The Amicus Interviews: Malcolm Mackay, United Employment Lawyers

The Amicus Interviews are meant for broader discussions on legal education, and the legal profession at the global level. One of the goals of this series of interviews is to get the views of Indian academics on legal education, both in India and abroad.

In this edition, I get the founder of United Employment Lawyers, Malcolm Mackay to discuss the future of legal education, and the legal profession as well. Malcolm has quite an interesting career thus far, he is the founder of Scotland’s “first niche employment law practice” and comes with decades of experience in not only employment law, but also in the workings of the legal profession. Naturally, I was quite keen on hearing his views on the lawyer of tomorrow, necessary changes in the way law is taught, and a whole lot more.

I am quite curious to know what you think about lawyers and their preference for inertia – why are we so hard set in our ways?  

Law has for many years been seen as a safe career choice. After the Second World War parents wanted security for their children saw law as a potentially lucrative career. The legal profession had a monopoly on the delivery of regulated legal services. Parents wishing to encourage their children to study law would often send them to schools where  the curriculum and culture were driven by precedent rather than forward looking and creative thinking. Law tended to attract candidates who prefer a structured and logical way of thinking.

Let me stress, though that there is nothing wrong with that.

The discipline of a legal education brings with it a logic and powerful language, particularly important in areas such as property law for example. Because generations of lawyers have been taught through case law of the importance of precedent there is a mindset that there has to be a precedent to justify a particular approach.

However, in the fast moving world in which we live, a different approach is more appropriate, especially in the human specialisms such as for example the law relating to employment, human rights and immigration. Globalisation, social media and technology have presented new challenges for which there is no precedent.

Another reason why lawyers are hard set in their ways is that so long as good salaries were being earned and there was a certain amount of protection from external competition there was simply no incentive to change. Importantly the way the traditional hourly billing model operates neither encourages nor values entrepreneurial thinking. Young lawyers these days carry none of this baggage and many exciting new opportunities are available for them.

“Another reason why lawyers are hard set in their ways is that so long as good salaries were being earned and there was a certain amount of protection from external competition there was simply no incentive to change. Importantly the way the traditional hourly billing model operates neither encourages nor values entrepreneurial thinking.”

Could you tell me a bit about how you went about setting up UEL, and what were some of the biggest challenges you faced along the way?

I have been an employment lawyer for over 40 years during which time I have striven to design services that are designed around the needs of clients rather than lawyers. Ideally they should coincide but in my view hourly billing can generally work against the interests of the client and can reward inefficiency. It does not incentivise lawyers to bring cases to a conclusion quickly.

Employment law is a good example of a field where early intervention is virtually always in the interests of the client. However in my experience clients, particularly small businesses and individuals, can be put off taking advice if they are simply quoted an hourly rate as that is not an answer to the question “What will the advice cost?” My whole ethos has been to remove barriers to taking advice and I have always found that being able to quote a fixed fee and stick to that removes one barrier. To me this is an access to justice issue.

“My whole ethos has been to remove barriers to taking advice and I have always found that being able to quote a fixed fee and stick to that removes one barrier. To me this is an access to justice issue.”

The background to UEL is that I had created fixed price employment law businesses in the UK and in the Channel Islands. These combined employment law services with HR and health and safety support and were underpinned with a unique form of insurance that we developed with global insurance (www.lawatworkci.com) and was about to develop the concept in other countries when out of the blue I became seriously ill with a very rare variant on a rare illness called vasculitis so had to put international plans on hold for a long period.

Indeed I was in India to explore the potential to develop the concept there and took the view that there would be a market for it. You can find more of the story here and here. So UEL was never planned. I just had to adapt to my condition which still places limitations on me.

This article on introducing employment law in law schools is extremely interesting – any other suggestions on how the curriculum ought to be tweaked? 

I would like to see more being taught around issues such as human rights, immigration, equality and diversity  etc as these are the real human issues. How to behave on social media is also highly relevant.

You have also written, referencing Kelly Twigger’s work, on how law schools need to think about modernising their curriculum – do you think there has been some change in this since you wrote the piece? And if not, then how can one get law faculties to start thinking about this?

In my experience there is change taking place. It is slow as one would expect. I do some work with universities myself. I think that the key is to get the right balance between academic study and practical experience.

In the same article, you also mention how vital it is for a lawyer to build a rapport and understanding with her clients – do you think law schools can aid this process in any way? 

That follows from the last point. The only way you can learn anything properly when human skills are involved is by being with someone who has made a success of creating successful client relationships. Behaviours rub off and values are critical.

I think the real answer, and this happens a lot anyway, is to create working relationships between academics and practising lawyers that focus on creating a well rounded and experienced student. We have regular events at UEL and encourage participation of students and academics as well as lawyers.

“I think the real answer, and this happens a lot anyway, is to create working relationships between academics and practising lawyers that focus on creating a well rounded and experienced student. “

You have also written about the gig economy, and what it means for the labour lawyer. In this context, what is your view of aggregators such as Uber, AirBnb etc which don’t actually provide employment – how does one protect worker’s rights, if this is at all possible, in this gig economy? 

That is a big question and would probably require a separate discussion. Suffice it to say for present purposes that the gig economy does suit many people and the courts are developing new definitions of employees, workers etc. Self employment is becoming more and more the norm.

These brands do depend on people to deliver services for them and can be damaged in the event that they receive adverse publicity about how they treat people. The self employed still have a certain amount of legal protection but at the end of the day the market also has some impact on this issue.

And lastly, do you think India’s legal market should embrace globalisation, and open up to foreign law firms? How have Scottish law firms dealt with this? 

Yes, the only way to deal with globalisation is to embrace it not least because it is reality. Some larger Scottish law firms have become part of global law firms such as Dentons. Globalisation creates significant opportunities for Indian law firms. In India there have always been clearly defined limits on the number of partners permitted in a law firm. But there are different ways of embracing globalisation and with basic new technology, social media etc significant opportunities also exist for smaller law firms.

“In India there have always been clearly defined limits on the number of partners permitted in a law firm. But there are different ways of embracing globalisation and with basic new technology, social media etc significant opportunities also exist for smaller law firms.”

This is one of the underlying purposes of the United Employment Lawyers network that I am developing and we are currently looking to identify the right technology partner to work with to develop it internationally.

The other point I would make is that the law firm model is not the only one.

I favour an approach that blends the best attributes of a traditional high quality law firm with the freedom and flexibility of a consultancy model as this allows one to deliver a wider solution  to clients.

I visited India a number of years ago to investigate the potential and formed the view that significant potential existed for this type of model there. Unfortunately later on before I could develop this thinking the illness I mentioned above got in the way and I was out of action for a lengthy period. However, I plan to be back!