Hill: Regulators have to turn intent into results
The “lack of energy” from legal regulators to deal with what appears to be strategic failures of regulation – such as the Post Office scandal – is becoming “mildly ridiculous”, the chief executive of the Legal Services Board (LSB) has argued.
Matthew Hill, who is leaving the oversight regulator next month, also questioned whether the codes of conduct for lawyers were capable of driving ethical behaviour.
Addressing last week’s Westminster Legal Policy Forum conference on legal ethics, Mr Hill said it was “hard to avoid the conclusion” that some of the failings of legal ethics at the heart of the Post Office scandal were manifested in other ways that have become matters of broad public concern, such as the use of non-disclosure agreements (NDAs) to cover up wrongdoing like sexual misconduct, for example, and strategic lawsuits against public participation (SLAPPs).
The conference had already heard that NDA and SLAPP misuse was continuing, despite regulatory warnings.
The LSB has been looking at professional ethics for the past 18 months and he said regulators and leaders of the profession needed to accept that “there may – indeed is likely to be – a strategic failing with current approaches to regulation”.
He explained: “While we have seen some moves by regulators to reflect public concern – for example the warning notices issued by the SRA on SLAPPs and NDAs – it has been slower and less extensive than I think any reasonable observer would now consider justified.
“I do have some sympathy for the regulators in this respect. They frequently face stiff and concerted opposition to attempts to make regulatory interventions.
“But it seems to me that public concern is now so widespread that a continued lack of energy from the regulators and indeed the professions themselves to grapple meaningfully with the issues is starting to look stark and indeed mildly ridiculous.”
Mr Hill stressed that he was not talking about individual cases. “What I am talking about is asking the question ‘how are these things happening despite our system of regulation?'”
Regulators also had to turn intent into results “so that people who have suffered harm can see that there are consequences for the wrongdoers”. Otherwise, “it is all rather pointless”.
“If you publish a warning notice on SLAPPs, for example, and then dismiss all the complaints brought under that notice, pretty soon people are going to lose faith.”
He also questioned whether the hundreds of rules that make up the various regulatory codes of conduct across the law were “actually capable of driving the positive behaviours and values that the public has the right to expect from legal professionals”.
“I know it is a provocative thing to say, but I frequently wonder whether it might be possible to be in apparent full technical compliance with, say, the BSB or SRA handbook and still be a really bad barrister or solicitor.
“It may be that there has been too much focus on individual transgressions by individual lawyers and not enough focus on societal risk, leadership, culture, ethos and values.”
Mr Hill added that he has stopped using the disclaimer that “the vast majority of lawyers behave perfectly ethically all of the time”.
This was “not because I do not believe it to be true”, he explained, “but more because I don’t think anyone can actually demonstrate that it is. It has become an article of faith, which to my mind has no place in a rational debate about the future of legal ethics”.
“Instead I am going to say that I think there are two statements that I think are almost certainly false. The first is that ‘all lawyers are crooks’. The other is ‘it’s just a few bad apples’.
“In between those two statements, however, lies a very complicated landscape, and one about which we probably ought to be more honest with ourselves if we are to drive the sorts of improvements that I think the public deserve.”
The session chair, former Attorney General Lord Goldsmith, asked to what extent lawyers in private practice for private clients have an obligation to support the public good.
Mr Hill said one of the implications of that question “is that there are some lawyers who don’t owe any obligation to the broader public interest and that we permit them to act almost as hired guns and conduct any sort of litigation or other legal service activity without any constraint at all.
“And I think there will be lots of people who would be very concerned if we thought that was the case.”
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