Do lawyers and their regulators know what drives positive and negative conduct choices? Professor Richard Moorhead talks in urgent terms about the need to improve ethical conduct in the legal profession. For evidence of ‘frail professionalism’, he references the industrial-scale miscarriages of justice arising from the Post Office’s private prosecutions of subpostmasters.
Moorhead also points to the misuse of non-disclosure agreements drafted by lawyers to conceal sexual assaults. SLAPPs are used to silence criticism, allowing the rich and powerful to curate their own image and give scrutiny a swerve. There is the abrupt about-turn law firms had to do when wars started and clients become scrutinised and sanctioned – leading to questions about the degree to which lawyering ‘enabled’, for example, money laundering. And there are identifiable roles in advising on projects that contribute to climate change.
We regularly and rightly celebrate law’s virtues and achievements. Front of mind for me are the days I have spent at law centres, where staff stand between their clients and destitution. There are the lawyers who worked to hold the Post Office to account for its conduct. Solicitors who represent families at the SEND Tribunal are committed, principled and hugely overworked. There is the local firm that has handled conveyancing and probate for my family, and drafted my will.
All that is true. But then so are the instances Moorhead suggests are a source of shame. When well-funded lawyers interpret client service to include defending those clients’ interests at all costs, their enthusiasm can lead to an ‘adversarial dislocation with truth’, he contends. That goes further than a ‘few bad apples’, he suggests. It is a culture in which ethical conduct is a poor finisher.
Large law firms, Moorhead says, have vastly superior resources to the judiciary who are expected to superintend the conduct of cases in court, and have used those resources to shape litigation culture to the detriment of justice.
The SRA is consulting on proposals to increase career-long ethics training for solicitors. The challenge for the regulator is to deliver something more than a costly new compliance requirement to be ticked off and then forgotten.
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