- In Practice
- In Business
- Moving On
Ethics and the legal profession, part three
In the last of three articles describing the history of ethics and the legal profession, Mark Humphries looks at the development of professional regulation and considers future ethical challenges
The principles of ethics followed by lawyers since medieval times have often been the subject of judicial comment but were not committed to any written or permanent form until the 20th century. The Law Society’s A Guide to the Professional Conduct and Etiquette of Solicitors was first published in 1960 and ran to eight editions before being superseded in large part by the coming into force of the Law Society’s Code of Conduct in 2007. The bar’s Code of Conduct, first published in 1981 and now in its eighth edition, was equally a creature of the 20th century.
In earlier times it was said that no absolute code could be laid down but that (in the words of Lord Macmillan) the solutions to the daily problems arising from the duties of the advocate ‘… are left to the advocate’s honour …’ Yet a number of attempts were made to define the advocate’s ethical obligations. Lord Macmillan identified five core duties of an advocate: ‘… a duty to his client, a duty to his opponent, a duty to the court, a duty to the state and a duty to himself’. Sir Malcolm Hilbery regarded the advocate’s code of honour as being found in ‘the traditions of the profession’, to be learnt at ‘the schools of the profession … the Inns of Court’. Du Cann observed that the proper observance of these duties ‘may prevent [the advocate] ever rising to his feet at all, whilst a failure to follow them may result in an appearance before a disciplinary committee … and the striking of his name from the list of those qualified to practise in the courts’. He identified the essential characteristics of an advocate as honesty, judgment, courage, sincerity, humanity and industry.
In the later part of the 20th century the ethical principles, particularly those governing solicitors, became more detailed and consequently more complicated. But an attempt was made to separate matters of principle, recorded in ‘practice rules’, from matters of detail and interpretation, recorded in notes to the practice rules. This trend continued with the publication of the Law Society’s Code of Conduct which states the core duties of solicitors and the rules of professional conduct but also contains a substantial volume of guidance notes interpreting and commenting on those rules.
Inevitably, changes in practice have brought with them a re-evaluation of certain ethical principles. A good example is the recent developments in litigation funding.
Historically, English law has refused on public policy grounds to recognise arrangements whereby litigation was funded by third parties (maintenance) or whereby a third party would maintain an action in return for a share of any award (champerty). A person is guilty of maintenance if he supports litigation in which he has no legitimate concern without just cause or excuse; champerty occurs when the person maintaining another stipulates for a share of the proceeds of the action or suit.
In Re Trepca Mines (No 2)  1 Ch 199 Lord Denning MR said: ‘The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses.’
But public policy in this area dramatically changed during the 20th century. For example, the state often maintains litigation through legal aid funding. This is due to a general shift in emphasis away from the principles that justified a prohibition on maintenance and champerty towards an emphasis on access to justice for all. Despite the fact that some lawyers resisted the introduction of legal aid in the post-war era on the ground that the independence of lawyers to act in their clients’ best interests would be compromised by their responsibilities to the legal aid fund, the principles behind legal aid are now firmly embedded. Along with this development a new paralegal sector has grown since the 1970s, including Citizens Advice Bureaux and law centres which further assist litigants without means.
The courts will also now uphold certain funding arrangements provided by solicitors and third parties. For example, section 58 of the Courts and Legal Services Act 1990 (as amended by section 27 of the Administration of Justice Act 1999) has modified the common law rules on maintenance to permit solicitors to work under certain ‘no win, no fee’ arrangements known as conditional fee agreements. In addition, litigation may be funded by an entirely unconnected third party in certain circumstances, for example where the third party does not seek to exercise ‘excessive’ control over the course of the litigation, or where the third party does not make such a profit that the funded party may not benefit from a successful outcome. The law surrounding such funding arrangements is in its infancy and this is very much a developing area in which ethical considerations are likely to be of huge importance.
Free representation for those who could not otherwise afford it, an ancient ethical stalwart, is very much encouraged by the SRA and the Bar Council and has been given new impetus in recent years. The Bar Pro Bono Unit was established in 1996 and the charitable provision of legal services is now a key component of professionalism and corporate social responsibility for many solicitors’ firms, barristers’ chambers and government bodies.
1 Professional regulation
With these recent changes has come an increased focus on the professional regulation of lawyers. Although the courts retain inherent rights to regulate the conduct of those whose profession it is to appear before them, the day-to-day business of regulation has in recent times been undertaken by the governing bodies of lawyers – the Solicitors Regulation Authority (SRA) and the Bar Standards Board.
The autonomy of both the solicitors’ and the barristers’ professions to self-regulate has been recognised since the first committee was empowered to discipline solicitors under the Solicitors Act 1888, but it was severely curtailed in 1990 with the Courts and Legal Services Act and the setting up of the lord chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC). ACLEC provided scrutiny and comment where changes were made to professional rules, but it had only an advisory role.
The current regulatory framework was put in place following a report commissioned by the Department of Constitutional Affairs in July 2003. The report, entitled Competition and Regulation in the Legal Services Market concluded that the regulatory framework at that time was ‘outdated, inflexible, over-complex and insufficiently accountable or transparent’. As a result, Sir David Clementi was appointed by the secretary of state with broad terms of reference to consider reform. His report of the Review of the Regulatory Framework for Legal Services in England and Wales, published in December 2004, recommended a number of measures focused on promotion of the public and consumer interest.
Complaints of professional misconduct against solicitors are dealt with by adjudicators at the Legal Complaints Service of the SRA and, in more serious cases, by reference to the Solicitors Disciplinary Tribunal (SDT), which acts independently of the SRA. Appeals from decisions of the SDT are to the High Court. Complaints of professional misconduct against barristers are overseen by a complaints commissioner who filters complaints before referral to the Conduct Committee of the Bar Council. More serious complaints are referred by the Conduct Committee either to a summary procedure panel or a disciplinary tribunal. Appeals from the decisions of those bodies are to the ‘visitors’ (the High Court judges). The courts have generally deferred to a finding of misconduct by the profession’s disciplinary bodies and have also been reluctant to interfere in the levels of penalties on the basis that the representatives of the profession itself are the best judges of misconduct and its seriousness. Dishonesty is regarded as the most serious lapse in professional standards, and the usual penalty is striking off the roll of solicitors or disbarment.
A passage from the judgment of Lord Bingham MR in Bolton v The Law Society  EWCA Civ 32 gives a flavour of the considerations which will be taken into account where a solicitor (or barrister) faces a disciplinary tribunal: ‘Because orders [of disciplinary tribunals] are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely to be, so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price'.
The Courts and Legal Services Act 1990 also established the office of the Legal Services Ombudsman which is charged with ensuring that the professional bodies for both parts of the modern profession conduct fair, thorough and efficient investigations of complaints from the public about their members. The ombudsman produces a public report in response to a complaint, and although the ombudsman’s recommendations cannot be enforced, he can publicise any failure to comply with his orders. Perhaps unsurprisingly, given the history of complaints about lawyers set out above, the most common of all complaints received by the ombudsman relates to lawyers’ fees.
The globalisation of legal services has brought with it the need to investigate whether today’s huge corporate law firms can continue to be regulated under a ‘one-size-fits-all’ approach. In 2009 the Hunt and Smedley reviews have confirmed the need for change. Essentially, the existing regulatory regime cannot fully accommodate the needs of the corporate firms, including addressing the global nature of their work and recognising the particular types of clients which employ their services. The interesting question has also been posed whether the same ethical standards should apply when a lawyer acts for a vulnerable client as compared with a large well-run corporate client, which will often employ its own in-house lawyers. One of the more interesting aspects of the changes in regulation which will be occasioned by the differentiation of corporate law firms and their clients will be the extent to which it remains possible to apply time honoured notions of legal ethics to lawyers and firms at opposite ends of a very wide spectrum.
1 Future ethical challenges
The Statute of Westminster of 1275 introduced the entitlement of parties in litigation to recover costs. With the coming into force of the new Civil Procedure Rules the courts have been encouraged to adopt a flexible approach to awarding costs in litigation.This movement was further developed by the Access to Justice Act 1999 which permitted, for the first time in England and Wales, the recovery of success fees and premiums paid for after the event insurance policies.
However, the new rules have become extremely complex and this area remains an ethical minefield. A complex fee system can lead to substantial satellite litigation but, on the other hand, a sophisticated fee recovery regime compensates the successful party, allows those without means to litigate, deters vexatious, frivolous and other unmeritorious litigation, reduces delay and misconduct in proceedings and encourages settlement. The contrasting position in the US, where provision of legal services on a contingency fee basis is common, has been blamed for an explosion in the level of litigation and for defensive practices by manufacturers and service providers. However, many English lawyers believe that it is only a matter of time before contingency fee arrangements are made lawful in UK litigation.
1.2 Money laundering
Compliance with anti money laundering legislation is regarded by the Law Society as one of the greatest challenges for solicitors today. During the past 10 years, the issue has been addressed in legislation at both national and European levels, with several different statutes imposing obligations affecting lawyers. These changes mark a necessary exception to the solicitor’s ethical obligation of client confidentiality.
1.3 Ethics training
Legal ethics have historically been neglected in the education of lawyers. Indeed, the amount of time which is spent on the teaching of legal ethics in the majority of institutions in England is minimal. It is also interesting to note that the teaching of legal ethics and professional responsibility in the US only became a required course in 1974 following revelations about the involvement of lawyers in the Watergate scandal. In the UK it is likely that there will be an increased focus on the importance of ethics training at university level and beyond.
1.4 Equal opportunities
The issue of equal opportunities among solicitors, barristers and the judiciary also remains an ethical issue, with allegations of sexism, racism and other forms of discrimination continuing to be heard in some parts of the profession. The Lord Chancellor’s Department and the Bar Council commissioned a report in 1992 which found substantial evidence of unequal treatment at all levels of the profession in respect of gender, and it is a matter of fact that ethnic minorities are not proportionally represented in certain parts of the profession. Clearly there is much work to be done by the legal community before inequality of opportunities for lawyers can eventually be consigned to the annals of history.
‘The one great principle of English law is to make business for itself’. The English legal profession has moved a long way from this public perception so vividly captured by Charles Dickens in Bleak House. However, until the late 20th century the pace of change has been slow.
The right to a fair trial, now enshrined in article 6 of the European Convention on Human Rights, includes the right to a trial conducted in accordance with the recognised principles of conduct of litigators and advocates. The parties to a dispute are entitled to rely on the lawyers – on all sides – conducting the proceedings according to recognised ethical principles. Although now embodied in professional codes and subject to continuous review and refinement, the basic principles of legal ethics have stood firm for many centuries. They have been in existence at least since medieval times and probably from time immemorial. They have stood the test of time. These fundamental principles of ethics for litigators and advocates guarantee a legal system operating in the public interest and providing a fair and just trial for all who come before the English courts.
Mark Humphries has 25 years’ experience of contentious legal practice. Until recently a litigation partner and head of advocacy at Linklaters in London, he is now the director of his own commercial disputes firm Mark Humphries Ltd. He is a past chairman of the Solicitors Association of Higher Court Advocates
Baker, The Legal Profession and the Common Law – Historical Essays (Hambledon & London 2003)
Baker, The Oxford History of the Laws of England, OUP 2003
Cranston, Legal Ethics and Professional Responsibility, OUP 1995
Drinker, Legal Ethics, Columbia University Press 1953
Du Cann, The Art of the Advocate
Helmholz, Ethical Standards for Advocates and Proctors in Theory and Practice
Hilbery, Duty and Art in Advocacy
Lemmings, Gentlemen and Barristers
Rose, Of Ambidexters and Daffidowndillies: Defamation of Lawyers, Legal Ethics and Professional Reputation
Rose, The Ambidextrous Lawyer: Conflict of Interest and the Medieval and Early Modern Legal Profession
Rose, The Legal Profession in Medieval England: A History of Regulation
Pannick, Advocates, OUP 1992
Phillips, Ethics of the Legal Profession – A New Order, Cavendish Publishing Limited, 2004
Prest, Canon Law and the Law of England
Prest, The Rise of the Barristers
Wilson, Lectures on Advocacy and Ethics in the High Court
- Law firms and bank finance
- My Legal Life: Jane Keir
- Indonesia: treasure islands
- My Legal Life: Mark Stephens CBE
- Competition law
- My Legal Life: Sherina Petit
- Advising small businesses
- Law centres: living on the edge
- My Legal Life: Richard Charlton
- Interview: Lisa Cameron
- Interview: Chris Grayling
- My Legal Life: Shami Chakrabarti
- Roundtable: immigration
- Russia’s legal sector
- My Legal Life: Monique Fauchon
- Interview: Elisabeth Jones
- E-learning and CPD
- My Legal Life: Sarah Webb
- Law firms and cloud computing
- My Legal Life: Mark Hynes
- Interview: Rupert Scrase
- Roundtable: Wales and devolution
- My Legal Life: Sir Geoffrey Bindman QC
- Interview: Freshfields’ Paul Bowden
- Career breaks: return journey
- My Legal Life: Mark Beer
- Army law: uniform instructions
- My Legal Life: Ted Greeno
- Jackson reforms: trials and tribulation
- Risk and Compliance conference
- Legal education: bespoke courses
- My Legal Life: John Spencer
- My Legal Life: Gerald Shamash