Doffing the judicial cap | Regulatory and Disciplinary Lawyers
Gideon Habel discusses ethical standards in the legal profession, call the team on 020 3780 0406.
Posted on 06 March 2020
In the normal course of things, these column inches are given over to consideration of knotty ethical issues confronting solicitors and firms, either in their day-to-day practices or more broadly. Given continued high rates of SRA enforcement activity against firms and solicitors of all stripes – not to mention the recent overhaul of the profession’s professional conduct rules with increased emphasis on personal and professional ethical standards – there have been (and remain) good reasons for focus on these sorts of practical issues.
More bad news than good?
That impression is compounded by the fact that there has been a definite uptick in recent years in “bad news” stories, particularly in relation to some sanctions imposed on solicitors and firms by the SRA and the SDT. In some cases, those stories are down to obviously unacceptable conduct that clearly has no place in the profession. In others, however, things are often less clear cut and it is the widespread lack of financial resource (particularly insurance cover) among firms and individuals to properly defend an SRA investigation or prosecution that ultimately leads to yet more negative coverage about solicitors and their work.
This month, however, rather than explore one of the plethora of further burning ethical issues facing the profession, I have decided to take a different tack and to celebrate, instead, the high ethical and professional standards already pervasive in the legal profession.
What follows, therefore, is a nod, shown through the prism of a single high profile case, to the many thousands of “good news” stories out there we would never expect to hear about of solicitors and lawyers more broadly conducting themselves to the highest ethical standards; of practitioners considering and weighing their professional conduct obligations to achieve the tightrope-walk of balancing duties to upholding the proper administration of justice, the interests of their clients and the reputation of the profession in a way familiar to thousands in their daily practice; all, often, in the most trying circumstances.
Goddard sees the good
The legal press recently carried coverage of judicial praise from the sitting judge in the trials to the legal teams who acted in a series of four separate criminal trials of serial rapist Reynhard Sinaga.
The trials, for which reporting restrictions have only recently been lifted, began in Summer 2018 with sentencing hearings concluding in January of this year. Sinaga was convicted of 136 counts of rape, eight counts of attempted rape, 14 counts of sexual assault and one count of assault by penetration against 48 victims and sentenced to 30 years in jail. His modus operandi, it seems, was to lure his victims to his flat in Manchester, drug them using drinks infused with the drug GHB (or similar) and then to use his mobile phone to record himself carrying out the sexual assaults, attempted rapes and rapes.
In sentencing, the judge in the case, HHJ Goddard QC, said she was “unaware” of any other case of sexual offending “of this scale or magnitude”. She recognised the work of the police and the Crown Prosecution Service on an investigation that “involved hundreds of hours of viewing footage of a most unpleasant nature and the painstaking tracing of the victims”. She then moved on to “thank all counsel and the legal teams on both sides for their executive assistance throughout”, specifically thanking “the defence case worker who has assiduously attended to her duties in representing the defendant throughout.”
Just doing the job
It is perhaps this last judicial ‘tip of the cap’ that is of greatest significance when we consider the ethical standards we expect of ourselves and our solicitor colleagues. In the same sentencing hearing, Sinaga’s defence was described by HHJ Goddard QC, in sentencing, as “feeble”. According to the judge, he had "persisted in [...] denials of guilt in spite of the overwhelming nature of the evidence [...] and the previous jury verdicts."
To those unfamiliar with the role of a criminal defendant’s lawyers in such proceedings, such a description might be interpreted as suggesting it was not proper for the lawyers to put it to the court. As litigators will be acutely aware, however, that is far from the case: it is not the lawyer’s role to determine the content of a client’s defence; it is to present a client’s case to the tribunal on instructions and within the strict bounds of professional conduct obligations, including ensuring the client is properly advised as to the prospects of such a defence succeeding, notwithstanding the weakness of the evidence relied on by the client.
This is, therefore, an exemplar which does no more than show the legal system working as it should do, with defence solicitors and counsel properly, robustly and independently presenting their client’s instructed case to the court, albeit apparently in the face of evidence, and allowing the jury to reach its decision based on all the evidence and any relevant directions from the judge.
Recognising the recognition
Without in any way wishing to trivialise Sinaga’s crimes – less still the terrible suffering of his victims – it is likely that, for many criminal practitioners out there, the essential issues arising in this sort of case will feel unremarkable, perhaps even run of the mill. In my view, however, the trials, with their deeply disturbing facts, evidence and magnitude of offending, offer a neat distillation and snapshot of the pervasiveness of high ethical and professional standards shown by lawyers when acting in such an emotionally distressing and disturbing series of trials dealing with multiple allegations – and victims – of violent sexual offending. This is something that we, as a profession, should celebrate.
It is right to note that some victims’ charities have criticised comments made by Sinaga’s counsel in submissions on sentence. The criticism relates, in particular, to the suggestion made on behalf of the defendant that the offences were not violent, apparently by dint of the fact that Sinaga’s victims were unconscious at the time the sexual assaults took place. This article in no way seeks to deny the validity of those criticisms. The fact that these sorts of issues have arisen only goes to underline, however, the extreme sensitivity of the circumstances the legal teams found themselves operating in and, therefore, the significance of the challenge of maintaining the highest ethical standards in their work.
In times in which the most recent IPSO Mori Veracity Index that included lawyers (in 2017) suggested that only 54% could be trusted to tell the truth, we should take time to recognise that our own experience at work very often tells us a different story about the character and ethical standards of those with whom we share the privilege of calling ourselves solicitors.
A version of this article was first published in the February 2020 edition of the Solicitor’s Journal (Volume 163 No.2).