Sunshine lawyering
Being a competition lawyer one cannot help but to be interested in the competitive dynamics of the very market in which we operate.
There are a few odd things to it, but I usually -although not on this blog- refer to one particular market failure in the market for EU competition law legal services: its lack of transparency (not price wise, but rather quality wise). My take on this (developed below) is that making certain legal submissions public would contribute to addressing this market failure. The report on accesibility of Court documents just issued by the European Parliament has given me an excuse not to comment on the Google commitments that I’ve been unable to read in full the push I needed to write about it.
It’s funny to observe that the cult of personality/firms prevalent in the EU competition world is, to a great extent, grounded on practically no available information. Firms and individuals are revered and ranked in various ways and tiers; they (we) are reviewed, reveive prices, etc, but, if you stop for a sec to think about it: how do you know that any of them/us is any good?
The maximum information that one can get about the quality of a firm’s or lawyer’s work merely relates to the cases in which a given firm/lawyers has worked. Interestingly, the outcome of those cases tends to matter little; what appears to matter is to have been involved in them. Many lawyers advertise the fact that they have acted on particular cases regardless of the result, and there’s no way of knowing whether they did excellent, good enough or poorly (at the extreme, I know a few cases of lawyers who show off for having represented clients in proceedings initiated as a result of poor legal advice in the first place). To be sure, although outcomes are, at times, a very good proxy, they are not a definitive criterion, for we often know little about the objectives pursued, about the details of a case, or about its a priori odds. Actually, telling whether an outcome is positive or not, as well as determining what a lawyer’s/economists’ contribution to this result was, is almost always unfeasible.
I’d argue that the only ones who can really have an informed idea about how good a firm or a lawyer is are the people working at the Commission and at the Courts who have shared cases with them/us; they are the sole ones who are able to measure their/our work against the background of all factors in play (when it comes to pleading, the Mlex guys who listen in at the hearings could have something to say too; I’ve said before that Lewis Crofts could make some extra money by publishing a litigators’ ranking..) but no one asks them (and even if they were asked, it’s arguable whether they should disclose favoritism in this regard either).
You could argue that in-house lawyers can be good comparative judges as well, but this is not always the case: in-house lawyers are often exposed to a very reduced subset of lawyers (sometimes retained due to political reasons outside their control). Moreover, many in-house lawyers may not be experts in the area for which they hire external lawyers (this is frequent in the competition world except when you deal with particularly large firms with specialized competition counsel), and very often the less risky thing to do is to pick people who others perceive as triple A, even if the reasons justifying the perception are ranking based unknown (the force of inertia and virtuous/vicious circles do the rest).
I’ve worked in various cases where I’ve seen well-known lawyers and firms produce documents that were not…worthy. I’ve also seen well regarded firms (sometimes even the sames as in my previous example) produce excellent work. And I’ve also seen work by less-known firms that was pretty good. The interesting thing is that in these cases the quality of the work tends to impact the result ot the case, but not the firm’s/lawyer’s reputation, for good or for bad, because no one can see and assess what was done.
In sum, to a great extent, law firms and economic consultancies are credence goods.
If you ask me, the only way to get rid of many of the absurdities derived from this market failure, and to improve the quality of legal services at the same time, would be to increase the transparency of legal submisions. It has happened all too often that I read something (a document, a plea or an argument) and wonder whether it would have been billed for written had its authors known that it would be publicly available.
Nico and Miguel Rato wrote a few years ago about sunshine regulation; I would argue that sunshine lawyering would also be a good thing; why not follow the example of the U.S., where Court filings are considered to be public records? There are very good reasons why this should not be the case in administrative proceedings, but I see no impediment in the case of Court proceedings, and nor does the European Parliament’s report recommending that changes be adopted in order to facilitate access to Court files at the EU level.
Chillin'Competition 
You are right. Court filing should be public!
jsuderow@suderow.es
2 May 2013 at 5:26 pm
As usual, excellent and provocative analysis.
The classic arguments developed against public disclosure of submissions in front of the Court are contained in the famous API judgment, virtually the only judgment in which third party access to documents in closed and pending cases was at issue.
(1) The Court held that the disclosure of institutional pleadings in pending cases should be presumed as undermining the protection of judicial proceedings. As a result of this judgment, EU institutions are under no obligation to examine on a case-by-case basis each request before denying access to its pleadings in cases that are not yet decided, even if the hearings have already taken place. Conversely, this presumption ceases to exist once a decision has been issued in a case. While these documents are still protected under Article 4 (2) of Regulation 1049, the institutions are required to undertake a case-by-case analysis for each disclosure request.
(2) In the Court’s view, disclosure would arguably render meaningless the possibility to hold proceedings in camera and
(3) jeopardize the principle of equality of arms, exposing the arguments of the institutions to public debate unlike their opponents.
(4) Finally, it might place EU Courts under ‘external pressure, albeit only in the perception of the public, and would disrupt the serenity of the proceedings.’
After having interviewed several judges as well as référendaire on this issue (and spent a good deal of time thinking about this), I came to the conclusion that none of these arguments holds true today. The policy arguments in support of disclosure (among which those you have developed in this post) prime over the formalistic posture of the Court over transparency of the legal inputs. Plus, in the post Lisbon world Article 15 TFEU extends the principle of opennes to the work of the Court.
I have a forthcoming paper delving on this issue. Now I have an extra argument to claim for more openness: to contribute to make the lawyering market more transparent. I will be glad to reference this post 😉
Alberto Alemanno
2 May 2013 at 7:21 pm
Uhm… I always had a more cautious approach on this issue. I tend to think that cases should be tried in court and not elsewhere. So, I do see a reason for not disclosing pleadings BEFORE a case is finally and fully decided. Clearly, there are less reasons to keep these docs confidential after a final ruling is out. In any event, submissions can include confidential info/business secretes (especially in competition cases, but not only), so they could never be disclosed automatically. Parties would have to be asked to provide ‘non confidential versions’ before the documents are made public.
For info: the EU is always publishing on DG TRADE’s web-site all submissions filed with the WTO adjudicatory bodies (panels and appellate body). Normally, documents already filed are uploaded after the hearing(s) has (have) taken place. Other jurisdictions (e.g. the US) follow a similar practice.
luca
3 May 2013 at 11:01 am
I tend to agree with Alfonso and Alberto. For such interest as it may have, the position in England and Wales (in the ordinary civil courts; the position in the CAT is less clear) is that non-parties can get hold of copies of statements of case, which are considered public documents, but not (at any rate without a court order) copies of docs filed with or attached to claims. Non-parties are at liberty to apply to the court for copies of other statements of case (including, of course, pleadings). In practice, therefore, it is common for non-parties (including the media) to get hold of copies of detailed grounds of claim. It is however open to a party to the proceedings to apply for an order restricting dissemination of pleadings etc. See generally CPR r 5.4C. Suffice it to say that these rules are well established and have not given rise to any of the problems mooted by the Court in API, summarised by Alberto.
Christopher Brown
3 May 2013 at 1:25 pm
In Norway, merger filings (non-confidential version) are available to anyone on request. The disparity in quality between firms is very, very easy to spot by glancing at the general substantive standard of their filings, not to mention ocassionally shocking displays of spelling, grammar and punctuation. My favourite substantive howler – so far – was when a “Tier 1” firm defined the geographic market for online gaming as “worldwide, because demand happens on the internet.” Full Stop; Epic Fail.
Hugh Jass
3 May 2013 at 1:40 pm
You know your views on the Google commitments are hotly anticipated by many of your loyal followers, even more so than the upcoming Game of Thrones episode 😉
Sean
3 May 2013 at 4:55 pm
As experienced inhouse counsel I can only agree with more transparency. However, I believe inhouse lawyers have a duty to review and discuss arguments and question their outside counsel. If they are clever clients, they will also educate themselves sufficiently to be able to assess the quality of their lawyer’s work. Good outside counsel also spends the time to educate their clients and don’t hide behind the specialised jargon. To all lawyers wanting to create customer loyalty: don’t try to impress your clients with complexity. It doesn’t pay off.
Mirna Hidalgo
6 May 2013 at 10:54 am
Would consumers of legal services take the time to read them, and if they did, would they be able to tell the good from the bad? Also, are written submissions the key to good competition lawyering? On this side of the pond, probably not.
Adam Miller
10 May 2013 at 9:20 pm
Those are very good point, Adam; many thanks.
My thoughts were most likely influenced by some specific cases I had in mind, and it’s good to be able to refine them through these questions.
As to the first question on whether consumers of legal services would bother to read written submissions, it’s very likely that they wouldn’t in most cases, but (i) having the opportunity to do so when needed would be good; and (ii) other lawyers or academics could have access to those documents and good or bad lawyers would then be exposed. Over time, “the market” would end up having a better informed sense of who is good and of who isn´t.
As to the second question, written submissions or hearing transcripts are certainly not the key to good competition lawyering, but they are a very good proxy to assess litigation habilities (a subset of those that a good competition lawyer should ideally have). Of course written Court submissions failt to capture many other skills. Also, as I wrote in the original post, transparency of legal submissions could contribute to remedying some bad lawyering: there are a few reputed lawyers who would probably cease resorting to some practices if they knew their work could be exposed.
Alfonso Lamadrid
13 May 2013 at 2:27 pm
[…] on the challenge in identifying good competition lawyering (specific to Europe, but similar to the […]
Antitrust Links of the Week « Links Of The Week « UpwardPricingPressure
6 June 2014 at 4:02 pm