'Legality illusions': An interview with Richard Moorhead

It is a rather bracing read, I reflect. ‘Deep-seated traditions, psychological frailties, the complacency and aggression of well-paid lawyers, and the pragmatism, cynicism and hubris of organisations [combine] to pollute decision-making and weaken the rule of law. Be it through awful orthodoxies or legality illusions… a lawyer’s naturally uncomfortable relationship with truth and justice can become improper or even criminal.’ 

Authors commonly use the preface page of a book for a few ‘thank yous’ and to express the hope that readers will enjoy it. But in Frail Professionalism?, published by Cambridge University Press later this year, professor Richard Moorhead OBE – in person genial, thoughtful and good-natured – gets straight into the weeds of the concerns he has for the legal sector. 

Ethics, he says, is a ‘Cinderella course’ in law schools. Legal regulators need to be more ‘lucid’ in their perception of the public interest. And integrity must be widely understood to mean ‘more than mere honesty’. 

When lawyers fall short of high ethical standards, the consequences are devastating. The case made in Frail Professionalism? rests on the role of lawyers and the law in the misuse of non-disclosure agreements (NDAs), strategic litigation against public participation (SLAPPs), the banking crisis and the Post Office scandal. The latter is (rightly) described as ‘an extraordinary saga spanning more than 20 years that ruined thousands of lives’. 

None of these failures, he contends, is down to ‘a few bad apples’. If we want to act to stop such episodes recurring, we need to acknowledge that the system itself is at fault. 

A scandal unfolds

If lawyer ethics was a ‘Cinderella’ concern, the emerging scale of the Post Office Horizon scandal made sure Moorhead went to the ball. He had started a blog, Lawyer Watch – Research and Commentary on the Legal Professions, which became required reading as the role of lawyers and the law in thousands of wrongful prosecutions became painfully evident. 

‘One of the lawyers involved in the Bates case… sent me the judgment, Bates number six,’ he recalls. That was in 2020. 

‘You could see an awful lot of things that had gone wrong. Not of the scale that we know now, but nonetheless, you could see it was serious.’ More came out with the Hamilton Others v the Post Office Ltd decision in 2021, upon which it became evident that ‘the scale of the problem [was] significantly worse and broader, and goes back significantly further and takes in a wider range of lawyers’. 

In cases brought by 555 subpostmasters there were, in all, six High Court judgments in Bates and Others v the Post Office Ltd. Crucially, they uncovered the previously unadmitted flaws and bugs in the Horizon software’s accounting functions. Hamilton, quashing the convictions of 39 subpostmasters, laid bare the disclosure failures that had concealed information on Horizon’s failings during private prosecutions. 

The challenge in even beginning to expose the Horizon prosecutions as miscarriages of justice went beyond the culpability of lawyers and other actors. The justice system and fundamental policy assumptions concerning what is ‘best’ saw justice denied on what proved to be an industrial scale, Moorhead reflects. 

'It’s actually really quite odd to have a system which proclaims its own uselessness in the way that often leading judges do'

It is assumed that settlement is a better outcome than trial, and that mediation saves parties’ money and blushes – to the point that settlement is incentivised and failure to settle can result in sanctions. Similarly, a guilty plea in a criminal trial is incentivised. 

Into this context, Moorhead contends, lands ‘lawyering’ which rests on ‘aggressive legal offence’. This was manifest in the Post Office’s private prosecutions and steps taken to ‘recover’ funds. The lawyers went to extraordinary lengths in order to protect the client’s position, he says. 

Moorhead indicts a system where ‘troubling’ evidence is sanitised, mediation is ‘misused’ and where an overwhelmed court system becomes a justification for avoiding matters being tested in an open and transparent forum. 

Add to that a business client’s tendency to expect their positive, forward-looking mindset to be reflected in their chosen lawyer’s approach, and the results are ‘extraordinary in their scale and harms’, Moorhead writes. The results are ‘complacency and an ideology of lawyering that makes ethical failure likely, and cover-ups normal, through adversarial dislocation with truth’. 

Participation on anything approaching fair terms within the justice system is, he points out, incredibly expensive. Justice that is seen to be done in disputes is contingent on parties that are both ‘fortunate’ and ‘over-resourced’. 

‘It’s actually really quite odd to have a system which proclaims its own uselessness in the way that often leading judges do,’ Moorhead tells me, ‘and yet schizophrenically claim it’s one of the best, or the best, justice system in the world.’ 

Inflection point 

Broadcast in January 2024, the ITV drama Mr Bates v The Post Office was pivotal. Public and political interest in the Horizon scandal exploded. Watching it, Moorhead recalls thinking: ‘Now this is going to be a big thing.’ The fact the inquiry was happening at the same time and would hear from key witnesses throughout 2024 sustained that public interest and outrage. 

Not all problems in the justice system, and not all episodes where lawyering falls short ethically, can rely on such attention. But Moorhead describes a wider legal world that is at a point of inflection when it comes to ethics. 

‘There has been growing political concern about the role of lawyers in enabling grand corruption by kleptocrats and oligarchs,’ he writes in Frail Professionalism?. ‘Putin’s invasion of Ukraine forced many law firms to rethink their business interests in Moscow and question whether there were wealthy clients for whom they will not act. This sort of client relationship, and the challenge to law firms representing businesses said to engage in the destruction of the environment, called into question lawyer claims to be simply promoting the rule of law through their representation.’ 

There has also been sustained interest in the alleged misuse of NDAs, with the legal profession facing both its own #MeToo moments, and scrutiny of the role of lawyers in drafting agreements that conceal sexual misconduct. The use of SLAPPs as ‘tactics of the wealthy and powerful when faced with investigative journalists, academics, and NGOs… have suggested further concerns about the abuse of law’. 

Moorhead believes ‘this is very much not just a Post Office problem’. He notes that the Infected Blood Inquiry, which contained little on lawyering, is a reminder that cover-ups are a broader cultural problem. Yet, he reminds us: ‘The evidence suggests that in the Post Office scandal the lawyers were not merely advising – they were often running the show.’ 

Lawyers, he points out, drove the view that prosecution was justified and, when challenged, that it was safe. Lawyers ‘stepped in to say it would be unwise to investigate Horizon independently’. Lawyers were ‘crucially responsible for suppressing adverse evidence within the Post Office, and shaping how it was understood internally’. Lawyers ‘came up with the tactics in Bates’. 

And, he continues, lawyers ‘played an important role in helping [Post Office Ltd] with its lines to take when challenged by the press and Parliament’. Early drivers for these positions may have come from the business, he acknowledges, but adds: ‘I would say legal led most, if not all, of the time’.

The big question is whether this ‘moment’ can be used for something other than to sully the reputation of lawyers and the justice system. 

'There has been growing political concern about the role of lawyers in enabling grand corruption by kleptocrats and oligarchs'

Lawyers for the Post Office, both private practice and in-house, erred when they aligned the interpretation of facts, law and ‘the design of strategy’ to the client’s preferences ‘maximally’. 

This extends to disclosure. ‘Evidence to the inquiry suggests that Post Office lawyers saw their goal as not disclosing harmful documents,’ Moorhead writes, ‘rather than properly considering whether such documents should be disclosed. Reasons were geared towards finding a basis for refusing disclosure’. 

Whether some lawyers’ ‘maximal’ approach put them in breach of the law and professional regulations is set to be tested, which in turn will be a test for both the law and regulators. ‘It’s clear that there will be criminal investigations,’ says Moorhead. ‘Just knowing the facts of the cases inside out, if there are to be criminal prosecutions, then… some of the lawyers are likely to be in the frame.’ And he predicts: ‘Quite a few lawyers will be professionally disciplined. And some of those will be struck off… Some will be suspended, others may be fined.’

Relying on regulatory enforcement and criminal sanctions, and possible amendments to the disclosure regime, is not enough, Moorhead argues; though done ‘perfectly’ enforcement can ‘significantly improve culture’. But it is ‘reactive, expensive, and vigorously resisted, especially by well-resourced lawyers and firms’. 

Undergraduate legal education needs attention, he stresses. Properly resourced legal ethics content is required whereby students are ‘taught to think critically and reflectively about lawyering’. 

Because regulatory investigation is both slow and invisible, ‘regulators could be more open, share better information, look for ways to spark more water-cooler debate,’ he writes, adding: ‘More robust enforcement might also drive an appetite for preventative training.’

Compliance officers for legal practice could be more keenly challenged to ‘foster an ethical culture’. He does not yet have a view on the likely efficacy of the SRA’s proposals on ethics training, but thinks regular reflection and focus on ethics should be a key, required competence. 

In courts, judges take too varied an approach to ethics and aggressions, which may stretch to ‘a fetish made of the red-bloodedness of commercial litigation’. Moorhead has high praise for Mr Justice Fraser, High Court judge in the six Bates and Others v Post Office Ltd cases from 2017-19. ‘It is a point that has been made to me repeatedly by senior lawyers. They tell me many High Court judges would not have stood up to the Post Office legal team as robustly as he did.’ 

Compared to large law firms, he points out, judges are poorly resourced. That enables the firms to establish the culture of litigation. But lawyers themselves need to be scrupulously mindful of the way in which their advice might be misused by the client. 

Compensation

What, I ask Moorhead, does he make of efforts at restitution for the subpostmasters? He was appointed three years ago as a member of the Horizon Compensation Advisory Board, established to advise ministers on the operation of the compensation scheme. 

Has compensation been too slow to materialise? ‘I think what we see in the news are the failures rather than the successes… It is important to say that. Very large numbers of people have been compensated. It is probably fair to say that the compensation schemes generally are more generous than the claimants would have got under normal legalistic approaches. There are some positives there. I do think it’s been too slow. I think that’s partly because of the design of the initial system.’ 

Some types of evidence have been time-consuming to assemble, he notes. There is ‘lots to do still… it’s sometimes portrayed as a terrible disaster. And whilst it has been slow, actually, there’s been quite a bit of stuff which is certainly more positive’. He points to this month’s announcement of a scheme for family members of victims who have died. ‘They would almost certainly have had their claims… brushed away by Post Office lawyers,’ he argues. 

The victims and indeed the legal profession must continue to pick up the pieces.