Failing is good – it means you are trying

This week, the Law Society of England and Wales announced the winner of its recent election of a Deputy Vice President. He is Richard Atkinson, a criminal defence solicitor. He will spend a year as DVP, then a year as VP, before becoming P in 2 years’ time. IP Draughts’ preferred candidate, Laura Uberoi, came second. Laura is a finance lawyer at Macfarlanes, and will surely succeed in a future election.

Yesterday, one of the other candidates, Paul Singh, was brave enough to discuss on LinkedIn that he had failed spectacularly, getting only two votes (one of which was him voting for himself). Meanwhile, on Twitter, Mindy Chen Wishart, Dean of the Oxford Law Faculty, asked readers how they coped with a “deep disappointment”.

These publications prompted IP Draughts to think about the times he had significantly failed or succeeded in academic or career-related milestones. The tally so far is:

Failed

Aged 13, 19, 24, 32, 58, 62

Succeeded

Aged 18, 27, 36, 53, 57, 61

Some of the failures have led to deep disappointment, particularly at the start of IP Draughts’ career. Some have turned out for the best. Willingness to fail, and resilience following failure, are, in IP Draughts’ view, important ingredients of success.

Of course, one has to be realistic, and not waste time in applications that are very unlikely to succeed. For example, IP Draughts is unlikely to apply to become a Supreme Court Justice. But if your skills and experience are broadly in line with what you think the interviewers are looking for, it is worth applying. If you don’t try, you won’t succeed.

Richard III at Stratford

Yesterday, IP Draughts enjoyed a production of Richard III, performed by the Royal Shakespeare Company at Stratford.

Shakespeare’s history plays can be hard work for the audience. The murderous squabbles of the ruling classes in medieval England don’t engage the emotions in the way that his tragedies do. In the latter case, the central themes are visceral: jealousy, grief, coming manhood, failing pride, vaulting ambition. The great tragedy plays – Hamlet, Lear, Macbeth and Othello – have strong plots, but ultimately they are vehicles for exploring emotions and ideas.

The histories don’t lack such themes, but we see them through a prism of power struggles: against the French, against the nobles, against the King, against pretenders to the throne. Monarchs are murdered, or murder others. Queens grieve, or plot. Heirs chafe against authority. It can be a bit dull, slow-paced, and difficult to follow, at least when compared with Game of Thrones.

There were no protected characteristics in Shakespeare’s time. He has no problem with creating entertainment from themes that might shock a modern audience, such as anti-semitism (as in the Merchant of Venice) or physical deformity, as in Richard III.

In this production, Arthur Hughes plays Richard. Hughes needs no padded costume to convey the idea of deformity, because he has a disability in real life – one arm is shorter and the hand turned inward. Seeing this deformity, a modern audience might incline to sympathy, subverting Shakespeare’s intention. But Shakespeare’s words (and Hughes’ acting) are powerful enough to reveal a different truth to the one the author intended: just because you are disabled doesn’t mean you deserve sympathy: it is a person’s character that counts.

If the play is hard work, the production does everything it can to sweeten the pill. The actors speak their lines with sufficient emphasis, rhythm and clarity to do justice to Shakespeare’s style. This makes the 16th century English much easier to understand. Too often, even in RSC productions at Stratford, actors speak in a kind of naturalistic mumble that badly misses the point.

Hughes and many of the other actors are excellent, and the production and direction are masterly, though perhaps the director should have been more ruthless at cutting sections of the play that drag, particularly in the first half. The final half-hour makes up for this, engages the audience and sends them away on a high.

Convince me that you’re competent

You know that feeling in your stomach, when you see something coming that you are sure will be a disaster? IP Draughts had that feeling this morning, when he read the Legal Services Board’s latest “statutory statement of policy on ongoing competence“.

The LSB is the super-regulator of lawyers in England and Wales. It oversees the regulators for each of the six or so branches of the legal profession, which in the case of solicitors is the SRA. The document linked above is directed to the regulators. It tells them what it expects them to do, in the field of ensuring the ongoing competence of lawyers.

To quote from the LSB’s press release that accompanied the statement:

LSB consumer research conducted during the project shows a gap between what the public expects regarding lawyers’ competence and the current checks in place: 

• 95% of people believe lawyers should have to demonstrate they remain competent throughout their careers. 
• When informed about current arrangements, almost nine in ten people (87%) think legal services regulators should do more to reduce the risk of a lack of competence undermining public trust in the legal system. 

Several aspects of this statement are troubling:

1. Is there a competency problem that is undermining public trust in the legal system, or is this just a vox pop, with members of the public responding to an opinion poll survey? How many of the people consulted use legal services regularly? Would the same answer have been given if the people consulted were told that “doing more” would increase the cost of legal services? This classic extract from Yes, Minister sums up the general problem.
2. There is an air of “our survey indicates that the public expects us to do something, so we will satisfy that expectation, and show ourself to be good, by passing the expectation down the line”.
3. More fundamentally, what about the many lawyers who do not regularly advise members of the public? What justification is there for imposing new obligations on them?

The LSB is careful to qualify their policy by saying it should be applied in a way that is “suitable for the regulated community”. But that doesn’t give any reassurance that a regulator can take the view that the policy is completely unsuited to their “community”.

Another sentence from the press release reinforces IP Draughts’ sense of dismay:

Our work in this area concluded that no one can currently say, with any degree of confidence, how often competence issues arise among regulated lawyers. Addressing this gap will not just promote the interests of the public and consumers, it should also be in the interests of the profession and the fair and effective administration of justice. 

If no one can say how often competence is a problem, perhaps it is never a problem, in which case further action would be ridiculous.

As for “it should also be in the interests of the profession”, let us decide that, thank you.

So, what are they proposing that is different to how things are done currently? The bit that stood out for IP Draughts in the policy was the following phrase:

…regulators should consider a range of measures, such as …

c. Specifying training, learning and development requirements (including
mandatory requirements).
d. Competence assessments, for example, observation or examinations.
e. Reaccreditation models (i.e. requiring periodic proof of competence to
maintain a practising certificate).

In other words, the SRA may have to:

i. reverse its decision to abolish specific CPD requirements (e.g. minimum number of hours)

ii. introduce monitoring of work (cf classroom monitoring of teachers), or

iii. introduce ongoing tests of competence and reaccreditation throughout a lawyer’s career.

The involvement of the SRA in a solicitor’s work is already intrusive, and far more than when IP Draughts qualified. Depending on how these policies are adopted, they could significantly increase the burden on solicitors, all because members of the public, when asked, thought it would be a good idea.

Some of these ideas are encountered in other professions. IP Draughts knows a nurse who has to provide a record of training and reflective activities each time she is reaccredited, every 3 years. Putting together and submitting a file for this exercise seems a waste of everyone’s time, but ticks a bureacratic box.

Oh dear. IP Draughts will try to cheer himself up by reading the Wagatha Christie judgment.

Sanctions regimes and R&D collaborations

The dust has barely settled on the compliance regimes for personal information – the EU GDPR and its UK equivalent – which have been very intrusive for the university sector since they were introduced five years ago. Now there is a new set of complex rules that universities need to worry about – international sanctions. This week, the UK government banned the University of Manchester from licensing vision-sensing technology to a Chinese company, under powers it gave itself in the National Security and Investment Act 2021.

The legal regime for sanctions is a mixture of the old and the new. There have been laws about exporting goods that have military applications for many decades. In IP Draughts’ first real job, as an in-house lawyer, he was responsible for making applications to the UK government for export licences for “dual use” technologies – e.g. software related to the design of ships, which could be used for both civilian and military ships.

More recently, there has been a proliferation of laws. Some are focused on criminal activity (the terrorism and money-laundering regimes), some concern technology and infrastructure (e.g. the Act mentioned above which is concerned with 17 areas of sensitive technology), and others focus on individuals and political regimes (e.g. the sanctions regimes for Russia and its oligarchs). All of these areas of law potentially raise time-consuming compliance issues for universities and technology-based companies.

So far, this article has mentioned only UK laws, some of which it inherited from the EU at the time of Brexit. This week, IP Draughts reviewed a draft funding agreement between a US-based charitable foundation and a UK university. The terms of the agreement required the university to comply with US laws, including “U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) Compliance”. The research to be done under the agreement is likely to involve collaboration with institutions and individuals in developing countries

How is a university supposed to comply with domestic and overseas laws in this field? IP Draughts is aware of at least one university that employs a full-time compliance manager. But will any such manager (if your institution has one) learn about proposed collaborations and licence agreements in sufficient time to ensure that the law is not broken? And how cautious will be the institution be about compliance, e.g. in the area of voluntary notification to the UK government under section 18 of the National Security and Investment Act?

These are areas for senior management to grapple with, and seek legal advice where appropriate. They may well result in disappointment for individual academics who are used to taking their own decisions on who to collaborate with, and where to seek funding for their research.