The Legal Services Board (LSB) is to begin work on identifying the gaps in regulation that have allowed unethical or unprofessional conduct to emerge.
It is the latest stage in the LSB’s professional ethics and the rule of law work programme, which for the past 18 months has been gathering evidence of behaviour that falls short of the standards expected by the public.
It will now begin exploring the extent to which regulators’ existing rules and codes of conduct are capable of addressing professional ethical misconduct and considering whether regulatory intervention may be necessary.
In a paper before today’s meeting of the oversight regulator’s main board, the LSB said that while it was confident the evidence obtained had helped to identify six categories of conduct that were of concern, “we do not have sufficient evidence to draw conclusions about the prevalence of such conduct across the profession”.
The six areas are: silencing those with valid legal claims and preventing victims from speaking out; abusing or taking unfair advantage through ‘excessive’ conduct; other “case-handling tactics”, such as “misleading the court or others by making false or weak claims, distorting interpretation of evidence and misrepresenting facts”; managing conflicts of interest and independence; “creative compliance” with the law; and “client association (and disassociation)”.
By the latter, it meant “representing clients in ways that assist (or likely assist) their continued wrongdoing such as repeated drafting of NDAs for an abusive client, or disassociation with clients, for example, discriminating against potential clients such as asylum seekers, prevents access to justice and undermines trust and confidence in rule of law principles”.
The paper said the evidence had already highlighted specific areas where regulation may need to be strengthened, such as around non-disclosure agreements.
The LSB is now to ask all the legal regulators to explain how they address these types of conduct, including how they prevent it, as well as how they supervise and enforce compliance with their existing rules and guidance.
“This information will enable us to carry out a gap analysis of the existing regulatory framework and to understand whether further regulatory intervention may be necessary,” the paper said.
This will likely lead to the LSB publishing a consultation and then next year a policy statement setting out its expectations for regulators to implement “to ensure that their regulated communities maintain sufficiently high standards of professional ethical conduct”.
Meanwhile, in his report to the board, chief executive Matthew Hill said the government has invited the LSB to lead the SLAPPs taskforce workstream on legal services ethics.
The taskforce was set up last September with the aim of clamping down on strategic lawsuits against public participation (SLAPPs).
The ethics work is looking to “ensure that legal services professionals are confident in recognising and handling potential SLAPPs cases, and that the regulatory framework is capable of ensuring high-quality services underpinned by strong professional ethics,” Mr Hill wrote.
Members of this workstream include the Solicitors Regulation Authority, Bar Council, Ministry of Justice, Bar Standards Board and Law Society.