I was excited speak at the Legal Compliance Collective discussion forum earlier this week on the topic Solicitors’ Ethics – Where Are We Going?
We’ve been wringing our hands over the last few years about ethics in the legal profession and whether we have a problem with them. My argument was – yes, we do, but perhaps not in the way we’ve been thinking.
So, where are we?
Ethics in the legal profession are, of course, nothing new. What is new is the focus on them at the moment, and the worry about whether we’ve lost our way.
This focus has been driven by newsworthy scandals, particularly those which have been brought to the awareness of the wider public. The Post Office Scandal is an important one. So too are the collapses of firms like Axiom Ince and SSB Law – firms where the collapse has been driven by inherently criminal behaviour (Axiom Ince) or, at the very least, extremely unethical practices which has caused significant loss to lay clients.
Earlier this year, the Legal Services Board, our oversight regulator, sat up and took notice. Their March consultation proposed more prescriptive requirements for the legal profession (not just solicitors), to show that a commitment to professional ethics is front and centre.
Some of the organisational responses focused the preoccupation with ethics purely in these more newsworthy events that show where they have failed.
The Law Society response rejected that there was a problem with ethics and noted that such events were not representative of the profession.
The Bar Standards denied that barristers had the same issue with ethics as perhaps others in the legal profession, pointing to their self-employed status and their willingness to challenge others.
On the other hand, there was a more constructive, nuanced response from the Association of Personal Injury Lawyers. This acknowledged that it can be difficult to know how to act ethically, particularly where you might be under some sort of pressure.
But do we really have a problem with ethics?
I said: yes, we do.
In fact, our problem with ethics is the fact that our thinking hasn’t evolved on it. The ethical framework hasn’t changed, but what has changed is the lens through which we’re looking at it.
It’s a similar conversation to the ones we’ve been happy to have over the last few years about workplace culture and environments, stress, bullying, sexual misconduct and even anti-money laundering: whilst the foundations haven’t really changed (there might have been a tweak here and there), we’re happy to acknowledge that our understanding and awareness of these topics has.
Those of us who’ve been around for a while can look back at behaviour we experienced or witnessed some years ago. It may not have been right then (but it was accepted): however, it definitely wouldn’t fly nowadays.
Black and white, or somewhere in the middle
We haven’t been able to do the same with solicitors’ ethics. The thinking seems to be that ethics are black and white, and stagnant. If you admit that ethics might be tricky (or even if that you might have acted unethically), then you are also at risk of admitting you are, at heart, a bad person.
This can’t be right, however, and we are doing everyone a disservice by following the party line. Just look at the numerous examples of stories we see in the legal press about solicitors or those working in solicitors firms being rebuked, fined, suspended or even struck off.
In many cases, of course, the conduct referred to would seem egregious: it is black and white. Something was inherently wrong with what that individual did.
But in many other cases, the line is much greyer. Many of us have seen several examples of behaviour being sanctioned that we’ve seen in real life. In many of those cases, it never would have occurred to the individual or indeed anyone around them that there was something unethical about their behaviour or practice. It was just what everyone did. For junior staff too, it was how they were trained.
This is put into perspective particularly by the case of Joel Woolf, who was suspended for misleading an elderly tenant. He sent multiple versions of a notice to quit. The judgement in the case was striking. It noted that Mr Woolf’s practice was something he regarded as “commonplace” but he agreed, with the benefit of hindsight, it was a “spoof”, “trick”, “ruse” and “sharp practice”.
Presumably, like many of us, Mr Woolf had been trained to do this or saw others doing this or something similar. It may never have occurred to him to question it, until disciplinary proceedings came a-calling.
Accepted but not acceptable
During the discussion, I shared several examples of things of such “accepted practices” which, with this benefit of hindsight, would actually be judged as unethical. Some of the scenarios discussed were:
- people trying to battle the administrative technicalities of submitting lasting powers of attorney
- tax or estate planning scenarios that involved a range of undated documents, ready to be drawn on if needed
- trainees accessing internal emails about seat allocations
- preparing attendance notes of meetings well after the fact in order to enable them to be billed
Many of these are the same or similar to cases we’ve seen in which individuals have been sanctioned. In some cases, such actions have put an end to their legal career.
Can we confidently say that everyone who does these sort of things are inherently bad people?
I don’t think we can. You’d be a cynic not to believe that most of the profession want to do the right thing. Many of them would be mortified, even horrified, that things they’ve done, were trained to do and probably have trained others to do, could be deemed unethical.
But once they sat down and thought about it, they can see where this comes from. It doesn’t mean that they want to do wrong, rather it means that they have never been encouraged to think of it in this way.
Change the conversation
In the past, inappropriate behaviour in the workplace was accepted, but never acceptable: now we actively call it out. We tell our staff members that they will be supported if they have concerns or raise complaints. We offer safe spaces for them to raise concerns. We have policies and deliver training on what is and is not acceptable. We signpost resources which can help them.
In the same way, we need to change the conversation around solicitors’ ethics. We need to acknowledge that we are now practising in a different world. We must move away from thinking that bad ethics are confined to a few bad apples and that these bad apples are rotten through and through. We must apply the same willingness to engage with ethics as we have with other topics: to discuss them, their complexities, and their evolution with openness and honesty.
As so often, the first principle must be your culture. Here, the constructive message is: doing something which might be seen as unethical does not necessarily make you a bad person and someone beyond redemption. Similarly, seeing a colleague who has done something unethical does not mean you should cancel them.
Rather, it’s an opportunity for all of us to engage in introspection, debate and learning from each other. Encourage your colleagues, and particularly your juniors, to speak up when they are not sure about something. Welcome them when they question practices and want to debate them from the perspective of ethics.
There is of course a question about how can we have these conversations safely – how can we open ourselves up to questioning, challenge and introspection without fearing the sword of the SRA or SDT hanging over us?
There’s an inherent tension here but maintaining the fictions that all is well, unless you’re morally reprehensible, doesn’t do the profession any favours. The first step must be to acknowledge the problem. This acknowledgment needs to come from the macro level (from the bodies who speak for us) as well as the micro level, within our individual firms.
Only if we begin to speak up, and confront this, can we move towards any sort of meaningful evolution.
