,
17 tweets,
4 min read
Read on Twitter
Lots of lawyers, including some thoughtful lawyers, are uncomfortable, some even angry, about a thread I tweeted this morning from the @GoodLawProject account. So let me put my case. THREAD.
I start by saying I think it is beyond sensible doubt that judges, like all of us, carry biases to the jobs they do. I find that I am able to say that - and also to say publicly that judges (here is one of several possible examples) have probably been right to find against me. /1 
This is an argument for study of the issue. And for discussion of the issue. And also for judicial diversity. It is my belief that the rule of law is weakened rather than strengthened if we treat certain issues as not suitable for public discussion. /2
For what it is worth, I have written previously about what responsible challenge to the judiciary looks like – and saying: ”it is right that the [judicial] establishment is held vigorously to account.” You can read that piece here waitingfortax.com/2016/11/12/how… /3
Public law lawyers often have these conversations – about what they perceive to be the biases of judges and whether x is ‘a good draw’ – with their clients. This also happens, albeit less frequently, in the sphere (which raises somewhat analogous public policy issues) of tax. /4
Is it ok for us as lawyers to discuss this with our clients but not ok to say it in public? Is it healthy these perceptions circulate in the closed shop of the law but not in wider public discourse? Are only those who use lawyers to be entrusted with what we lawyers believe? /5
What about the contention I should not have made the points I did in the context of a particular case. I have said in sworn evidence - I can give examples - to the court that I see my role as being a proxy for those who fund the litigation. /6
This role sounds (eg) in the approach I take to transparency – I seek to publish everything I can (consistent only with maintaining professional privilege). (In reality this intention is sometimes blunted, but only by my own inefficiency). /7
Assume a hypothetical future public law case for which I crowdfund. And the case is listed. If an individual funder was the client and asked ‘is x a good draw’ they might typically receive an answer from the legal team of yes/no/neutral/don't know. /8
If, in that hypothetical case, I have that information how do I balance keeping it from those who contribute to crowdfunding with my role (as I perceive it to be) as their proxy? /9
Let me pick up a few last points. Some have compared my observations to the Mail’s attack on Judge Etherton as an “openly gay ex-Olympic fencer” and the courts as “enemies of the people”. That criticism is facile and unworthy of any thoughtful and well-intentioned critic. /10
My observations are, as I have said, the sort of thing public law lawyers (and I have no doubt others) say to clients all the time. They are fair observations with analytic value. They are profoundly different in tone and intention from the Mail's. /11
Moreover, they are not intended to stir public hatred or undermine the rule of law. They are not remotely comparable to the Mail's. I am surprised some of my critics seem to find this difficult. /12
Another criticism is that my comments are unlikely to help the litigation. That reveals more about how the critic sees the role of public discourse than about my actions. But, in any event, I am the claimant, accountable to crowdfunders, and these decisions are mine. /13
I would also add that I have publicly and repeatedly (here is one example) called for a regulatory regime and ethical guidance around crowdfunding but there isn’t any. So I do my best to find my way balancing the duties I perceive myself to owe /14
Moreover, I have said, when I have been attacked by political opponents, that I welcome regulatory oversight and I have invited people to write to the regulator if they consider my conduct to fall below a high standard. I repeat that invitation today. /15
Finally, I am a Queen’s Counsel and so it is right I be held to a high standard. I take – and took - responsibility for those tweets. That is why, when I tweeted them I attached my name to them.
However, I won’t always get it right. To few of us is given that privilege. /ENDS
However, I won’t always get it right. To few of us is given that privilege. /ENDS
