Atkinson: Current system is robust
High-profile scandals like the Post Office are “not indicative of a generalised failure of ethical standards within the profession”, the Law Society has insisted.
However, the profession has raised concerns about the quality of the ethics component of the Solicitors Qualifying Exam (SQE) and it might be necessary to “promote more specific teaching”.
Responding to the Legal Services Board (LSB) consultation on a statutory statement of policy on ethics, the society said the three main examples of ethical failures by the profession given were the Post Office Horizon scandal, misuse of non-disclosure agreements (NDAs) and strategic lawsuits against public participation (SLAPPs).
“While these are undoubtedly areas where has been some serious harm to the public interest, the most egregious behaviour is not reflective of the conduct of the profession more broadly.
“By extrapolating too much from these areas, the LSB risks drawing disproportionate conclusions that in turn have the potential to lead to overregulation, contrary to the objectives of the Legal Services Act.
“The LSB should conduct a more thorough audit of enforcement and supervision effectiveness before applying uniform measures that may not be appropriate across the board and could lead to further burdens being placed on regulators and the associated professions.”
The society said the LSB’s proposals “should not undermine the value and coherence of existing schemes” like the Conveyancing Quality Scheme, “erode solicitor discretion in how to manage ethical tensions in commercial relationships, or drive up compliance costs”.
Rather, the LSB, as an oversight body, should focus on its “core responsibilities” of supporting principles-based regulation “rather than prescribing frameworks that dictate operational activity”.
Proposed requirements for firm-level internal reporting lines, workplace culture auditing and ‘ethical empowerment’ activities potentially went too far, it argued.
Rather, there could be more guidance and support from both regulators and representative bodies, work that the society was already undertaking in its ethical framework for in-house solicitors launched last month.
The society said it was planning to develop a framework for private practice solicitors too.
On education and training, the response said “concerns about the quality of education and training in and assessment of ethics” in the SQE had been raised by the profession, with “many suggesting that this is a shift away from the emphasis placed on it in the qualifying law degree and legal practice course.
“Whilst we understand that ethics is assessed within the questions in the SQE assessments, it may be necessary to make this more apparent to promote more specific teaching on this topic during pre-SQE assessment education and training provision.”
Richard Atkinson, president of the Law Society, commented: “While the LSB’s intention to reinforce public confidence in legal services is understandable, there is a failure to acknowledge the robustness of the current regulatory system.”
He said most of what was included in the proposed statement of policy was already covered by Solicitors Regulation Authority (SRA) rules.
“The view that professional ethics is not front and centre of how solicitors operate is a misconception which needs to be addressed.
“Isolated or exceptional events that draw a large amount of public attention are often assumed to be more representative of the way the profession conducts itself than is actually the case.”
SRA research published last December found that too many solicitors only checked their professional obligations when things go wrong and were over-reliant on their firm’s compliance officer for legal practice to keep on top of regulatory issues.
The regulator found solicitors were not as knowledgeable about their responsibilities as they thought they were.
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