The Standing Committee on the Unlicensed Practice of Law
By facsimile to 00 1 850 561 5665
Ladies and gentlemen,
Public Hearing, 23 April 1999
If it please the learned members of the committee, I would ask that this representation be placed before them for consideration.
I am a chartered engineer of the United Kingdom, with a practice in international and domestic arbitration, a former chairman of the Chartered Institute of Arbitrators and currently President of the Society of Construction Arbitrators, as well as being a member of the Swiss Arbitration Association and visiting lecturer in the philosophy and ethics of commercial dispute resolution at the University of Glamorgan. I do not profess law in any jurisdiction. I have, however, had the honour of appointment as a Special Referee, a surrogate judge for actions having particular content, in the High Court of the Isle of Man.
If my bona fides are required, then an approach could be made to [names of some distinguished Lawyers in Canada were given]. I do not assert that those gentlemen share my views, only that they may vouch for my identity and credentials.
I understand the learned committee to have two questions under consideration:
Necessarily, I will address matters of principle and of policy. I do so with respect, and, of course, any view I express is subject i) to any express, mandatory and overriding provisions of the local law ii) to the mandatory provisions of the Rules governing the two bodies in question.
As a respectful outside observer with an interest in the arbitral process, I will suggest to you that the proper answer to both questions is "no", and I will seek to explain my reasons, for your consideration and criticism.
Arbitration, in my submission, is not a proceeding in a state court, nor are arbitrators themselves surrogates for a state court. Arbitration is a private process, whose nature and outcome are recognised by states. I use the term "states" here to embrace both nation states and the constituents of a federal nation state. Why parties should choose to determine differences between themselves, using a third person or persons of their own choice is perhaps a matter for a larger debate. The fact is that arbitration has long been a process adopted by merchant communities and others, both domestically within states and nation states, and internationally, for resolving disputes between persons, whether legal or natural.
Recognition of arbitration is important in trade, not least because of the ease with which agreements to arbitrate may be honoured, and foreign awards may be enforced, following the New York Convention on the Recognition and Enforcement of Foreign Awards, with which the learned members are no doubt familiar, and to which the United States is a signatory. The underlying support for the arbitral process seen in the Federal Arbitration Act 1925 is recognised and cited world-wide.
I would bring to the attention of the learned committee the wording of the Arbitration Act 1996, which regulates, in England and Wales, the precise issue before the committee. Section 36 of that act reads "Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by a lawyer or other person chosen by him." I emphasise the last words for convenience. I am able to say that the English legislation was principally to consolidate existing law and that this provision repeats what was thought in England to be the common law; the previous legislation (the Arbitration Acts 1950, 1975 and 1979) were silent, but there had been a long tradition in certain trades of first-instance arbitration from which lawyers were excluded by agreement (not a custom that I am advocating in my submission).
The Departmental Advisory Committee of the Department of Trade, initially under Lord Mustill, then Lord Steyn and finally Lord Saville, said, of this provision, (at 185) "It seems to us that this reflects a basic right, though of course the parties are free to dispense with it if they wish". That was a statement of the law. It may be of interest that they considered the implications of the provision thus (at 186) "It has been suggested that this Clause (the document was a Bill, with clauses and not yet an Act with sections) provides an opportunity of extending by statute the privilege enjoyed by legal advisers (as to non-disclosure of documents - my explanation) to non-legal advisers and representatives. We have not adopted this suggestion . . . . . .". I would argue that to suggest that the possibility of lay representation was not included per incuriam, but was a considered and correct statement of the law as it was.
With the leave of the learned committee and in all proper humility, I ask that two conclusions be drawn from the English legislation. The first is that control of representation is contrary to the fundamental principle of party autonomy and contrary to the common law (which we have the privilege of sharing). The second is that it is clearly within the power of a legislature to make provisions relating to representation if it sees fit.
Bearing the latter point in mind, I turn to the appropriate Statute of the United States, the Federal Arbitration Act 1925. I believe that I am correct to say that the statute does not contain any express provision which would exclude representation by any person whom a party might choose. For that reason, I suggest that the FAA does not support a contention that representation should be restricted to local attorneys or at all.
It would be an impertinence on my part to seek to analyse the law of the State of Florida. As a practitioner of logic, however, I properly may surmise that, as the learned committee has chosen to entertain the present enquiry, it is more probable than not that no express restrictions are to be found in the Laws of the State of Florida. Indeed, one would expect that to be the case in a modern jurisdiction within the common law tradition. If that is right, then there is nothing, other than some false sense of analogy between private arrangements and the court, to support a contention that representation should be restricted to local attorneys or at all.
I trust the learned members of the committee will excuse me and accept my apologies if citations are not according to the learned committee's custom, I humbly request indulgence to a foreign friend of the committee. My understanding, however, is that the Florida Supreme Court has indeed addressed this topic in Miele v Prudential-Bache Securities Inc (1995) 656 So.2d 470, determining that a proceeding in arbitration was not an action in the legal sense. With great respect, as a practitioner and as a student of the philosophy of law, I find that entirely logical and I allow myself to wonder whether, upon mature reflection, the learned committee would find itself wishing to challenge such a clear judgement, particularly where to do so would be to run against principle (the principle of party autonomy in private proceedings) and the current trend world-wide.
Moreover, in the light of Miele, it seems at least arguable, to a layman, that the issue, of whether or not arbitration in Florida is to be treated as of the same nature as action in the Court, is res judicata. To reconsider it from the point of view set out in the questions before the learned committee might well be seen as adopting a device to evade the effect of the decision of the Honourable Supreme Court. My understanding of the role of the learned committee is that it to apply and advise upon the law as it exists and not to make or seek new law.
There is a further objection to the enquiry before the learned committee. It is a grave one. I hesitate to make the point, but I ask the distinguished members of the committee to allow that it is a view expressed by a friend to the legal profession at large, and one who has no professional interest, so far as I am aware, in the State of Florida.
The objection is this: Bar protection policies are very largely perceived as existing principally to protect the Bar and the income of its members. That is the public perception and I would submit that there is little in the practice of law to gainsay the public view. Public protection is the gracious veil sometimes drawn across the stern face of this truth, but the veil is at best thin and, as for the remainder of the clothing of the policy, the public see as did the boy in Hans Andersen's story of the Emperor's clothes. There can be no doubt, I suggest, that, however the control of representation in arbitration is clothed, it is essentially and principally a restriction in aid of the Bar itself.
The learned committee's role, on behalf of the Bar and delegated
from the Florida Supreme Court, is a judicial, or at the most extreme
a quasi-judicial role, to be approached with all the care and respect
for Justice and the public perception of it that such a role
requires. I do not doubt that to be the light in which the learned
members of the committee approach their difficult and honourable task
and I do not seek to interfere with the committee in any way; it
would be an impertinence to do so.
I understand the Florida Bar to be one of the leading State Bars, if not the leading State Bar, in the United States of America. In a modern commercial context, that must confer a special responsibility to the world at large. As a friend of the law and, I hope, as one who wishes the Florida Bar well, I would fail in my duty if I did not say that others might see the present enquiry as one in which the most fundamental rule of Natural Justice, nemo judex in causa sua, was at risk of being discarded for a blatantly commercial reason and by the very persons whom the public and the Florida Supreme Court have selected to uphold it. At a time when the commercial world has come to fear the imperial development of US interests, that would be an especially dismal message.
In other jurisdictions, it is now usual to permit representation of a party's choice. I was peripherally involved when the point was discussed in Bermuda, prior to their adoption of the UNCITRAL Model Arbitration Law. Far from seeking to limit access, the Bermuda Bar agreed to lobby the Government for an exception to be made, for foreign lawyers and other representatives, to the requirement for work permits, and that concession was made. The practical purpose of that policy was to encourage arbitration business. The Bermuda Bar accepted that such an approach would benefit its members by providing access to support business as well as to direct representation. I suggest that freedom of choice will not normally discourage parties, in most cases, from selecting local attorneys for the self evident advantage that brings. I understand that, following a notorious case in Singapore in the 1980's, where an injunction was issued preventing a US law firm from representing a client, the rule has now been changed, but the learned committee will no doubt wish to ascertain such matters for itself by direct enquiry.
The now notorious case of Birbrower, Montalbano, Condon and Frank v Superior Court (Esq. Business services Inc) 17 Cal. 4th 119, 70 Cal Rptr 2d 304) has excited interest overseas. America's friends abroad have difficulty in explaining why the Court appears to have lent its name to what is seen as a device for the dishonest avoidance of a legitimate payment. I am sure that it is wrong that the case should be seen as the result of unattractive greed and envy on the part of the local Bar, but that impression exists on this side of the Atlantic. "Another typical excess of American Lawyers." I suggest that is not an impression that Florida would wish to give to the world. Nor is it an example for other states and nations.
The writer, George Bernard Shaw, described professions, yours and mine, as conspiracies against the laity. It would be a matter of great regret if the authority of any Bar were to be seen as used to restrict the right of persons to have the representation of their choice, whether chosen capriciously or for practical reasons, such as knowledge of the relevant business, solely to preserve business for its members. In my respectful submission, that would be an abuse of power and might well lead to questions as to whether an organisation of the kind properly ought to use its power and association with the Court in such a way.
May I commend to you the words of a very great jurist, O. W. Holmes Jnr. He once said to an advocate in his Court "This is a court of Law young man, not a court of justice.". He is also reported to have described the practice of law as the prediction of what a court will decide in practice, no more and no less. In the United States of America, perhaps more than elsewhere, the realist tradition has established the nature of the practice of law as a practice of the Court. I suggest to the learned committee that it would be inappropriate to bring private proceedings in arbitration within the ambit of court practice for two reasons. One is that it would deny parties their right to adopt an autonomous process of their own creation, the other that the integrity of the Court itself would begin to suffer by the absence of legitimate alternatives.
Finally, and I greatly appreciate the patience of the learned members of the committee, I suggest that the risk to the income of the learned members of the Florida Bar is not so great as might be supposed. Although there are large law firms out-of-state, whom some corporations and individuals might wish to employ, the wise client, the world over, knows that the inside knowledge of the local attorney is invaluable. I have personal experience of acting as a specialist technical advocate in places where that is the practice, notably in Swiss Arbitration, and I can say that such an arrangement works best where the non-lawyer is within a conventional legal team. There is a trend, in some places, to create firms to specialise in claims and their conduct in arbitration, but there is no evidence of which I am aware that suggests clients have any special advantage from the use of such firms.
It seems to me best that a course should be adopted to encourage ADR business to the State of Florida and not to drive it away. On balance, therefore, I respectfully urge the learned committee to choose freedom rather than to restrict the development of ADR in Florida, certainly in the interest of justice, but also for the long term advantage of the Bar itself.
I have addressed the general principle, rather than the specific sets of Rules of the two bodies mentioned in the questions before the learned committee; that is because I do not consider myself qualified to speak upon those Rules, that is a matter for the bodies concerned and those who use them. A fortiori, I do not consider myself qualified to practise law in any jurisdiction; but I do claim the right of a free man to comment upon law in appropriate circumstances. I thank the learned members of the committee for their patience and attention and wish them well in their deliberations. If I may be of any further assistance, I place myself at the committee's disposal.