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An evening with Simon Davis: Covid-19 and the legal system

Simon Davis took up the role of President of the Law Society of England and Wales in July 2019. He studied Law at Oxford and qualified as a solicitor in 1984. We recently hosted the online event ‘An Evening with Simon Davis’ for our alumni which sold out. We talked to Simon after the event to ask how Covid-19 is impacting his daily work and the justice system as a whole.

When I was seven years old my parents made a decision which would shape my life forever. My father did not go to university and joined the army at 18. I was at a school in America and faced the prospect of moving home and school every two or three years as my father moved from army posting to posting. The constant interruptions would have been disruptive to my education, to put it mildly.

My parents therefore applied for a bursary from the UK Government to subsidise my attending school in England. It was this secure educational foundation which allowed me to do well at school and for which I will always be grateful to the UK taxpayer.

I studied English, French and History at A-level and was not particularly good at or passionate about any specialist subject. When considering my university choice I attended careers talks given by a series of suited elderly men talking about the numbers of air miles that they had accumulated. Luckily for me the last one I attended was given by a criminal law specialist solicitor from Wokingham. He was hilarious. With eyes dancing and hands waving he described a life which did not sound like work. I accept that it was not too difficult to entertain a group of schoolboys with tales about criminals but it was this man’s passion which led me to ask about studying law at university.

There were aspects of the law which I enjoyed very much at university, criminal (surprise surprise), tort, contract and some areas of company law. With hindsight, the subjects I most enjoyed had, at their heart, the resolution of problems involving people and personalities, not just statutes and regulations.

At the end of my second year the time came to decide whether I wished to pursue a career in the law. I met solicitors and barristers to find out what life would be like in either profession. Without exception they were friendly, positive and often very funny. I had taken part in a moot before Lord Edmund-Davies at university and liked the idea of standing up in court. Ultimately I decided that I liked the idea more of spending time with teams of people, rather than being what seemed to be more of a lone gun.

I wrote to a number of law firms and I attended a number of interviews but the most challenging was the one at a firm then called Clifford Turner. After a thorough cross examination I was asked at the end of the interview what I think even now is the best interview question I have ever heard - “I want you to imagine that you have joined the firm. You are contacted by two old friends from university. They are planning on setting up a restaurant. One of them is going to be in the kitchens and the other front of house. What kind of questions should they be asking each other as they embark on this journey together?” It had everything; business planning, market research, employment, health and safety, property finding and financing, borrowing, whether to be a partnership or a corporate and so on.

When I went back to university and was asked how the interview had gone. I said that I had received a number of offers and was going to accept one from a firm which was not in the top few at the time. The reaction was “You are either incredibly stupid or know something which no one else does.” In fact I was just lucky as the firm then merged with Coward Chance and the combination later became the major global law firm Clifford Chance.

I joined Clifford Chance in 1982 and was hopeless. The people were a delight. The problem was me. I was just no good at my chosen career. After two poor performances in corporate and property, one of those who hired me said “You can’t have turned into a complete numpty in the years since we hired you (I had been to law school in the meantime). Let’s try a new start. Go to Paris and use your French”. I quickly found that “Deux bieres, s’il vous plait” did not go very far and knew that I was doomed. But then a miracle happened. I was asked to liaise with our Hong Kong litigation team to represent a French company who it was alleged had infringed a trademark in Hong Kong. Luckily the in house team spoke good English.

I read a summary of the claim and likely responses and felt the same kind of emotion you do two or three pages into a wonderful book. Excitement, trepidation and the thrill of what was going to happen next. I found that I was a born litigator. By that I do not mean that my lacklustre performance in corporate and property was due to my lack of interest. No, it really was lack of ability.

I found that I have a singular talent for finding holes in contracts and flaws in others’ arguments. I was able to see patterns from large amounts of documents which others would miss. These abilities had a serious downside in that I had been unable to draft any kind of clause in a share purchase agreement or lease without immediately finding several ways to circumvent their intended purpose.

Nearly 40 years later I look back at a career which went from representing some members of Pink Floyd to the tennis player Richard Gasqet, from the liquidators of Banco Ambrosiano to Barclays Bank. I was also graduate recruitment partner for five years.

Having spent a whole career serving clients, I was very happy when offered the opportunity of standing for election as President of the Law Society of England and Wales, with the job of looking after a large client: 180,000 solicitors in England, Wales and overseas. A role which is the legal backbone of society, upholding the rule of law and acting in the public interest rather than their own. Their clients range from the most vulnerable in a mental health institution to the global business giant.

I had a range of priorities, which could be distilled into doing all I could to make sure that the profession was attractive and open to aspiring solicitors from all backgrounds. I wanted to ensure  they were looked after during their career in the profession, used modern technology and were supported as they in turn supported their clients in need, whether external or in-house. At the same time I wanted to do what I could to make justice affordable for those with limited financial means, and playing my part in avoiding Brexit impacting severely on the profession and their clients.

Since the outbreak my priorities have not changed. However, my most demanding focus has been on two themes; keeping the wheels of justice turning in the interests of the public and the rule of law, while protecting the physical and financial health of those whose shoulders are behind the wheel.

Before the Covid-19 pandemic my life as Law Society president involved people, people, people. I spent time with solicitors and firms, with bar leaders overseas and almost every evening of the week was taken up with panels, receptions, dinners and speeches. This has been replaced by every day in a bedroom/office moving from Skype to Zoom to Teams and back again. If I have to listen one more time to “Can anybody hear me?" or have to listen to any more bars of canned music I will devote my future life to tidying up cupboards.

On a more serious note, at the beginning of my presidency I was often heard to say that I did not want to hear “What does the Law Society do for me?” but instead “What would I do without the Law Society?” A glance at our website and the regular communications which go out from the Law Society will show that we have swung immediately behind the profession and the public. Our relationship managers and council members are out there on the ground spending time with solicitors and clients and feeding back ideas and challenges to the Law Society. We are in close touch with local law societies and our principal focus is now on helping firms get through this crisis and continue to serve their clients in need.

I have a call every day of the week with the Ministry of Justice, Courts and Tribunal Service and Legal Aid Agency. We also talk regularly with the Department for Business, Energy & Industrial Strategy (BEIS) and the Treasury. During all of these discussions we are feeding back what life is like in the world outside of Westminster. Our information is based on a huge number of calls, but also surveys which we have sent out to many thousands of solicitors.

No law firm will come out of this crisis unscathed. The large law firms are suspending profit shares to partners. They all hope that the previous good years will support them as work levels and revenues most likely plunge in some areas in the months ahead. The 2008 financial crisis saw many firms shed partners and employees. At the other end of the scale in size, those firms doing publicly funded work, and who were already struggling, will find it hard to survive without government support. Firms in between will be seeking to get through using a combination of conserved cash and government furlough schemes.

The furlough scheme will provide support for some firms, but offering interest free loans to small firms already struggling with debt is not an answer. Business rates relief is not available to solicitors and the many small firms who operate using professional service companies cannot benefit from the financial support package because they are paid with dividends.

There will obviously be different support needed by a sole practitioner in Wales from a global firm in Canary Wharf. But in each case the advice fundamentally needed is how to continue to provide a service to clients, how to keep levels of work up after the virus has receded and how to keep their people motivated and employed.

 My daily routine begins by waking to unfeasible loud birdsong.  I feed the cats, eat a healthy breakfast made by my wife, Jane, who has just recovered from almost four weeks with what we hope was the virus rather than a terrible case of the flu. I sit in bedroom/office emailing and video/audio conferencing. Go downstairs and NEVER ask “What’s for lunch?” I learned that lesson on Day 1. I have something to eat and the afternoon is the same as morning. I go for an early evening jog which turns into a walk, with a bubble over my head “Who are all these people? Don’t they know there is a lock down?” Time absolutely whizzes by. Tomorrow I am thinking, possibly, just maybe, of starting the day with a Joe Wicks workout.

Before the lockdown the challenge was how to conduct hearings effectively without placing the health of participants at risk. The answer was by having a combination of safety measures in place combined with remote hearings where possible. As it became clear that the risks to health were extremely difficult to overcome and after lockdown occurred, we moved to the position where all hearings should be conducted remotely unless absolutely necessary. In the case of jury trials the position has been that the challenge of 12 people being together for long periods has meant that there have been no trials at all. In other courts, ranging from magistrates through to the commercial court, hearings have been taking place primarily using Skype for Business but also Zoom. Cloud video platforms are being rolled out across magistrates courts. Generally practitioners, the judiciary and court staff are working together to try to keep cases going through the courts.

 A key plank of the rule of law is access to justice for all. The key challenge has therefore been keeping courts going with significant staff shortages, risks to health and technology filling gaps but often being quite slow compared to physical hearings, taking into account for example the need for clients to be giving confidential instructions during the case.

The collapse in work levels will not just be temporary. The legal profession will have to find ways of surviving during a possibly prolonged ‘recession’ in work levels. On the positive side a great deal is being learnt in a short period of time about the advantages and disadvantages of technology. Work which could sensibly have been done remotely before will no longer be done face to face. By contrast I know that many take the view that connecting by video is better than nothing but is a very poor and inadequate substitute for human connection and relationship building. Office life will be with us to stay and in some aspects more appreciated.

I would like to reassures students that it is always a good time to be entering the legal profession. Approach the future with optimism. The job of a lawyer is to keep people out of trouble. There are going to be a great many people and businesses in trouble in the years to come, who will need energetic and creative support. So come on in, the country needs you.

 

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