The Neidle and the damage done

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Guest post by Richard Moorhead, professor of law and professional ethics at Exeter University

Moorhead: The Bar is shrill or hectoring when criticised

Dan Neidle has caused quite a stir by naming and shaming a tax KC for advice on a fraudulent tax scheme. As I have often thought about when to name individuals associated with ethics problems, sometimes doing so, sometimes not, I thought I would add my two pennyworth.

I think it is sometimes perfectly proper to name (whether one is shaming or not) and essential to the professions’ long-term health, but also that the decision to do so is a hard one which can cause real damage.

And I am going to illustrate the latter point with an example, of very recent vintage, where I got that decision wrong and take the opportunity to apologise for that. So a mea culpa is coming along with an apology to Sir Anthony Hooper.

But first back to Dan. I am not suggesting he has got anything wrong. I do not know, of course, but am confident he has done his homework, and that his points are well made, properly weighed, and so on. There is a very strong likelihood he is right.

And on that basis, I support his decision to name. There is a very genuine public interest in this. There is a specific and important individual example.

It makes a broader point, which for me is really crucial, that the Bar Standards Board have been aware of these problems for years. The professions also need to listen to and debate these stories: naming makes that much more likely.

I noticed a backwash on this after Neidle’s lecture where he first outed said KC. No one seemed that interested in what Dan was saying about tax advice, and all anyone (the lawyers, at any rate) was talking about was whether it was appropriate for him to name a name. I think the temptation is to blame Dan’s approach for that, but that is a mistake.

I have often had cause to think for myself about this kind of backwash. It is the drawback of naming a name. It switches off some who one would want to be allies. And it is difficult enough to get people to pay attention to what can sometimes be quite nuanced questions of what lawyers should do.

Those spurned allies, especially if they are already disinclined to agree, typically set about shooting the messenger and straw-manning (often but not always) the arguments.

The Bar, in particular, is shrill or hectoring when criticised (sometimes recent stories suggest they descend into far worse). What they think passes for good points (and they usually make good points along the way) comes across as hectoring or, sometimes, beside the point.

Psychologically they do not want (understandably) the focus to be on the actual problem, particularly where they have nothing to say of any substance to the central allegations. Picking little holes in a jumper does not mean there is not a jumper.

A related problem is that those who are named often cannot, for reasons of confidentiality and professional privilege, respond. This is an important point. Privilege is a burden as well as a privilege and it can be abused to evade responsibility (there is a brilliant example in the Post Office case but let me leave that for now).

Those who criticise lawyers, like me, must be wary of going too far; there is always going to be another side of the story. Criticisms can be made but must be made fairly. Dan though looks to me to have gone to great lengths to be fair.

Now readers will have noted that I often (usually) name names when discussing cases. I do so generally for two reasons.

One is that reader interest often depends on it, but it can prompt the adverse reaction Dan’s post has received, and I do think about that (I thought about it a lot when I wrote about David Neuberger; not least, but not only, because I really do genuinely admire and like him and knew many lawyers would simply dismiss as a result the idea that this was an issue worth considering).

More often, though, I am influenced by the nature of the case I am looking at: sometimes naming a name marks the seriousness of the issue. Or, as in the Neuberger example, the person’s identity is central. Although typically, it is just that, given the nature of the allegations and the evidence supporting them, I think they should be named.

This partly reflects the heart of what I typically do. Usually, I write about published documents (cases or sometimes reports) which I edit and analyse. If the comments in the parent document (the judge’s remarks) seem strong enough (analytically and/or in tenor), I include the person’s name. Sometimes it is simply a matter of making the story easier to tell and read. And usually, I do name.

I am conscious, though, of the impact of this.

When I give a talk on ‘ethics’ to lawyers, I have a little spiel about the power of the word. If someone mentions me and ethics in the same sentence, then it has a primal, physical response. I literally start to buzz. It’s adrenaline: the fight or flight response (this is what drives some of the Twitter excess too, I’d say).

Even some rather modest question (‘Doesn’t your survey consent form raise research ethics questions, Richard?’) can prompt this rather visceral reaction. I remind myself each time to let the surge pass. Lawyers feel the same, I have noticed, when other lawyers are criticised; and reach for some familiar reasons for closing their minds to concerns.

That I experience such a strong reaction to even a modest query underlines the importance that, when it comes to matters of professional integrity or, in the case I am about to apologise for, criticising judgement, one should be very careful.

Moreover, I am very aware of the problems of confirmation bias, moral licensing, and that the facts as they are now, may not be how they will look soon. And I am very aware of how bad simply having a question raised can feel.

Anyone who doubts it can watch [Post Office general counsel] Ben Foat give evidence to the inquiry on Post Office disclosure failures this week: whatever the rights and wrongs, he is feeling the moment at a highly personal and human level.

There may be cause for the needle, but for the individuals involved there is damage done.

So let me turn to my own example more explicitly.

In comments I have made recently about Sir Anthony Hooper, in essence I said he was very likely appointed to give the Post Office complaint and mediation scheme gravitas and the Post Office may have exploited his status to make a poor scheme look like a good one. The critical implication was he might not have been wise to get involved.

Trouble is, I was wrong.

It was drawn to my attention yesterday (and armed with this knowledge I have been able to dig deeper) that his appointment to the mediation scheme was not by the Post Office but was initiated by Justice for Subpostmasters Alliance with MPs. I understand it was agreed by the Post Office, which provided secretarial services to the interim mediation working committee.

It follows that his appointment was not to give the scheme gravitas but to try and ensure that the postmasters who entered into the scheme had a fair hearing. To emphasise the point, you can get some sense of the good work he did by listening to this clip from Nick Wallis’s BBC Sounds podcast.

Questions remain for the Post Office, of course, about the mediation scheme, but those questions do not, I think, relate to Sir Anthony becoming involved.

Although no one has asked me to, I want to and do sincerely apologise to him and to everyone who reads what I say for getting this wrong and to thank all those with whom I have communicated to help me clear up my error.