The Chartered Institute of Legal Executives (CILEX) has responded to the Legal Services Board’s (LSB) Upholding Professional Ethical Duties consultation saying it feels annual training on ethics should be mandatory.
The consultation, which closed on 29th May, proposed a draft statutory statement of policy setting out the LSB’s expectations of how frontline regulators will improve knowledge of, and adherence to, ethical standards.
“CILEX broadly supports the rationale for the proposals contained in the consultation paper. The LSB has a unique facilitator role to overlay expectations of embedding and upholding professional ethics in the legal profession. The risk it will have to mitigate is, though, being too attracted to a ‘one size fits all’ approach.”
But CILEX caution against placing further ‘onerous duties on frontline regulators that will deliver little more than what is currently in place.’ The body says ‘overly detailed’ expectations could straight-jacket regulators, who require flexibility to make any implementation tailored to the regulated community. The proposed levels of monitoring in the draft statement are also unlikely to be achievable.
“There are risks that the proposals could be onerous without adding any greater benefit than is already delivered by the specialist approaches of individual frontline regulators. There is no real evidence that the proposals will deliver that anticipated benefit nor for why the current arrangements are so deficient.”
“The refocus on professional ethical duties and the LSB’s unique facilitator role to drive co-ordination and improvement in this area is welcome but care in the execution of the policy will have to be handled proportionately and flexibly if any actual benefits are to be realised.”
In a similar vein CILEX say there is not ‘sufficient evidence’ the LSB can justify the ‘extremely onerous and prescriptive system’ in financial services under the Senior Manager Regime. Any intent to create an equivalent framework would be ‘at odds with the flexibility advocated… for the legal sector.’
There are undoubtedly good ideas in the consultation, including mandatory annual training on ethics for all lawyers, which CILEX supports. But the response points out that many organisations already provide significant support for ethical practice; CILEX themselves redeveloped the CILEX Professional Qualification to ‘ensure that ethical behaviour is embedded from the start of the training of aspiring lawyers.’
“It should go without saying that lawyers always have their ethical responsibilities at the forefront of their minds, but we recognise that recent history has shown this is not always the case. Nobody should doubt that legal regulators and organisations like CILEX are seized of the need to address the issues raised by the LSB – indeed, we have put them at the heart of the CPQ. But in the understandable push to set high expectations, the LSB needs to avoid inadvertently hampering the work to achieve them.”
said CILEX President Yanthé Richardson.
CILEX believes that the general definition of ethical behaviour and outcomes is a useful baseline for frontline regulators and that there should be a requirement that all comply with this. However, it does not believe that specific expectations above and beyond these are merited.
Instead, a three-step approach should be applied:
1. Are frontline regulators enforcing the general definition of ethical behaviour?
2. Do frontline regulators have appropriate procedures in place to ensure that the outcomes can be achieved?
3. Do frontline regulators have appropriate procedures in place to address circumstances where unethical behaviour has occurred or the outcomes not complied with?
