Examples of unethical conduct undermining rule of law – LSB research

The Legal Services Board (LSB) has published new research concluding that proportionate regulation has a role to play in supporting the rule of law and responding to lawyers’ unethical conduct. 

The report, by Professor Richard Moorhead and Professor Steven Vaughan, explores the professional commitment of lawyers to uphold the rule of law, including promoting respect for the law, counselling clients towards legality and helping resolve disputes in the interests of justice. It cites several examples of how lawyers’ conduct can undermine their commitment to the rule of law. They include:

• Discriminating against potential clients
• Representing likely wrongdoers in a way that supports their continued wrongdoing
• Abusing or taking unfair advantage of other parties, e.g., in strategic lawsuits against public participation (so-called SLAPPs)
• Repeated silencing of claimants, e.g., through the misuse of non-disclosure agreements
• Facilitating ‘creative compliance with the law’

The LSB and the regulators it oversees have a statutory duty to support the rule of law, as well as to promote the public interest and promote and maintain adherence to the professional principles. The report concludes that it is important to embed the rule of law within the rules, guidance, and practices of regulators and legal service providers. This can be achieved by:

• Continuously developing an evidence base about the risks posed by lawyer misconduct to the rule of law
• Using this evidence to reflect on and adapt the rules, guidelines, and operational strategies of regulatory bodies and legal service providers
• Understanding the challenges at various levels, including the behaviour of individual lawyers and the relationship of lawyers to their organisations (whether it’s a law firm, chambers, or an in-house legal department)

LSB Chief Executive Matthew Hill said:

“The LSB is committed to ensuring regulation supports ethical decision-making and addresses any existing regulatory infrastructure weaknesses. This review gives us a greater understanding of the importance of the rule of law in underpinning rules and guidance for the profession, and builds on our evidence base for how the profession can target negative behaviours that can erode public trust and confidence. The review findings will support the LSB-led programme of work on professional ethics and the rule of law.

We will continue to work with stakeholders across the sector, including leaders in the profession, to ensure regulation supports cultures that insist lawyers act with independence, integrity, and honesty in their everyday practice, no matter their client or area of law.”

Professor Richard Moorhead and Professor Steven Vaughan said:

“We hope the report serves as a timely reminder that the rule of law depends on the independence and integrity of its regulated practitioners. Professional ethics is central, not subsidiary, to the rule of law and something in which the professions, regulators, courts, business, and the public all share an interest.”