Legal education, training and regulation will have to be strengthened to stem a fall in ethical standards, the Legal Services Board proposed today. The oversight regulator wants to initiate a ‘significant shift’ in how lawyers’ ethics are taught, overseen and supported in workplaces.
This fresh approach is on the back of a growing body of ‘substantial evidence’ that lawyers are unaware of their ethical requirements or even actively ignoring them.
The oversight regulator says it has seen lawyers misleading courts, using strategic lawsuits against public participation (SLAPPs) to bully opponents and silencing victims of harassment with non-disclosure agreements.
Issuing a consultation today, the LSB wants frontline regulators to make sure that ethics are at the core of how lawyers behave and act throughout their careers – with action taken when individuals fall short.
Craig Westwood, chief executive of the LSB, said: ‘The administration of justice and the rule of law rely on lawyers maintaining the highest ethical standards. Our evidence shows there are gaps in understanding and support that need to be addressed. Regulators have a role to play in making sure that lawyers have the knowledge, skills and support from their leaders and workplaces to make sound ethical decisions throughout their careers.’
The consultation states that lawyers’ failings in their ethical duties have led to ‘severe, intentional and even criminal conduct’.
As well as the use of SLAPPS, the LSB said it has gathered evidence of case-handling strategies such as misleading courts, making false claims, distorting evidence and misrepresenting facts. This has wasted judicial resources and exploited power imbalances where the case includes litigants in person.
Lawyers have faced challenges in maintaining independence against commercial and client interests, especially for in-house counsel. The LSB believes this can lead to exploitation of legal uncertainty for commercial interests and may result in ‘mutually assured irresponsibility’ where neither lawyer nor client is accountable for advice or resulting action. This was most apparent in the Post Office scandal.
The LSB has even noted ‘ethical apathy’, citing an academic paper based on interviews with 57 City lawyers who would tend to place the interests of clients above all other professional ethical considerations.
The oversight regulator sets out five outcomes it wants to achieve through the consultation, including lawyers having the right knowledge and skills on professional ethical duties at the point of qualification and throughout their career. Lawyers must also be supported and empowered to uphold ethics when they are challenged.
Regulators must have in place a framework of rules for maintaining ethical standards, must properly supervise whether lawyers are meeting ethical expectations and must regularly monitor the impact of their measures.
The consultation closes on 29 May.
