Placing further ‘onerous duties on frontline regulators that will deliver little more than what is currently in place‘ was one of the comments from CILEX in response to the Legal Services Board’s ‘Upholding Professional Ethical Duties’ consultation which closed last week.
Now The Law Society of England and Wales have weighed in on the consultation suggesting is risks ‘undervaluing’ the work of the Solicitors Regulation Authority (SRA).
The consultation was launched in the wake of what the LSB believes is a decline in professional ethical duties; resulting in conduct that falls short of public expectations of lawyers. The LSB point to what is describes as ‘unintentional behaviour through to more severe, intentional and even criminal conduct.’ These might include misleading courts and misuse of non-disclosure agreements (NDAs) which erode public confidence. It also points to the scrutiny thrust onto the sector by the Post Office Horizon IT scandal which brought into question the conduct of solicitors and barristers.
In its research the LSB identified a lack of understanding of what ethical duties means in practice; conflicting priorities when it comes to duties to the client, duties to act with independence and integrity, and duties to the court to act with independence in the interests of justice; and a ‘disproportionate’ focus to act in the best interest of clients to the detriment of professional ethical duties as key contributors to the issue. The consultation sought views on a ‘statutory statement of policy for the purpose of setting outcomes and expectations for regulators to take steps in the interests of the public and consumers’.
While the Law Society broadly welcomed the proposals it warns the ‘scope and tone of the LSB’s consultation… risks overstating the systemic nature of the issues and undervaluing the current regulatory mechanisms overseen by the SRA.’
“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. Most of what is included in the proposed statement of policy is already covered by the SRA regulations. The LSB identifies issues such as non-disclosure agreements (NDAs) and strategic lawsuits against public participation (SLAPPs), both of which the SRA has taken steps to address,”
said Law Society president Richard Atkinson.
“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. 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.”
“Most of our members are already aware of what good ethical practice comprises. However, with the day-to-day commercial pressures faced by them, ethical dilemmas can arise and prove challenging for many solicitors, at all stages of their career. We recognise that more can be done to support the legal profession with the ethical challenges they face. For example, one intervention the SRA might consider is to issue case studies and guidance, to help build awareness of ethical issues, and confidence and skills in addressing them.”
Like CILEX whose own work to redevelop the CILEX Professional Qualification to ‘ensure that ethical behaviour is embedded from the start of the training of aspiring lawyers’ the Law Society say their own in-house guidance helps ‘build the skills, behaviours and workplace culture’ to enable its community to embed good ethical practice and thinking.
Atkinson adds the LSB should provide evidence of ‘systemic failures across the diversity of professional practice versus high impact but isolated failings’ which necessitates the proposals within the framework.
