Tick-box compliance: Firms may see discussions simply as ‘something they have to do’
Solicitors Regulation Authority (SRA) plans for solicitors to attend compulsory three-hour ethics discussions “could lead to a ‘box-ticking’ approach”, academics have warned.
The UCL Centre for Ethics and Law (CEL) said the requirement that discussions be facilitated by solicitors with at least three years of post-qualification experience was also “problematic”, given the “wealth of evidence” that solicitors “may not always have sufficient and up to-date working knowledge” of ethical obligations.
Compulsory ethics discussions are one of the three main elements in the SRA’s plans for a beefed-up continuing competence regime, published in April.
The other two elements are compulsory recording of learning and development and new powers for the regulator to direct that specific training is undertaken where it has competence concerns.
The CEL said it agreed with the former, though it also risked becoming “a ‘tick-box’ exercise unless there is broader infrastructure within the firm to ensure this does not happen”.
On compulsory discussions, the SRA had paid “insufficient regard” to “the building blocks of ethical behaviour”, which went beyond knowledge of ethical and professional duties such as the development of ethical awareness, moral agency, resilience and the courage to speak up.
The proposals could lead to “a ‘box-ticking’ approach where organisations consider that this is something they ‘have to do’ rather than it being an approach which is capable of adding value across the organisation”.
There was also a danger that the three hours suggested for discussions could “act as a three-hour ceiling, not a floor”, and the required number of participants of between three and 12 was “problematic and overly prescriptive”.
On the requirement for the facilitator of the discussions to be a solicitor, the CEL said “the skills of lawyers do not always translate into the skills required” of effective facilitators.
“Regrettably, there is a wealth of evidence, both empirically and within the SRA’s own thematic reports [that solicitors] may not always have sufficient and up to-date working knowledge of regulatory and ethical obligations.”
The CEL agreed in principle with the proposal that, where there was a “reasonable risk of identifiable harm”, supported by evidence, the SRA “may require solicitors to complete specific learning and development”.
As an alternative, the CEL proposed a “multi-layered and hybrid approach” to ethics training, made up of:
- Standardised online training provided by the SRA, including training for facilitators;
- A requirement for law firms to provide tailored ethics training appropriate for their business model, sector and risk;
- A specific requirement that ethics training, targeted at junior lawyers, takes place within the first three years after qualification;
- A requirement for the COLP/COFA to report annually on how ethics and ethics training is embedded across the organization; and
- An annual ethics conference held by the regulator “to support and enrich discussions on professional duties”.
Separately, CEL alumnus Professor Steven Vaughan, a leading UK legal ethicist who is now dean of the Faculty of Law at Monash University in Australia, warned: “Here’s the uncomfortable truth about mandating anything with a defined duration, a fixed frequency, and a signature at the end: you get compliance theatre.
“The Victorian Legal Services Board in Australia found exactly this when it reviewed its own CPD scheme; a quantitative framework that ended up reinforcing the box-ticking problem it was meant to solve.”
This was “precisely the diagnosis” that drove the SRA’s 2016 reforms of continuing competence, which scrapped the requirement for a fixed number of hours of CPD every year, he said.
Writing recently on the Lawyer Watch blog, Professor Vaughan said the a compulstory discussion swapped “a really hard problem (building genuine ethical culture in law firms and other complex organisations) for an easy-to-measure proxy: bums on seats, three hours, and a signature.
“It will generate paperwork. It will generate compliance. It is unlikely to generate much actual ethical courage. And I doubt it will lead to much actual change.”
In their responses, Birmingham Law Society warned that compulsory discussions could cost the profession £100m every year and the national Law Society noted that one large law firm had calculated lost productivity at £1.2m.
Leave a Comment