Monkey business

One of the things I am most enjoying in what is laughingly called semi-retirement is the distance it allows me from what was once all-consuming. I am no longer a lawyer, and have nothing to prove: I have been there, done that and worn the t-shirt for far too long. Instead, I feel I have much to achieve still, and the energy to do it – and I no longer have to climb the hierarchy. The struggle up the greasy pole is a thing of the past.

I have been reading Dario Maestripieri’s article The Origins of Power in the RSA’s Summer Journal. I liked the section in which he considers the different social strategies of male rhesus macaques. He describes the problems for ‘challenger immigrants’ – “young, strong and impulsive, and [with] no patience for waiting in a queue”, who are not always successful, and then goes on,

In larger groups, despotic alpha males have built a system of alliances to protect their status and privileges. When ambitious males join one of these groups, their best bet is ‘challenger resident’ strategy. Challenger residents do not immediately confront the alpha male. Instead, they start out as low ranking and concentrate on building alliances with other males. Only after they have identified the strengths and weaknesses of the alpha male, become familiar with social dynamics within the group and established political alliances with other males do they launch an attack on the alpha male. Given their knowledge and strategic ability, challenger residents are often successful in defeating the alpha male and taking his place at the top.

Sound familiar? Simply substitute lawyer for macaque.

Rushed justice?

Nick Herbert may think (reported in The Guardian this morning) that “Justice delayed is justice denied” but it is never as easy as all that.

As his fellow Conservative MP, James Clappison said last August (again from The Guardian):

There has to be firm, deterrent sentencing but rushed justice will be bad justice particularly when you’re trying to sort the professional repeat offenders and organisations from the weak followers.”

Referring to the report of the leaked document, he said: “The situation is tough for the police, but we can’t have short cuts to justice. In every case we have to have normal high standards of justice for determining guilt and innocence and the right sentence.

Says it all.

What do bankers tell their parents?

Back in January 2010 I wrote in A Moral Profession about a post by Stefan Stern, passing the parent test, in which he referred to the remark by Stephen Hester, chief executive of Royal Bank of Scotland, to the Treasury Select Committee: “If you asked my mother and father about my pay they would say it is too high.” Stern went on (and this is what caught my eye),

We should always be ready to explain to close family members what it is we do at work, and why. The FT columnist John Kay prefers this sort of practical morality to any sort of imposed code of behaviour. If you would be embarrassed telling friends or family about aspects your job, the chances are you should not be doing it, he has said.

This came to mind yesterday for two reasons: first the furore over Jimmy Carr’s tax avoidance; and secondly because of the remarks by Mr Justice Peter Smith in relation to the discontinuance of disqualification proceedings brought against the directors of the Farepak group. The judge’s full statement is here.

Mr Justice Peter Smith was pretty damning about the way the case was brought – and there will be more when the costs application is heard. At paragraph 76:

The result was that by the close of the Secretary of State’s evidence all of the main players who have been called in effect did not support the Secretary of State’s contention that the defendants had done anything wrong.

But he reserved his most withering remarks for the way that HBOS had behaved in the period prior to the Farepak group’s insolvency. Paragraph 116 is particularly damning:

The bank had, as I have said, almost a pride in their strong attitude, but they went beyond that of course because they in effect forced the directors to carry on in September/October collecting deposits, that at a time when they believed there would be an insolvent solution; they had missed it in August, but they expected it to happen later. During that period, as I have said, their exposure was reduced by £4 million, of deposits that came in in that period, and £6 million was used to carry on trading the companies, which were then sold in the pre-pack.

And in paragraph 117:

HBOS knew that those deposits would be paid and would be lost if their expected solution went out and that the only beneficiary of those deposits would be HBOS and secured a maximum return for HBOS.

And then in paragraph 122 :

This is not a court of morality, but I would suggest that HBOS really ought to look at the collections that they took in September and October and seriously consider whether or not they ought to make a further substantial payment to the compensation fund. It seems to me that what happened there, whilst apparently legally acceptable, might not be regarded in the public’s eyes as being acceptable. I cannot force them, it is entirely a matter for them.

HBOS is not happy with the statement and has said that the bank and its staff “acted entirely appropriately” and that the bank

made entirely reasonable decisions based on the information available to it at the time. . . The bank will of course consider the judge’s comments but does not agree that it acted inappropriately, as the judge has suggested.

Well (the Mandy Rice-Davies defence), they would say that, wouldn’t they.

I wonder how they are explaining things at home.

Leaving the Locker Room

This will be my last Lawslot Redux post as a practising lawyer.

In less than a week I change roles, leaving the world of corporate transactions – a world I have known for some 36 years – to focus on client relationships and client development. I will still keep my practicing certificate (and I have been assured that I will remain insured) so technically I will still be a lawyer – but without transactions it will not be the same.

Not surprisingly this change has led me to reflect on my career – far too much reflection, according to my children, who believe they should have a monopoly on introspection. But don’t worry, I am not going to go there in this post. But what has struck me is that notwithstanding how the legal profession has changed in my professional lifetime – and is still changing – the same cannot be said for the actual day job. This has changed very little in 36 years. There is no doubt that that the means of doing is different: back in the day we had no email, no fax, no PCs. Everything was typed (and then copy typed), drafts travelled (marked, and occasionally butchered, in precise colour order, with riders stapled, or stuck on with Sellotape), calls were landline, and you still dialled a number. Even if there wasn’t, there seemed a great deal more time.

But transactions, and our role in them as lawyers, have remained pretty well unchanged: same documents, same issues, same arguments (just a different generation of lawyer doing the arguing), same tensions . . . and same excitement. Each transaction the same in its essentials, each different in its particulars.

And it is the excitement that has kept me working – this is what I know that I will miss, but, as my last post, the time comes for us all.

In the landing flight path

A week into the New Year and it has been relatively quiet in the office. Clients seem to be taking stock, and projects and opportunities we discussed in the closing weeks of 2011 remain to be taken forward. It may the calm before the storm, but it has allowed time for some gentle housekeeping, and in particular sorting through and sorting out those old newspaper cuttings and articles I have squirrelled away.

These days it is much easier to store and retrieve on-line content (although given the number of apps I have used over the past few years – Instapaper, Evernote, Delicious and FT Clippings – the challenge is remembering which one: or did I just tweet the link?). But in my pre-digital life I was an avid clipper of anything that caught my eye, and the deeper recesses of my desk drawers are home to bundles of cuttings, yellow edged, and for the most part well past their sell by date.

But not all. As with any housekeeping, part of the pleasure is in finding things you had lost, or reminding yourself of things that you had forgotten. Given that this is the year in which I will change roles and leave the world of corporate transactional work, it was instructive to re-read one of Luke Johnson’s FT Columns, Learn to tame the ravening beast, ambition – and in particular his final paragraph,

Is there a moral in all this? I suppose it is that we must each know our limit, and resist the urge to overreach. Ambition is a ravening beast that must be kept in check, because even if we do not all formally retire, one day every one of us has to surrender. Better to go with dignity and grace than have the booty snatched from our enfeebled grip because we cling on too long.

Well, it has not quite come to this. Yet.