Compassionate leadership - a thing of the future?

“I refuse to believe that you cannot be both compassionate and strong” – Jacinda Ardern

The Prime Minister of New Zealand has drawn praise from across the world for her openness and leadership through the difficulties of the last few weeks. From her voluntary pay cut, to assuring the children of her country that the Easter Bunny was a key worker she has stood in stark contrast to some other world leaders.

The current crisis and resulting lockdown have possibly given us the opportunity to reflect on where true leadership is found, including in relation to the management of law firms – or any other business for that matter. Most of us have been brought up in the belief that a business leader must be strong. But does that need to be at the expense of compassion?

Let’s look at performance issues. How do we bring the best out of our team? How do we deal with someone who does not seem to be at their best, who is not meeting their targets? There may be times when a firm word is needed. There may be others when a different approach works best. I have a confession! I react to praise or criticism – always have. So, if I post something that has lots of positive comments, I will be motivated to do more. If I am met with criticism or even worse: silence, I feel like giving up. In football terms, I’m a confidence player. To be honest we are all like that, to some degree. So, someone who is not working at their best might need a bit of encouragement, a positive word, a reminder of good things they have done. Or there might be other issues – worry, tiredness, family difficulties. It is not acceptable to say that they should leave their problems at home, as if the problem is somehow separate from the person. If someone is weak then why not help to make them stronger rather that expect them to ‘man up’ whatever that means.

The same goes for openness – one my recurring themes. Time and time again I have written about the need to encourage staff and colleagues to talk to someone if they have made a mistake or things are getting out of hand. Compassionate managers know how they feel.  They have been there. They know that nobody is perfect. The fact that they have messed up does not invalidate all the good things that they have done and will do. A person who knows that they are a valuable part of the team, is less likely to lock themself in a room and concoct some catastrophic cover up. The ones who do that are the ones who already feel isolated. A culture based on empathy looks for a solution, not for someone to blame.

Does this sound like bleeding heart liberalism? Are we becoming snowflakes? In fact, it is the opposite. The world in which we live, and work can be tough. It is even tougher just now and might get worse in the future. What we need are strong teams headed by strong leaders. But as the wise leader of New Zealand says, compassion is a strength not a weakness.

Keep safe.

In which losing a briefcase turns out far worse than a headbutt!

Two recent disciplinary cases against lawyers have produced very contrasting outcomes.

Firstly, there is, yet again, the tragedy of a career in tatters because of desperate attempts at a cover up. The background to this case is, to be honest, the stuff of everyone’s nightmare. Claire Matthews did not miss a deadline; she did not get the law wrong; she fell asleep on a train. Unfortunately, this caused her to leave behind a locked brief case that contained highly sensitive documents. Her client was the SRA.

She did not report the incident to her employers, Capsticks, for a week in the hope that she could retrieve the lost briefcase. She lied to a colleague that she had left it at her new flat and that she would return it. In a later email she said that she had left it on a train that morning when in fact this had happened the previous week. Anyone who has followed these stories will know that this was all going to end badly.

There was evidence before the SDT that she was in a very bad state following the incident. She told the tribunal that she had “drank alcohol to excess in order block out the event. At her lowest point, the Respondent said that she had resorted to drinking bleach in an attempt to end her life.”  She said that she acted in panic and that there was no deliberate attempt to mislead.

The tribunal found that –

“The damage to the reputation of the profession by the Respondent’s misconduct was significant as the public would trust a solicitor not to conceal the loss of data by telling untruths to their colleagues and their employer. The Respondent’s conduct was a significant departure from the complete integrity, probity and trustworthiness expected of a solicitor.”

https://www.solicitorstribunal.org.uk/sites/default/files-sdt/12005.2019.Matthews.pdf

She was struck off and ordered to pay £10k costs.

This does seem a harsh outcome. But is stark reminder again of the need to be completely open if you make a mistake. To leave a bag on a train is forgivable. It can happen to us all. To then mislead your employers takes the incident to another level. To confess is painful. To lose your career is a tragedy. The SDT have again made it clear that honesty and integrity are paramount.

It is interesting that the second case, involving a member of the bar, has a very different outcome. It was a very different case. The report in Legal Futures opens with the unforgettable words –

“A senior barrister who headbutted a junior female member of chambers during a drunken row, leaving her on the ground with blood all over her face, has been suspended for three months by a Bar disciplinary tribunal.”

https://www.legalfutures.co.uk/latest-news/barrister-suspended-for-headbutting-female-colleague

It seems that both barristers were drunk.

The Bar Disciplinary Tribunal, in suspending him said that a “signal needed to be sent” that such conduct was not acceptable. I should say, in passing, that Everton FC player Duncan Ferguson spent 4 months in HMP Barlinnie for headbutting an opponent when playing for Glasgow Rangers!

This is nothing to do with the case of Ms Matthews. But you could understand members of the public wondering why a young solicitor does more damage to the reputation of the profession by panicking after losing a briefcase, than a senior barrister who headbutts a woman colleague in the street.

Just saying.

Supreme Court allows damages for commercial surrogacy in the USA

Clinical Negligence lawyers have been awaiting the judgment in Whittington v XX that was delivered by the Supreme Court yesterday –

https://www.bailii.org/uk/cases/UKSC/2020/14.html

This has been a long running case which raised a number of issues in relation to quantum, causation and provisional damages. The most controversial arguments have surrounded the claimant’s right to damages for the cost of surrogacy.

Breach of duty was not controversial. There was a failure to diagnose cervical cancer. The Claimant required extensive surgery and chemotherapy. She suffered a total loss of fertility. She had no children. She had a strong wish to start a family. The claimant’s intention was to enter into a surrogacy arrangement in California. Such arrangements are unlawful in the UK. She also wished to use donor eggs.

In 2002 the Court of Appeal had dismissed a similar claim in the case of Briody v St Helens and Knowsley Area Health Authority (2002) QB 856. The key reason was that commercial surrogacy was unlawful. 

In XXX, Sir Robert Nelson found that he was bound by Briody and refused that head of claim. The use of donor eggs was also refused as this was not restorative of her loss i.e. fertility. The Court of Appeal allowed her claim on both counts. She was doing nothing wrong by entering into an arrangement that was perfectly lawful in the place where the surrogacy would take place. McCombe LJ said - 

‘In my judgment, therefore, the law no longer requires a bar to the recovery of damages claimed by Mrs X on policy grounds’ and

‘The distinction between ‘own egg surrogacy’ and ‘donor egg surrogacy’, employing the partner’s sperm would be entirely artificial. Having regard to the development of social attitudes, I feel able (with the greatest respect to Hale LJ’s views of 17 years ago) not to follow the dicta in Briody on this point.’

And so to the Supreme Court.

They have found in favour of the Claimant by a 3 – 2 majority. Lady Hale gave the majority judgment. She noted that the Supreme Court was not bound by Briody. Its persuasiveness was mitigated by ‘subsequent developments in the law and social attitudes relating to surrogacy’.

On the question of donor eggs, Lady Hale rejected her own observations in Briody that this was not restorative of the claimant’s loss. ‘In my view it was probably wrong then and is certainly wrong now.’ 

This view was influenced by a different understanding of the ‘family’ -  

“ This view is reinforced by the dramatic changes in the idea of what constitutes a family which have taken place in recent decades, referred to earlier. There are many different kinds of family these days. As King LJ pointed out in the Court of Appeal, “psychologically and emotionally the baby who is born is just as much ‘their’ child as if one of them had carried and given birth to him or her” (para 103). This is the experience of those judges who have the happy experience of granting parental orders. I would therefore hold that, subject to reasonable prospects of success, damages can be claimed for the reasonable costs of UK surrogacy using donor eggs.” (48).

On the question of the California surrogacy, the claimant was not planning anything illegal.

“For all those reasons, I conclude that it is no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.” (53).

Lady Hale pointed out that the entitlement was not unlimited. Firstly the arrangement had to have reasonable prospects of success. In addition – “This is unlikely to be reasonable unless the foreign country has a well-established system in which the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded".

The dissenting judgment of Lord Carnwath, with which Lord Reed agreed, was limited to the surrogacy point. He said that it was his view that the Court of Appeal took the correct view in Briody and that view remains correct today.

This has been an area of uncertainty for many years. Not for the first time in recent years, we have seen judicial thinking moving in line with shifts in society and in scientific developments.

Forty years and I can still count!

It was on this day – April Fools’ Day 1980 – that I officially joined the roll of Solicitors. Lord Denning autographed my admission certificate and the 40-year roller coaster began. 

The Jam topped the charts with Going Underground!

I was planning to put on drinks and curled up sandwiches to mark the occasion, but a certain virus put paid to that. So my little speech will have be to be virtual…

My first position was a very short-lived sojourn with a small Liverpool firm who I won’t identify! I was taken on to develop their litigation work – everything from PI to divorce to Crime. This is what we did in those days.

I still have nightmares about my first appearance in the Magistrates Court. My boss asked me to do a committal hearing, with about an hour’s notice. I knew nothing at all about crime. I phoned a friend. He asked if it was a paper or oral committal. I stared wide eyed at the file which didn’t help. My friend said it was probably a paper exercise and I should just say that we agreed. So, there I was sitting amongst some legendary criminal advocates including Mr Makin, Mr Rooney, Mr Livermore and other celebrities. Eventually, it was my time to walk to the guillotine. I stood before the bench and the watching audience of greatness. I read from my copious notes – ‘We consent’. I began to sit. The clerk clearly expected more. ‘What about witnesses?’. I came out with a line that has haunted me to this day – ‘Yes we have got some’.  The clerk spared me further pain and said – ‘Witnesses to be conditionally bound’.  I could the feel the raised eyebrows of the watching hordes. Did I imagine the thumbs down sign, or other more embarrassing gestures in my direction?

This was moment that I decided a career in the law was not for me. I met an equally new barrister outside court and poured my heart out. He smiled and said that I would joke about it one day! Ha!!

I swiftly moved to the Vauxhall Law Centre which changed my life. I have written before about my early days in Scotland Road –

https://thestevecornforthblog.blogspot.com/2020/02/still-ranting-after-all-these-years.html

While we are talking about roller coasters, I did once lose a client in court. This was in fact the subject of one of my earliest blogs back in 2012 so I won’t repeat it here, other than to say that my philosophy since that day has been – ‘Never assume that a client in curt has the first idea what is going on..’

https://thestevecornforthblog.blogspot.com/2012/04/mysterious-case-of-lost-client.html

Since then, it has all been plain sailing!!

Thank you to all of you who I have known since that first day. 

And to others that I have met along the way. Who would ever have thought that 40 years in the law could produce so much laughter and so much pain…