Solicitors may have a regulatory obligation to question the ethics of what their clients are doing or proposing to do, a leading academic has suggested.
Dr Steven Vaughan of Birmingham University, who has authored several pieces of research on lawyers’ ethics in recent years, said the new SRA Competence Statement required competent solicitors to be alive to ethical issues “which are far wider than their own professional responsibility obligations – and far wider than what went before the Competence Statement.
He continued: “It is arguable that this extends to those lawyers being obliged, where it seems relevant, to enter into moral dialogue with their clients.”
The Competence Statement sets out the expected standards of all qualified solicitors, and includes requirements to recognise ethical issues and exercise effective judgment in addressing them, and understand and apply the ethical concepts which govern their role and behaviour as a lawyer. There is no guidance to support these requirements.
The statement is tied to the SRA Handbook. It says: “For a solicitor, meeting the competences set out in the competence statement forms an integral part of the requirement to provide a proper standard of service in accordance with Principle 5 of the SRA Principles.”
Dr Vaughan said this meant that failure to comply with the Competence Statement was a possible breach of Principle 5.
This all meant, he argued, that a competent lawyer is one who is able to recognise ethical issues in relation to what their clients are proposing to do and will counsel those clients accordingly – by showing “effective judgement”.
The academic said: “This will not always mean a form of moral dialogue, but might. So if, for example, a client asked an English law firm to produce an opinion on whether X was a true sale under English law when the relevant transactions were only being undertaken in the US, I think a lawyer would be required to ask the client why they wanted that opinion and what they planned on doing with it. I think the Competence Statement would require that of them.”
He acknowledged that this was debateable, identifying a counter argument: “namely, that the two requirements I focus on are part of the broader ‘acting with honesty and integrity’ rubric and so any consideration needs to be framed within those two values – and, further, that such values do not require the sort of counselling I am saying might be needed. I see this. But I also see that these two sub-requirements are new, novel and not so far tested or expanded on.”
It may be, Dr Vaughan said, that the Competence Statement – which has been totally under the radar –is “possibly highly radical and reshapes the regulatory duties on solicitors”.