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The public expects lawyers to behave impeccably

To what extent are the ethical judgements we make in legal compliance based on our own individual moral codes?

By Leah Darbyshire, Community Manager, Legal Compliance Association

The Solicitors Regulation Authority (SRA) took the moral temperature of the legal profession at its 3rd annual COLP COFA conference today.

Starting out from a stated perspective of respect for the professions, including the legal one, SRA Chief Executive, Paul Philip, said that it was a question of solicitors working on their public ‘brand’.

Delegates, exceeding 500 in number, and representing law firms of varying sizes from around the country, as COLPs and COFAs, were asked to participate in a live polling session, voting on the level of concern that they would apply to a number of different scenarios around professional conduct.

No single view emerged amongst the audience of legal compliance professionals as to what constitutes a disciplinary offence and what doesn’t. Crispin Passmore, Executive Director, leading the session, said that this polarisation was even apparent when the SRA conducted the same exercise in smaller groups.

What the public thinks

However, things became more interesting, during a later session, when the voting statistics from this audience of legal professionals were compared directly with voting statistics the regulator had gained earlier when putting the same scenarios to the public.

The public appeared to come down a lot more heavily on solicitors who had committed crimes or behaved inappropriately in their private lives, than did their legal colleagues. Passmore described some of the comments from the public session, where attendees had referred to the professional status of lawyers and the levels of ethical behaviour that they, as members of the public anyway, deemed should go alongside that.

Regulatory versus criminal sanctions

Some legal compliance professionals, however, asked why should the regulator be interested in the criminal behaviour of lawyers when that is being dealt with by the criminal courts anyway? Shouldn’t the regulator just wait for the decision of the criminal courts? Or should certain verdicts by the criminal courts trigger a certain disciplinary or regulatory response from the SRA?

The public were very lenient when it came to fare dodging, with 77% voting that it was of no concern to them if a solicitor had been found without a valid ticket on the tube, if the solicitor had subsequently paid the fine. The legal profession was less tolerant, with only 26% voting to ignore this behaviour.

On the other hand, lawyers were far more likely than lay people to consider the misuse of monies placed in a client account to be a serious issue.

Both the legal compliance officers and the members of the public asked by the SRA were unable to agree in the case of a lawyer who consistently took weak immigration and asylum cases, with a 1 in 10 success rate. Some legal compliance officers considered he was just ‘doing it for the money’, while others acknowledged that asylum cases are hard to win and that asylum seekers need access to justice. They turned the questioning around on the reporting judge in the scenario, asking why he had thrown out 9 out of 10 cases.

What do corporate clients think?

One delegate pointed out a gap in the SRA’s research. While the regulator had asked legal compliance officers, the public and its own staff to respond with their ethical judgements on these scenarios, it had not asked any corporate clients or general counsel for their opinion on these professional conduct issues. Passmore welcomed the suggestion and said he would now seek to obtain this feedback from the in-house sector. That’s interesting, too, given that the ethics of in-house lawyers have recently been under review and that the SRA is widely expected to announce regulatory change directed towards in-house lawyers in April 2016.

Moral codes versus regulatory guidelines

One tweeter pointed out that there had not been any reference made to the Solicitor’s Handbook in the audience’s responses to the professional conduct scenarios, although, later, in two separate conference sessions, it was suggested by audience members that all of the scenarios described would constitute a material breach under the SRA’s own rules.

Passmore had said earlier that the Handbook, and supplementary guidance provided by the SRA, sought to prevent a situation in which a person’s own moral code might affect the action they would take.

Influencing factors

During his talk, Passmore described how our ethical judgements can be affected by a series of influencing factors. Research has shown that factors such as how hungry we are; how good a driver we think we are (relating to the particular scenarios in his session focused on drink driving and speeding) and even how people have voted on earlier scenarios can affect the severity or leniency of our judgements.

I noticed that the response by the legal compliance officers towards speeding, for example, was much more lenient than their response towards drink driving, although arguably both are illegal and both are driving offences, where the driver becomes out of control. This might be because members of that audience would be more inclined personally to speed than to drink drive; because they don’t agree with speed limits or simply because the speeding question was asked first.

Gut instinct versus business context

Admittedly, Passmore had asked us to vote quickly each time and based on gut instinct rather than considering potential mitigating factors but what I think the session showed is how much we all rely on our individual moral codes when we come to make such judgements, noting that these actually tend to be programmed or hard-wired into us by our upbringing, rather than by any training courses we might attend upon joining a firm. So how much of this then can a firm actually affect or change in its employees?

In one of the workshops held later during the day, a delegate suggested that the SRA should undertake the same polling exercise again but this time asking participants to put themselves in the seat of a COLP employed in a real law firm to see how their decisions might change once you add in the extra pressures of a real business environment.

Perhaps that is an idea for the next conference.

Moral shift

One thing that is for sure is that having taken the moral temperature, the SRA can’t just leave it there. Social mores change. One of the questions Passmore asked was about a lawyer who swore at his client. It could be argued that this behaviour would be viewed more leniently now than it would have been by a previous generation. Similarly, the use of soft drugs in this country is illegal but there are people campaigning currently to have the law changed. Maybe young entrants to the profession would treat a lawyer who had smoked cannabis more leniently than previous generations would, based on the fact that they disagree with the activity being illegal in the first place.

Or, perhaps lawyers should always stay on the right side of every law on all occasions, whatever the law is, in virtue of their occupation and the ‘rule of law’.

Passmore asked us whether a criminal advocate should be any more ‘clean’ than a partner in another practice area. For some, this didn’t shift their thinking. But for others, it did. How can you prosecute a criminal when you are guilty of criminal activity yourself? They asked. But the critical question is can you still lead the prosecution when you have been involved in any criminal activity at all, even if it was much less serious and nothing like on the scale of the criminal behaviour that you are prosecuting for?

The LCA does not take any particular view on this. What we do suspect is that lawyer ethics, inbuilt moral codes and how a legal services business deals with these, are going to form a critical part of the legal compliance debate over the coming months.

The SRA is also learning from the exercise. As well as incorporating the voting patterns into its forthcoming statement on professional standards, which will follow completion of its ‘A Question of Trust’ roadshows, it will also seek to ensure that its staff make more consistent decisions too. We are sure that legal compliance officers will welcome that.

To join the Legal Compliance Association and get access to regulatory updates as they happen; practical guidance and discussion forums, where you can benchmark your ethical judgements with your peers, complete our registration form. The cost is £25 per month per firm and you can sign up as many of your colleagues as you want.