There is informal identification of areas of expertise, with the aim that any constitution will have someone one it that has expertise in the relevant area of law.

The problem with this proposal is that solicitors who specialised in non-litigious work aren’t necessarily going to be much good in court. Managing a trial requires experience of how trials should proceed, and I’m sceptical that anyone without experience can easily pick this up. Frankly, there are relatively few areas of law that a good lawyer, assisted by good counsel, can’t get their head around with adequate preparation time.

(5)(1)

Anonymous

You barristers (or more likely BPTC students) are so far up your own inadequate arses it’s unreal.

City Partners are eminently more capable than your average barrister (given half such people spend all their time in some equivalent of Manchester crown court or wherever).

Magic Circle Partners would be quite able to manage a court process – brushing up on process is even easier than the fantastically easy (as you seem to think) task of learning new areas of law.

The Bar Necessities

It is rather telling that you see this as a dick measuring competition between the bar and solicitors, or between litigation and transactions.

The truth is that most good lawyers, if they had chosen a different track, could have ended up doing something different. Most good barristers in most disciplines could have gone down the City route, although they may not have been as well-suited to the work. Most City solicitors could have found a place at the Bar had they wanted to work in that environment. Similarly, most litigators are capable of doing transactional work—and vice versa.

Neither, however, would do a particularly good job on jumping head first into the other. If someone has never been in a trail, how do they know how to manage that process? If someone has never attempted to structure a deal, how would they know where to start? It is not about better or worse, but a recognising that experience is important.

If I’m entirely blunt, people who argue to the contrary are usually very insecure. They attempt to get validation by claiming that their specialism—and by extension, they—are ‘the best’, but they say that because they don’t necessarily believe it. Those are exactly the kind of people that should not be anywhere near the bench.

Anonymous

More to the point, what does an M and A lawyer know about the law? Or indeed any transactional “lawyer”?

(7)(2)

Anonymous

Plenty, and in their areas of expertise, far far more than you.

Does that help? It’s pretty obvious so maybe try harder next time.

(4)(5)

Anonymous

They actually know very little or nothing about the law. They just cobble together boilerplate deals.

(14)(2)

Anonymous

You’re a fucking idiot with no experience of the industry.

(0)(1)

Anonymous

True. In my firm, the corporate teams refer to the litigation department as “the law department”.

(2)(0)

Anonymous

How much criminal work were Sumption and Hale doing before they were bumped?

(0)(0)

Rowdy Merkin QC

Well spotted Kracka old bean, takes me back to those wise Kracks you used to come up with in Higher Latin lessons at prep school. My point still stands. Unless they are an experienced litigator, how can they be expected to suddenly take a judicial appointment and thus preside over a litigated case of any description, without previous experience of the litigation process?

Admittedly some academics have had appointments to the appellate bench but they have skills which can be utilised in that field.

(3)(2)

Anonymous

On the other hand, much nicer hours, public pension… But then you’d have to see your family on an evening. I prefer just getting the weekly digest pinned to the fridge.

(1)(0)

Anonymous

If finance is a key barrier, then maybe more should be done to promote the part-time judicial roles that are available. Clearly I’m not suggesting that a partner from the magic circle sits as a deputy DJ.

But if you could complete a judicial role for a set number of days a week/month/year, without forfeiting the Magic Circle salary then surely that could work.

I think the logistics would need to be considered further, conflicts managed etc, however it seems a sensible solution.

(2)(0)

Garth

This is a fundamentally misguided idea. The overwhelming majority of City solicitors haven’t looked at a judgment in decades and have probably forgotten whatever formal law they once knew.

If you’re an asset management, capital markets, M&A, restructuring, arbitration, governance, compliance, or due diligence expert you simply don’t deal with the ‘law’ as judges or barristers understand it. On the rare occasion where such input is necessary, that’s where corporate barristers earn their bread.

There are, of course, exceptions. Lord Collins springs to mind. But he was a partner and solicitor-advocate in HSF’s litigation department, and as used to dealing with judgments and judges as a barrister. Such qualified solicitors should be welcomed and encouraged to apply for the Bench. But they are very much in the minority.

(14)(3)

Anonymous

You must not have practised in any of the areas you mention. Corporate and finance solicitors need to know “black letter” law, and that does sometimes extend to reading case law or looking through statutes.

Whether it is the rules on the passing of title to shares in a share-sale transaction or the formality requirements for the perfection of security under a facility, corporate / finance lawyers need to know their shit. The more senior you are, the more tempting it is to throw research questions to someone more junior (in the majority of circumstances not a barrister), but even then, you end up reading the note you get back and engaging with it / advising the client on your conclusions.

Yes, maybe we engage with the primary sources a little less than a barrister, but it’s simply not true to say that we *never* read judgments or statutes.

(7)(8)

Legal Recruiter

Don’t see anything wrong with this, although it’s hard to see how they would hook many in. It’s a big pay cut, and a change from being a high status person in the firm to being (at least at first) a newbie in a position where many of your colleagues would question your competence based on some of the views pointed out above. I doubt the imaginary lure of “making a difference” will appeal to many of them as I assume they never cared much about that anyway.

(4)(0)

Oppidan

Your average unqualified ISDA negotiator probably knows more section 2(a)(iii) than a criminal silk but thats not really the point is it?

(0)(1)

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

(3)(1)

Anonymous

I see some mileage in this idea – the judiciary as it is currently really needs to be improved and diversified. Training in some areas will likely be needed though, as other commenters have said, although this is doable, and sound judgement is a skill in its own right – not every good lawyer makes a good judge.

The main challenge as I see it is to ensure that conflicts of interests are managed and any bias in decisions picked up – I suspect some solicitors from City firms will be reluctant to rule against banks and other large financial institutions which are former clients.

(1)(2)

Anonymous

The appeal to answer someone’s earlier question is a knighthood and an epic pension after 8 years. Then you can “retire” and crack on with knocking things off the bucket list

(2)(0)

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