The Legal Services Board has been consulting on proposals for new regulatory measures to strengthen ethical standards in the legal sector. It seeks ‘to initiate a significant shift in how lawyers’ ethics are taught, overseen and supported in workplaces’.
This may be a commendable aspiration. It also feels like putting the cart before the horse. Solicitors today are practising law in a more febrile and uncertain environment than at any time I can remember. The LSB focuses on the professional principles described in section 3 of the Legal Services Act 2007, but what most urgently needs attention are the regulatory objectives contained in section 1 of that act. Maybe this is something that sits more naturally in the wheelhouse of the Solicitors Regulation Authority. If so (ideally with the encouragement of the Law Society and individual lawyers), it should be looking to initiate a similar conversation with the profession which, as a minimum, should be addressing the following.
How are we to uphold the constitutional principle of the rule of law when it is under attack from the governments of jurisdictions in which we, or colleagues of ours, practise?
This is not to suggest the egregious behaviour of the current US regime, or indeed recent executive practice in the UK, should absolve us of this duty. Rather, it behoves the SRA to be clear that solicitors are expected to honour the principle of the rule of law above and beyond political or commercial expediency. In doing so, it will make clear this is not a matter for individuals or firms to equivocate over. There is also clearly a role for the Law Society to get behind this stance, making it easier for all to do the right thing, rather than weighing up conflicting motivations and being picked off one by one by those out to undermine the principle.
It is the rule of law which provides real cause for the special pleading we like to attach to our profession, as part of the social fabric and infrastructure underpinning our society. We cannot switch it on and off at our convenience, and must be united and resolute in its defence.
How are we to act in the best interests of each client in a world of such heightened interdependence?
This is a relatively new and knotty issue. While our interdependence with others and the rest of the natural world is long established, it is globalisation and the Anthropocene which mean that the consequences of clients’ actions may not only have negative impacts for other clients of ours (and ourselves) but, in due course, adversely affect the client performing those activities itself. Insurance companies investing in high-emitting projects or the destruction of ecosystems, which will increase the prospect of climate heating making insurance unprofitable or unaffordable, comes to mind.
It feels like we are in a transitional phase between a perspective where it was felt that the cumulative effect of doing good by some clients would mean good for all, and a more systemic analysis recognising that pushing risk on to those with the weakest bargaining position is not the best way to manage risk at a societal level and alternative approaches may deliver greater overall benefit.
Rather than each client having to be ‘lawyered up’ at all times, might it be possible for one lawyer to advise multiple clients where they agree they are seeking to achieve common ends? Or that clients appoint their advisers on the basis they work together to achieve a balanced outcome, prioritising a relational over transactional approach?
As largely virgin territory, such practices will need to be approached with caution. Transparency will be paramount, but this feels more constructive than insisting on old practices regardless of their fitness for the world we are moving into.
How are we to uphold the proper administration of justice when only a small minority of the population has access to legal services?
This is not a new situation, of course, but one that has been getting steadily worse for decades as access to legal aid has dwindled dramatically. The issue here is less how this might be addressed by individual lawyers than how it may be made clear that access to justice and the right to representation are principles that are relevant to specific circumstances (most obviously to enable criminal trials to proceed effectively and fairly). They are not credible excuses for advising clients where it is evident that the activities relating to the advice being sought will lead to material and foreseeable harm to many third parties (even if the precise identity of those third parties cannot be established at the time the advice is given). To do so undermines another key principle, that of upholding public trust and confidence in the solicitors’ profession.
How are we to interpret what is meant by independence, integrity and honesty as principles to uphold when acting in such volatile, uncertain, complex and ambiguous times?
The examples offered in previous SRA communications on this issue feel out of date compared to the challenges we face. It will be hard to be definitive about these issues but extending the examples of the sorts of issues that may arise would be helpful. What this amounts to, in part, may be an acknowledgement that the solicitor does not necessarily have all the answers in such tempestuous times, but may have a range of solutions to help their clients find the right adaptive response to the challenges they are confronting.
Once the profession has engaged meaningfully with these questions it will be important to consider the ethical application of them. The danger we must avoid is to imagine by responding to the ‘how’ proposed by the LSB, we do not also need to address the ‘what’ and the ‘why’ of our enduring, yet evolving, professional duties.
David Hunter is senior counsel at Bates Wells, London. He writes here in a personal capacity
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