Jake's View

Money's talking when lawyers oppose ancient law

The law of champerty, like other old-fashioned legal system rules, threatens lawyers' incomes, which is why they are adamantly against it

PUBLISHED : Thursday, 24 April, 2014, 1:11am
UPDATED : Thursday, 24 April, 2014, 1:11am

Lawyer Gary Yeong Yun-hong, 44, was convicted of 25 charges and Ip Hon-ming, 60, of 26 charges of champerty - an old piece of common law that prohibits parties with no direct interest in a legal action from encouraging and supporting litigation in return for a share of the proceeds from successful lawsuits or settlements.

SCMP, April 23

That word, champerty, looks distinctly as though it entered the English language with the Norman Conquest, which makes me kinder to lawyers than they are to themselves.

I only say that they still live in the 17th century. They themselves hark back to the 11th.

Just what, however, makes champerty so horribly evil that we must consider it not just a minor offence, a rap-over-the-knuckles transgression, a don't-do-it-again lapse, but an outright crime?

In answer, the judge in the case said it poses a general risk to the judicial system (What risk, milud?) and the prosecutor said these two people were not entitled to the money they took (Why not?). Others speak of ambulance chasing, which we certainly cannot have.

Goodness me, where would we be if hundreds of clamouring solicitors seeking to put the judicial system at risk by soliciting clients for non-entitled money were to jump out behind every ambulance that ever moves? Illegal parking on Glenealy couldn't slow traffic half as much. Can't have champerty. That's flat.

All nonsense, of course, and I mean all. There is only one reason that lawyers (particularly older established ones) are so adamantly opposed to champerty. It is that they think champerty threatens their incomes. The Amalgamated Brotherhood of Associated Legal Workers is just like any other union.

Now, I'm fine with that. I don't wish to threaten anyone's income. In fact, I'm the one who is all in favour of trade unions. I think it's hardly fair to prohibit people from pooling their labour to form unions when we encourage them to pool their money to form companies.

But there comes a time when the practices of some unions unnecessarily obstruct the wheels of commerce and undermine social relations, when they cause important community services to become inefficient, cumbersome, tardy and overly costly. This is where I think we are at the moment with the ABALW.

It is not just in the practice of criminalising income participation - contingency fee as it is called in up-to-date judicial systems. We also still prohibit people from unifying their lawsuits through class actions and we keep fee structures opaque by stopping lawyers from advertising.

These are the sorts of things craft unions did in the 17th century. The others have all moved with the times but the ABALW is still stuck there, even in costume. The courtroom chapter of the union, for instance, still requires the wearing of black lab coats and silly white horsehair hats.

Just imagine how much we could bring ready access to justice within affordable reach of the entire population by permitting contingency fees and class action lawsuits.

If cheated by Crook Investment Advisors Ltd, you would easily find the lawyer acting for others whom it has similarly cheated. Sign up for the percentage of the overall compensation he wants for his work and you are far better off than relying on regulatory agencies who are years late to see what is happening on the market and then just sling mud at each other.

Oh no, quite out of the question, says the ABALW. We will have the courts tied up in hundreds of thousands of nuisance lawsuits of no merit.

Think about it for a moment and you realise that this could only happen if lawyers willingly, and for no fee, take on cases that that they know cannot win and for which they may have to pay costs to defendants out of their own pockets when they lose. The scare story doesn't wash.

But you can be sure they wouldn't argue it if they thought efficient justice would help them ring the till louder. It's just money talking when the ABALW speaks against reform, just as it is with any other union.

I understand this. It's a natural interest for anyone to advance. As I say, I could easily be a union man.

But I wouldn't try to justify it with righteous cant about champerty.