A report published this week by the Legal Services Board raises an interesting question for all lawyers: what should be the balance between what we are told to do in detail by our regulator, and what is left to our own discretion within broad guidelines?
The SRA has been moving more and more in the direction of broad guidelines. The aim is to ensure that lawyers think about what they do before they do it, and do not just tick boxes. It sounds wonderful, but does not reflect how the rules play out in at least parts of the profession.
Within solo and small practices, the burden may now be squarely on individual practitioners. But I was present in a recent webinar where a City lawyer explained that in large firms, where a sizeable chunk of the profession works (over 20% work in the City), individual solicitors tend to rely on the firm’s compliance department or general counsel for a ruling on how they should behave in a particular circumstance, so removing to a large extent personal thought and responsibility from their ethical behaviour.
Within large firms, that raises the question as to whether individuals have become too dependent on the firm’s systems and controls, so that they no longer have the capacity to work out ethical issues for themselves. Given the broad and complex swathe of regulatory obligations, is it in any case realistic to expect lawyers to understand and be responsible for all of these obligations?
These are issues of profound consequence to the profession. For instance, does it matter if a City lawyer becomes over-dependent in relation to ethics questions if the compliance department is always correct in its determination and so the client is always protected? Is the aim of regulation to toughen up the lawyer or to protect the client? It is true that the lawyer might go on to a different form of practice without a large and sophisticated team which provides all the answers – but presumably at that stage, the lawyer can take steps, in terms of reading and training, to be ready to take on the necessary responsibility again.
Into this philosophical landscape comes a report commissioned by the LSB on ‘International Approaches to Ongoing Competence’. As it says, it looks at how other jurisdictions train lawyers who are already in practice, drawing conclusions which might be pertinent for future regulation of ongoing competence in England and Wales.
The report tends to the personal responsibility end of the debate, favouring solutions which concentrate more on personal reflection of training needs and personal discussion with peers, rather than the more traditional methods of compulsory continuing legal education (CLE) with its cumbersome mechanism of points and declarations to the regulator, which are somewhat criticised – but it is a system which at least makes clear to lawyers what is expected of them.
It doesn’t matter which way the report tends, though, because both sides of the argument get a look in, and a regulator should be able to draw its own conclusions.
Again the question arises as to the purpose of regulation in CLE. Is it to toughen up the lawyer by ensuring personal responsibility for considering his or her own needs, or to protect the client? Is a lawyer the best judge after a period of personal reflection as to what training is needed? Or might a regulator, which sees the trend of complaints and overall weaknesses in the profession, be a better judge of how the public might be better protected, even at the risk of making the profession somewhat over-dependent in this respect?
For instance, after reflection, I might be very well able to arrange training on a topic in which I practise, but where I feel a bit shaky. But how does that work in relation to an area which I am barely aware exists at all, even though it touches on my work – for instance, the ins and outs of the technology that I use day-to-day? In a nutshell: is it logically possible for me to arrange training for myself on something of which I am unaware?
At present, our CLE system has no mandatory element. The regulator is able to shriek at us for our shortcomings, for instance in anti-money laundering practices, but has no levers to pull – indeed seems to want to pull no levers – to put that right through compulsory training, as if the aim is not client protection at all, but toughening us up like recruits on an SAS selection course.
As always, the proper answer (I believe) is that an appropriate mix of personal responsibility and regulatory mandate provides the best client protection. In the case of CLE, I think that means that the trend towards too much personal responsibility needs to be somewhat reversed.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society