Guest post by Dr Liz Curran, Associate Professor in clinical legal education at Nottingham Law School. The views in this blog are her own
Curran: Some regulatory objectives are more important than others
The recent BBC Panorama episode which investigated solicitors acting for the Post Office, highlighted how some legal professionals can lose sight of their role to uphold the rule of law and the public interest.
Limited clarity about whether legal professionals must treat these duties as paramount has resulted in a distorted view emerging where ‘acting in the individual client’s best interests’ is justifiable and trumps other countervailing obligations.
Unless there are changes, this justification enables legal professionals to act without a balance of commercial considerations against ethics, and how this could undermine the rule of law. This issue is discussed in the report Regulatory Leadership in Access to Justice by myself and Professors Jane Ching and Jane Jarman (see the Legal Futures news story too).
There’s a misapprehension in the legal profession that a client’s interests always come first, as well as a potentially dangerous over-identification with their cause.
Without appreciating that a duty to the rule of law and public interest is a necessary counterweight, there’s always risk of an ethical capsize.
Sometimes the requirement is explicit, in codes of conduct, professional principles or procedural rules in courts and tribunals. At other points, it’s implicit in the need to uphold integrity and independence.
Professor Stephen Mayson has observed that regulation is problematic, often too late or focused on minor misdemeanours, ignoring the endemic issues.
Perhaps the latter is not only because of poor ethics training of the legal professions and law students, but also how regulation is conducted. Maybe regulators focus on the minor misdemeanours because they feel ill-equipped – or under too much pressure by representative bodies – to act with vigour or foster environments where the profession is enabled to act ethically, against all the competing cultures that drive lawyers to what Professor Richard Moorhead describes as system complacency and moral disengagement.
Legal education in professional ethics could be refocused to consider the potential for ethical fading, in addition to the mechanics of a code of conduct or ethics. Many universities don’t mandate a legal ethics course in their LLB, perhaps recognising that not all graduates join the professions (and many legal professionals don’t have an LLB).
There remains only a limited requirement for legal ethical training (despite a fuller model being proposed to the Law Society in 2010 by Professor Andrew Boon).
I argue good ethics training always benefits law graduates, irrespective of their career pathways, and will stand them in better stead than a degree without it.
In England and Wales, the majority of the regulated legal professions include ethics in their competence statements and training. Nevertheless, except for CILEx Regulation’s ‘professionalism’ requirement, there are no requirements for legal ethical training in continuing competence/CPD schemes or as a condition of issuing practising certificates
As society changes and new challenges present themselves, ongoing aptitude in identifying and ethically managing dilemmas of practice are critical. In my view, the current system doesn’t equip the profession for the challenges they face. This point was made both in recommendation 9 of the 2015 Legal Education and Training Review report, and in our study, referenced above.
Richard Moorhead’s work is leading in this field, and he has identified ‘legal aggression’ – actions that may appear lawful but are misleading or unethical for lawyers: “ Improperly implying that something is legal, or true, or sometimes even just, when it’s highly likely to be the exact opposite of that, typically untrue or illegal or unlawful. And done knowingly or recklessly, that is usually professional misconduct.”
This has been laid bare in many of the recent inquiries into lawyer conduct. Examples include the collapse of Axiom Ince.
Having identified the problem, what’s the solution?
I suggest amending section 1 of the Legal Services Act 2007 to insert a new regulatory objective, namely that the “duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty”.
The regulatory objectives are not ranked in order of importance, but paramountcy is found in many professional codes, such as those of the Solicitors Regulation Authority (SRA) and IPReg, where it’s explicit that the duties which safeguard the wider public interest take precedence over the individual client interest, in circumstances in which they conflict.
It’s one of the reasons why a lawyer may withdraw from a case because of an inability to comply with the duty to the court, or from a commercial transaction because of a professional conflict. This has always been the case; it’s just that some lawyers don’t take the obligation seriously and this has wider implications for the public interest, consumer protection and equality before the law.
This greater paramountcy over other duties will better guide legal professionals to protect the integrity of the rule of law and confidence in the administration of justice in the public interest.
It may also help meet existing regulatory objectives such as section 1(1)(c) (improving access to justice) and section 1(1)(d) (protecting and promoting the interests of consumers). This is canvassed in more detail in a policy brief, annexed to my submission to the justice select committee’s inquiry into access to justice.
The need for good and mandatory legal professional ethics training at each level of university and/or vocational course (so lawyers know the requirements are there in the first place) and continuing competence/CPD should also be considered – especially if the main issue is a lack of agility in ethical reasoning.
It could be configured in a similar way to anti-money laundering training. Many will have qualified years ago and under a very different regulatory regime. So, it’s not just the framework but the way it operates that needs adjustment.
Other jurisdictions have a paramountcy of duties?
There’s a precedent for this paramountcy in Australia. Legal professionals have paramount duties to the court and the administration of justice, which encourage balancing these with duties to the clients.
In England and Wales, the Bar treats this issue as core duty 1 and the solicitors’ profession as SRA principle 1, but neither give it precedence over other core duties and principles. There’s also clear signalling and messaging from the legal regulator in Victoria to the legal profession on a routine basis reminding them of this.
Other egal professions, like licensed conveyancers and notaries, who don’t go to court, may have ways to bolster ethics in their contexts.
That being said, a legislative amendment would provide greater guidance for the legal professions, regulators and the public on what the ethical requirements are. It might encourage legal professionals to act ethically at the time, rather than wait for the regulator to intervene.
Too often the legal profession criticises the regulator when, as legal professionals, they can exercise their ethical and moral judgement earlier to avert the harm arising in the first place. Ultimately, lawyers must act with honesty, integrity, and independence to ensure the legal system functions fairly and efficiently.
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