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The only way is ethics

Eleven years ago this September, I started my formal legal education.  That summer had seen the introduction of the Solicitors’ Code of Conduct 2007 (the “2007 Code”) and it was against the backdrop of those very detailed rules that my consciousness of my professional obligations came into being.
 
In the intervening period, I have given considerable thought to the way in which those working in the solicitors’ profession are expected to behave.  The title of this article will act as a clue as to where I have got to in my thinking, but precisely what is meant by legal ethics, why an ethical approach is important and what it means in practice, warrants unpacking, which is what we will do in this article.

What do we mean by “legal ethics”?

A simple dictionary definition of ethics tells us they are the “moral principles that govern a person's behaviour or the conducting of an activity”1
 
Legal rules, which can also be said to “govern a person's behaviour or the conducting of an activity”, overlap with but are distinct from ethics.  Whereas an ethical approach will be determined by an individual with reference to the circumstances, the law is the body of rules drawn up and enforced on individuals by the state.
 
The relationship between ethics and the legal rules in the context of the solicitors’ conduct is complicated, they’ve got history, and, looking to the future, their fates seem set to be intertwined forever.  In order to see a way forwards, we need to take a moment to look backwards, so that we can understand how things stand at present.

A history lesson

Over the past decade or so, there have been more changes in the legal services market than the profession had seen for many years before that.  The starting point for many of the recent changes is the Legal Services Act 2007 (the “Act”).  One of the requirements of the Act meant that the Law Society had to separate its regulatory and representative functions.  It did so by giving the regulatory role to the Solicitors Regulation Authority (“SRA”) and keeping the role of representing and promoting the interests of its members for itself.  
 
Keen to demonstrate its independence from the Law Society and what had gone before, the SRA produced the “2007 Code”, which aimed to stand as a comprehensive set of rules that would tell solicitors the answer to every regulatory problem they could expect to face.
 
Then, in October 2011, the SRA issued a new Handbook, which included a new Code of Conduct.  The SRA explained the aim of the Handbook was to set out “the standards and requirements we expect our regulated community to achieve and observe, for the benefit of the clients they serve and in the public interest” and that:
 
“Responsibility for meeting the requirements in the handbook and operating effective systems and processes lies with you.  In the SRA Code of Conduct (the Code) in particular, we have stripped out a lot of the detail of the previous Code to empower you to implement the right systems and controls for your clients and types of practice. You will have more flexibility in how you achieve the right outcomes for your clients, which will require greater judgement on your part.”2 
 
These explanations by the SRA prompt further questions: who does the SRA mean by ”you” and “the regulated community”, how should “the right outcomes” be achieved in the absence of a prescriptive rule and what is the SRA’s role in all of this anyway?  Let’s take these questions together.

Why is an ethical approach important?

The SRA regulates the majority of law firms in England and Wales and those working in them.  In practice it means solicitors and non-solicitors employed by a (non-exempt) law firm in England and Wales are expected to respond to regulatory and compliance obligations and behave in an appropriate fashion.  It also means that the SRA can use its supervisory, enforcement and disciplinary powers against any individual it regulates3,  to maximise the chances of the right behaviours being demonstrated.
 
One of the ways the SRA regulates behaviour is through the SRA Handbook, one of the core texts of which is the Code of Conduct.  Since 2011 the Code of Conduct has been built around 10 core Principles and divided into 15 chapters containing mandatory Outcomes and non-mandatory Indicative Behaviours.  In light of the reduction of prescriptive rules to direct our actions, when compared with the 2007 Code, we need an approach to overlay the principles.  The only appropriate approach we can reach for is an ethical one.  This is because of the importance of the issues at stake.  As individuals working in the solicitors’ profession, we hold information and knowledge for clients that we are trusted not to abuse or misapply.  If we cannot be trusted, the profession is undermined and the rule of law breaks down.
 
In June 2016, the SRA announced plans to cut down the current version of the Handbook with the aim of replacing “detailed and prescriptive requirements with a framework for competent and ethical practice.”4   In the context of even fewer rules, the need to engage an ethical approach to decide how to behave will be brought into greater focus.  The approach and rationale for our decisions will need to be robust, if they are to stand up to scrutiny.  The SRA is expected to issue a new Handbook from 2019 onwards5,  which will contain two Codes of Conduct – one for firms and another for regulated individuals.

What does an ethical approach mean in practice?

In practice, behaving ethically is about taking a step back and thinking “what is the right thing for me to do in this situation?”  “The right thing” may occur to you instinctively and you may have experience you can draw from to inform your thinking, but not all situations are clear-cut.  Engaging an ethical approach will help you to reason out the correct course of action in the circumstances.
 
In their book on “How to be an Ethical Solicitor”6,  Mena Ruparel and Richard Burnham summarise ethical behaviour as: “Know the right thing - Do the right thing - For the right reason”.  The mantra is designed to ensure competing considerations are balanced correctly and it guards against an easier or preferred path being prioritised over the right one.  Ruparel and Burnham advocate the following practical steps, to achieve ethical behaviour:
 
  1. Look at the Principles;
  2. Look at the Outcomes;
  3. Look at the Indicative Behaviours;
  4. Apply ethical reasoning to achieve “the right thing”.
 
The best way to understand this methodology is to see it in action.  The following scenario is adapted from one that appears in Ruparel and Burnham’s book;7  the book contains many other examples for the reader to consider, to hone their understanding of ethical scenarios and solutions.
 
 
Facts

A solicitor has two years’ Post-Qualified Experience.  They are told by a Partner to telephone a client to advise them (in a roundabout way) to find, sign and backdate a vital document.
 
It seems the Partner didn’t get the document signed at the right time, which will have an implication for the client’s case.  It is in the client’s best interests to sign the document.
 
Regulatory position

The solicitor must observe the following Principles and Outcomes when deciding how to act:
 
  • Principle 1: Uphold the rule of law and the proper administration of justice
  • Principle 2:  Act with integrity
  • Principle 3:  Do not allow your independence to be compromised
  • Principle 6:  Behave in a way that maintains the trust the public places in you and the provisions of legal services
  • Outcome (1.1)  You must treat your clients fairly
  • Outcome (1.16)  You must inform current clients if you discover any act or omission which could give rise to a claim by them against you
  • Outcome (11.1) You must not take unfair advantage of third parties in either your professional or personal capacity
 
What should the solicitor do?
 
  • Option A: Do what the Partner says and hope there is no regulatory fallout
  • Option B: Go over the Partner’s head and report the problem to a more senior person, in the hope they will broker a sensible resolution
  • Option C: Report the breach to the COLP at the firm, in the hope they will broker a sensible resolution
  • Option D:  Tell the client that they might have a claim against the firm due to the Partner’s error
  • Option E: Speak to the Partner about the ethical issues and discuss the difficult position the solicitor is in as a result of the Partner’s direction
 
Ethical issues

The solicitor is responsible for their decisions and actions.  The fact the solicitor has been directed by a more senior solicitor doesn’t override the former’s responsibilities.
 
Option A isn’t the right ethical approach because it is doing the wrong thing for the wrong reason – this would not balance the Principles and Outcomes correctly and would be done in order to protect the Partner/the firm.
 
Options B to E are all ethical options, as they could all lead to the client being informed about the Partner’s omission.
 
The ethical approach

Although it is in the client’s best interests to have the document signed, the solicitor wouldn’t be acting with integrity if they arrange for the documents to be falsified to achieve that end.  It could be said that by taking option D, the solicitor is acting in the best interests of the client in the most ethical way.  Being transparent about the issue and alerting the client to potential claims that can be made could be seen to be the most ethical solution.
 
  • The right thing to do – don’t arrange for the document to be signed;
  • Acting on that knowledge – options B, C, D or E;
  • For the right reason – to protect the client’s interests (not to cover up the Partner’s wrongdoing)
 
To help remember the practical steps, Ruparel and Burnham adapt a carpenters’ proverb “measure twice, cut once” to remind us to “think twice, act once”.  They suggest we should:
 
 
Think: about the Principles and the Code of Conduct Know the right thing
Think: about the ethical approach  
Act: Do the right thing
  For the right reason
 

Conclusion

Combining the rules with the diversity of ethical opinions, may well mean there is more than one response to any given ethical dilemma.  It is important to keep this in mind, as well as the fact that responsibility for regulatory compliance falls to each individual.
 
In the absence of prescriptive rules to answer every question about how to behave and in light of the fact that the next iteration of the SRA Handbook is set to be even lighter in this respect, we need a suitable approach to overlay the rules.  The position of trust those working in the legal profession hold in society, means the appropriate approach is an ethical one.
 
To help illustrate the reasons for and steps to achieving an ethical approach, here are my top ten tips:
 
  1. Regulated individuals and entities need to behave in a way that is consistent with the rules;
  2. To achieve compliance with the rules you need to be familiar with them.  Read the Principles and Outcomes (as a minimum) as often as you think you need to, so that they are at the forefront of your mind.  This will help you to spot potential issues in practice;
  3. Familiarise yourself with your firm’s policies and procedures, so that you understand what they mean for your work and, if you are not sure what they mean, check with the policyholder;
  4. If when you read one of your firm’s policies or procedures you can see it should be updated to address a situation you have faced, provide feedback to the policyholder, so that the document remains relevant and instructive;
  5. Consider whether to contact the SRA ethics helpline and/or the Law Society’s Practice Advice Service, to ask for guidance on the appropriate course of action;
  6. Document your thought process as to the correct ethical solution with reference to the Principles, Outcomes and any other relevant rules and keep the notes in the case matter for the relevant client(s);
  7. Consider the decision about how to act with colleagues, such as a Line Manager or Supervising Partner;
  8. If something doesn’t go to plan and a mistake is made, be open and accountable by reporting the problem to the right people in the firm;
  9. Know the identity of the compliance officers in your firm and how they would like you to raise issues and concerns with them;
  10. Last but not least, focus on maintaining an ethical approach, “Know the right thing - Do the right thing - For the right reason”, by thinking twice and acting once.
Emma Walker
4 October 2018

Bibliography

Calvert, T. (2015) Compliance and Ethics in Law Firms: A Guide for Legal Support Staff.  London, The Law Society.
 
Hopper QC, A. and Treverton-Jones QC, G. (2011) Outcomes-Focussed Regulation: A Practical Guide. London, The Law Society.
 
Hopper QC, A. and Treverton-Jones QC, G. (2016) The Solicitors Handbook 2017. London, The Law Society.
 
Ruparel, M. and Burnham, R. (2017) How to be an ethical solicitor: Putting the principles into practice.  Bath, Bath Publishing Limited.

Footnotes
1.  
English Oxford Living Dictionaries  Accessed 14 August 2018.
2.  SRA publication Outcomes-focused Regulation at a glance in Hopper QC, A. and Treverton-Jones QC, G. (2011) Outcomes-Focussed Regulation: A Practical Guide, p. 220.
3.  SRA website, Who we are  Accessed 14 August 2018.
4.  Law Society Gazette (2 June 2016) SRA unveils ‘shorter, sharper’ codes of conduct.  Accessed 14 August 2018.
5.  SRA website (14 June 2018) SRA announces detail of regulatory reforms.  Accessed 14 August 2018.
6.   Ruparel, M. and Burnham, R. (2017) How to be an ethical solicitor: Putting the principles into practice.  Bath, Bath Publishing Limited.
7.  Ruparel, M. and Burnham, R. (2017) How to be an ethical solicitor: Putting the principles into practice.  Bath, Bath Publishing Limited, pp. 65-67.

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