Legal sector regulation and lawyer ethics – no holds barred!

Regulatory Landscape

The first topic under discussion was whether the time had come for a complete overhaul of the Legal Services Act and the introduction of a single legal services regulator; this had become more relevant due to the investigation by the Legal Services Board (LSB) into the potential move of the members of the Chartered Institute of Legal Executives away from their current regulator, CILEx Regulation, to the Solicitors Regulation Authority (SRA).

In addition, we have seen the Council for Licensed Conveyancers trying to entice those regulated by other regulators to move within its regulatory regime; to add to the current regulatory mire the Bar Standards Board (BSB) and Bar Council have challenged the LSB saying it is extending its reach beyond where it should be.

Professor Mayson has been a long time advocate of regulatory change, and his 2020 report looking into legal services regulation made a number of key observations and recommendations, including the introduction of a single legal services regulator (https://stephenmayson.files.wordpress.com/2020/06/irlsr-final-report-final-1.pdf); one finding was ‘The current regulatory structure provides an incomplete and limited framework for legal services regulation that is not able in the near term and beyond to meet the demands and expectations placed on it.

If you would like a more in-depth insight into Professor Mayson’s work you can find further reports here -  https://stephenmayson.com/downloads/.

Lawyer ethics

There have a been a number of high profile inquiries involving lawyers over the past few years where their conduct has been called into question, and as a consequence regulators and representative bodies have increased their focus on ethical conduct, with one of the real concerns being lawyers prioritizing the best interests of their clients over the rule of law.

There have also been concerns over whether lawyers have been maintaining the public trust and confidence in the legal profession, and whether they have been acting independently, with honesty and integrity.

The public inquiry that is currently raising some real concerns over the conduct of lawyers is the one looking into the Post Office scandal, where 800 sub-postmasters were wrongly prosecuted for theft and false accounting, when the Post Office and its internal and external lawyers knew the issues were created by bugs in its own Horizon computer system. In one case a lawyer apparently told a sub-postmaster that they would ‘crush’ them if they pursued their defence that the fault lay with the Horizon system and not them!

Both the SRA and BSB are Core Participants in the above public inquiry and are very closely following what is said about the lawyers they regulate played in the scandal; specific focus will be cast on the lawyers in May/June this year, so we will then start to get an impression of what the regulators may be thinking.

A recent report published by the SRA looking at the role of in-house lawyers made some interesting observations, and could explain why some lawyers find themselves in difficulty; the survey involved 1,200 lawyers:

• A minority of in-house lawyers face ethical challenges in their roles
  
  
• 70% found that the biggest challenge was pressure being applied by their colleagues
  
  
• 10% said their regulatory obligations had been compromised to meet their organization’s priorities
  
  
• 10% said they did not have time to maintain their competence

It is well worth watching the full webinar, as it will provide you with a good insight into where legal regulation and lawyer ethics are likely to go in the years to come. Here are some comments from those who attended the webinar:

• Useful conversation about the current state of ethics in the profession, and the role of solicitors generally.
  
  
• Interesting and informative, good subject matter which is of interest/concern to many in the profession.
  
  
• It was interesting, topical and informative. It was also relevant to day-to-day practice and the importance of upholding professional standards in the face of demands from clients or colleagues for unethical conduct.