WHO ARE WE AS LAWYERS? THE GOOD, THE BAD OR THE UGLY?

WHO ARE WE AS LAWYERS? THE GOOD, THE BAD OR THE UGLY?

Earlier this year, at the City Century Conference, (for anyone who doesn’t know, City Century is a ‘multi-award winning solicitor apprenticeship initiative that identifies, recruits, educates, and develops the very best talent’) a panel of leading legal minds debated, in front of this audience of young people at the very beginning of their journey into the legal profession, what it means to be a lawyer; what are the ethical obligations involved? what have we learned from the past where being ethical was not always the first consideration - as in the Post Office scandal? how do we balance a responsibility towards clients with doing the right thing?

Big questions. The session was introduced by Patrick McCann (who appears more than once in this issue of CitySolicitor, maybe a nod to the man’s own impeccable ethical standards) who kicked off by addressing the audience of apprentices directly.

“I see you as newborns and I want you to stay pure and connected to your roots and your values as you progress through your careers - and that can be tricky and challenging. All of us need lots of guidance and advice about what we should and shouldn’t be doing as lawyers.”

Amongst other luminaries on the panel were Colin Passmore, the Chair of CLLS and Professor Richard Moorhead, who started off his working life as a solicitor but quickly moved into academia, researching lawyers. He has spent the last 15 years specifically focussing on ethics.

The debate was lively and definitely the failings in our profession to always do the right thing were highlighted by Professor Moorhead - but countered by the CLLS Chair whose lived experience as a Senior Partner of a major City law firm has led him to believe most lawyers come to the job with a genuineness in wanting to do good and deviances from this, whilst they obviously exist, are the exception not the rule.

The topics explored were so fascinating that CitySolicitor decided to follow up by interviewing both of these legal gurus so that their thoughts can be shared with the broader audience of our readership.

We most definitely found that this is a subject which, far from being as straightforward as one should expect, has more layers than an onion.

The temptation to say - as the senior lawyers did in the Post Office case - that we are so good we can get you out of any difficulty is a siren call to believe your own hype.

Richard is a Law Professor who has spent many years looking at the sorts of ethical problems and conflicts that are experienced whilst in practice, including ones which he lived and saw first hand whilst practicing as a solicitor himself. As Chair of the Young Solicitors Group, Richard had often counselled trainees and young lawyers.

“I would say the Post Office scandal has put the whole issue of ethics in the legal profession on people’s agendas. This scandal consists of many, many instances where lawyers did things wrong. It is not a single, isolated case. It includes both lawyers in private practice and in-house, both criminal and civil lawyers, junior lawyers and some very senior ones. The behaviours that are complained about range from complacence through to misconduct and, in certain cases, criminal misconduct which, undoubtedly, will be investigated. It is serious and widespread across a long period of time. It suggests something bigger is afoot beyond this particular scandal. The Post Office is, simply, one example of lawyers not behaving ethically. There are a number of other cases popping up pointing towards lawyers not always doing the right thing. There was recently a suggestion made in the Guardian in regard to the Noel Clarke libel trial that his lawyer had inappropriately threatened a witness. It is important to say though that this does not mean that solicitors go into work every day intending to do something devious or improper. Usually what happens is that they may get carried away with representing the client at the limits and don’t think about or don’t know what the limits are.”

A very interesting piece of work was done by the SRA recently; ‘A Thematic Review on Professional Obligations’, which interviewed a selection of solicitors about their knowledge on their obligations. Most solicitors proclaimed to clearly know these obligations but when they were tested they were found lacking - and this was even true of the senior compliance officers. This does mirror life. All drivers once passed a test proving their knowledge of the Highway Code and so we believe we are still aware of what we should and shouldn’t do - but, truthfully, would we pass the test today if we had to retake it or is that knowledge buried so deep it is, in essence, forgotten and replaced with complacency?

What can be done to rectify this in our profession?

“One issue is training and education. We have a very poor history of education around ethicsand this should include continuing competence. What is harder is getting it taken more seriously in practice because therein lies the basic problem. If it was regarded as more important and well enforced then it would be given the gravitas it deserves. Also culture within law firms and amongst individual law firms is a big problem - and that’s a difficult nut to crack. How do you change an attitude that believes it is more likely that it will be someone else who will get led astray? We all believe that while we are not saints, we are not sinners. But the truth is we are all both saints and sinners and we need to be more careful about the times when we can fall into traps. So when the 1 in 100 cases presents itself where we face a difficult dilemma without us realising it or knowing what to do, we are better prepared to deal with it.”

Richard says he always starts his class with new students by asking them why they have decided to enter the profession and there are three answers; the desire to do good, money and status and, lastly, the desire to do something that is difficult and requires a great deal of skill. These latter two can detract you from the first.

“The temptation to say - as the senior lawyers did in the Post Office case - that we are so good we can get you out of any difficulty is a siren call to believe your own hype.”

Another thing Richard says we need to consider is that even if we want to do the right thing, we might not necessarily know what that is particularly if everyone around us is behaving in a casual or thoughtless way when presented with problems. Good intentions are not enough in themselves.

Colin Passmore is the first to admit that he hasn't followed the detail of the Post Office scandal in such depth as Richard and others have and he is more than willing to accept that the final report is going to show some pretty appalling behaviour. Whilst he respects both Richard’s preeminence in the field of ethics and also his views generally, nonetheless in this particular instance, he believes that it is dangerous to extrapolate the Post Office evidence so as to conclude that there must some wider, almost systemic , issue within the profession with

the implication that there may be many more instances of unethical conduct, which are going unchecked and undiscovered.

“Where is the evidence that, beyond the Post Office scandal, solicitors are regularly engaging in efforts to deceive the court or to misuse privilege? You would expect Judges to be calling such behaviour out. And yes, where there is misconduct we know that the SRA takes appropriate action. But why is this now being presented as a profession-wide problem, with the result that all solicitors, good and bad, are getting tarred with the same brush? It has often been suggested, also, that London is fast becoming the money laundering capital of the world and that solicitors are thereby involved in enabling this. But, again I ask where is the case law to substantiate this? I am not saying it is nonexistent but if it is as rife as we are being led to believe, we would be reading about specific instances daily.”

Colin’s particular area of specialism is in the field of privilege - something he has written definitive text books about and he is considered the ultimate expert on the subject.

“Professor Moorhead and others have written a paper suggesting that privilege is regularly abused. I know more about privilege than most, and I can tell you, aside from the Post office inquiry, I struggle to think of a single recent case where somebody has been accused of abusing privilege. Yes, people make claims to privilege that are challenged and then not upheld by the Judges. But that is not abusing privilege. In any case, I think all of us who practice in the business and property courts are aware of and mindful of PD57 AD, which imposes an obligation on all lawyers to make sure that their client's claims to privilege are properly made.”

Where Colin does find himself in total agreement with Richard is that he believes we don’t spend enough time thinking about ethics generally as a profession.

“Solicitors, barristers and other legal professionals do not routinely undertake refresher courses on ethics. I think it's probably not as well appreciated as it should be that under the Legal Services Act, and as translated into the SRA principles and guidance, we have a duty to balance the interests of clients - which obviously are very important - against other obligations, such as the rule of law,with the result that the former should not always trump the latter. I think regular refresher courses on ethics should be a part of our ongoing training - in the same way that we have regular anti-money laundering training, data protection training, tax avoidance training and so forth.”

Colin says it is important that we do not assume that all legal professionals are all falling down when it comes to ethical standards and knowledge of ethics and whilst he would like to see more ongoing education and refresher courses, he says the last thing we need to see is a swathe of regulation around this.

“Solicitors, for the most part, are doing their best, sometimes in very difficult circumstances, to discharge their clients' interests, do the right thing in litigation, in getting transactions done and in keeping the economy going. But it cannot be the case that we are all falling down on ethics. I totally refute that. I've read the LSB consultation paper. I've looked at some of the evidence that they rely on. And yes, there are instances where, for example, NDAs are drawn up repeatedly on behalf of a particular client, I can see that that is wrong. So go after that solicitor if it's justified. But it doesn't mean to say every time you do an NDA, you're guilty of some unethical behaviour. As lawyers, our reputations are everything. None of us would set out to destroy them.”

How naive we can be to assume doing the right thing is a simple decision to make. It is a very complex area but, if we accept that most people enter the profession with the intention of doing good, then we can only hope they will take the necessary time to really consider every situation before acting - and, therefore, act ethically. Whether unethical behaviour within our profession is widespread or limited to rare incidents seems to be a matter we do not all agree upon but what goes undisputed by all is the need for better education and refresher courses on the subject which will keep this important matter totally front of mind.

“Solicitors, barristers and other legal professionals do not routinely undertake refresher courses on ethics. 

I think it's probably not as well appreciated as it should be that under the Legal Services Act, and as translated into the SRA principles and guidance, we have a duty to balance the interests of clients”