LSB pressures regulators to improve lawyers’ ethical approach


Ethics: LSB set to consult on five outcomes that regulators will have to achieve 

Lawyers’ lack of proper regard for ethics, and their “disproportionate focus” on client interests above all else, means regulators need to take action to improve compliance, the Legal Services Board (LSB) has decided.

It is set to require all the frontline regulators, like the Solicitors Regulation Authority and Bar Standards Board, to put new measures in place to improve ethical standards and behaviours.

Following its three-year professional ethics and rule of law project, the LSB’s full board will tomorrow be asked to approve for consultation a draft policy statement, which sets out five outcomes to support lawyers in understanding and upholding their professional ethical duties.

The regulators will then be required to report on how they achieve these outcomes.

The paper before the board cited issues like the Post Office scandal, misuse of non-disclosure agreements, and concerns over strategic lawsuits against public participation as putting ethical behaviour in the spotlight.

“Our evidence has identified types of conduct that fall short of public expectations of lawyers to uphold professional ethical duties, ranging from unintentional behaviour, through to more severe, intentional and even criminal conduct.”

These included abusing or taking unfair advantage through excessive conduct; silencing those with valid legal claims and preventing victims speaking out; poor case handling, such as “misleading courts, making false claims, distorting evidence, and misrepresenting facts”; challenges maintaining independence, particularly for in-house lawyers; “ethical apathy” among lawyers; and “creative compliance” to circumvent the intended purpose of the law.

The LSB’s analysis of their cause centred on “a lack of understanding and/or due regard to the significance” of what upholding ethical duties meant in practice, and how to prioritise different duties – to the client, the court and the administration of justice – when they came into conflict with each other.

There was also a disproportionate focus on “preserving client interests to the detriment of duties to the court/public authorities, rule of law and administration of justice” and a lack of empowerment and support to enable lawyers to maintain their duties in the face of commercial pressures and powerful clients, particularly for those working in-house.

The conclusion reached by the LSB executive, the paper said, was that there was a case for regulatory intervention.

The first outcome in the draft policy statement is that regulators should ensure lawyers “have the right knowledge and skills on professional ethical duties, both at the point of qualification, and throughout their career”.

The poor conduct identified was “in large part symptomatic of the pre-qualification education and training, and the codes of conduct of the regulators”, according to the specialist reference group consulted by the LSB.

“The codes were considered too prescriptive without teaching aspiring lawyers about the overarching role they play in society and how to prioritise different duties in practice.”

Outcome two is that regulators should adapt their rules, regulations, guidance and other resources to ensure that professional ethical duties are the core foundation for the way lawyers behave and act throughout their careers:

“While regulators have ethical frameworks through codes of conduct, principles, and guidance, the evidence we have exemplifying poor ethical conduct indicates regulators’ expectations around professional ethical duties are often either not properly understood or are disregarded altogether.”

Outcome three is to ensure lawyers are “supported and empowered to uphold their professional ethical duties when they are challenged”.

The paper noted the significant roles workplace culture and leadership played in influencing and enabling ethical conduct, but that codes of conduct and guidance did not generally consider them.

“While we can see the beginning of some changes to this, for example the SRA’s guidance on in-house lawyers which raised awareness about toxic work cultures and mental health and wellbeing, there appear to be no established practices that take account of the intersection of professional ethics, working environments and wellbeing.”

Outcome four is to identify and use appropriate tools to monitor lawyers’ conduct and, where necessary, take action to address non-compliance with ethical duties and outcomes five is to periodically evaluate the impact of the measures taken to achieve the other four outcomes.




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