Are ethics and Codes of Conduct too often conflated? Mena Ruparel looks at the differences.
In practice, the issue of compliance can be confused with the issue of Ethics. I have picked up publications at the Law Society library that purport to be about legal ethics only to discover that they are wholly compliance focussed. Many legal ethics books look into great detail of the competing ethical theories and philosophies. It is understandably difficult for the busy practitioner to digest these tomes quickly.
It isn’t surprising that so many people mistake compliance for ethics as there is an inevitable crossover between the two areas. There are many issues that are governed solely by the individual solicitor’s ethics and not by rules contained within the Code of Conduct or Principles. Those are the areas that practitioners need to pay close attention to in the coming months and the focus of my recent book, How to be an ethical solicitor: putting the principles into practice.
When the SRA introduced the statement of solicitor competence in March 2015, it was no accident that section A sets out what is required from a solicitor in respect of Ethics, professionalism and judgement. These are foundational characteristics of being a legal professional, it is important that solicitors introduce ethics at the heart of their learning and development and overall competence. Solicitors are required to be able to recognise ethical issues and exercise effective judgement in addressing them (A1 (1)). They should also understand and apply the ethical concepts which govern their role and behaviour as a lawyer.
In any area of law, one can only maintain competence by undertaking a form of learning and development activity. For some, effective training may not require anything more than reading this article, for others, it will be more effective for them to attend a seminar or read a book. For all practitioners it is important to reflect on one’s decision making and learn from our mistakes. Ignoring this core competence area is not likely to satisfy the SRA that one’s ethical competence is at the correct level.
Members of the public and the profession will be surprised to note that the qualifying law degree does not require students to complete a mandatory ethics module. Although some Universities do teach ethics as an option within the law degree. The Legal Practice Course (LPC) includes legal ethics as a pervasive subject, but this is not taught in any great detail. The Bar Vocational course (BVC) has in the last 2 years introduced Ethics as a distinct subject.
The focus is generally more on compliance than ethics at the LPC stage. This means that it is possible for a person to qualify as a solicitor with only a basic understanding of what it means to practice law ethically, which is what is required in the statement of solicitor competence. A survey carried in 2016 showed that 25% of those people who responded had never taken any form of ethics training. Many practitioners take the view that they don’t need any ethics training, those practitioners many fall foul of the SRA if their training records were ever audited. That is, if they don’t fall foul of the Solicitors Disciplinary Tribunal (SDT) first.
Following recent seminars that I have delivered on ethical decision making, delegates have told me that for weeks afterwards; they have been more aware of the daily ethical decisions they make both in and out of practice. Discussing the ethical dimensions of practice makes us acutely aware of them, this mindful practice can only enhance the value we offer to our clients and make us better professionals.
A question of trust – regulatory objectives
The SRA started to place a great deal of emphasis on the issue of ethics in 2016 as they ran a campaign called “A Question of trust”. In that campaign, they canvassed thousands of views from solicitors and the public about the values and standards expected from legal professionals. The findings make interesting reading, the SRA have stated their intention to use those findings to “refine our approach to how we judge the seriousness of offences and what action we take.” The issue of ethics is going to continue to be central to the new regulatory structure, which is likely to be introduced in 2018.
The SRA started to move away from a system of rules-based regulation in 2007 when it moved towards Outcomes Focused Regulation (OFR). From an ethical viewpoint, rules-based regulation can produce ethically perverse results. Strict adherence to a system of rules requires numerous rules to be drafted and interpreted simply, as we note in the book; “the more corrupt the state, the more numerous the laws.” (Tacitus)
It isn’t possible to draft a rule to regulate every type of behaviour, so the future of legal regulation moves further into the more flexible OFR regime. This regime places the mandatory Principles at the heart of regulation, albeit a slightly different version to the current Principles. Regulation concentrates on the right outcomes for the client and not the regulation of specific actions by the solicitor. Those solicitors who qualified before 2007 when OFR was introduced are likely to be more comfortable with the system of rules-based regulation than OFR as that is the regime that they qualified into. All solicitors now need to think more about what they are trying to achieve for their clients in order to meet the mandatory outcomes, this leaves a lot of space to think about individual ethical considerations.
The current Code of Conduct sets out that the Principles should always be used as a “starting point when faced with an ethical dilemma.” As can be seen above, many practitioners will have no notion of how to progress ethical thinking beyond this, either due to lack of training or the mistaken belief that they somehow know the right answer without the need for any analysis of the possible alternative options.
Principle 2 states that every solicitor should act with integrity, this calls for solicitors either to have intrinsically virtuous characters or to develop the ability to make thoughtful, ethical decisions. The published decisions of the Solicitors Disciplinary Tribunal demonstrate that on occasion virtuous solicitors act without integrity and are rightly disciplined for those transgressions. It is simplistic to believe that those solicitors who are sanctioned are ‘bad’, they are often ‘good’ people who have made bad decisions.
SRA warning notice
On 24th August 2017, the SRA issued a warning notice which highlights an area in which solicitors are not making appropriate ethical decisions. The SRA will have regard to the warning notice when exercising their regulatory functions, it behoves all solicitors and those who work in an SRA regulated form to give serious consideration to its content.
The notice concerns the way in which solicitors communicate with other people by email and via social media both inside and outside of practice.
As we note in the book, Social media portals are regularly used by firms and those who work for law firms in both professional and personal capacities. Due to the informal and fast paced way in which they are set up, it is easy for regulated people to get carried away with online discussions or comments which can fall foul of the regulator. This is more likely to happen on social media platforms as these are virtual, accessed in the solicitor’s own time and space. It can be easy to forget that solicitor’s are regulated equally at 11pm online and at 3pm in the office or at court.
The SRA cites examples of such behaviour:
- using language which is intended to shock or threaten
- making offensive or abusive comments to another firm or about that firm its client, or to individuals who are unrepresented
Importantly, these are behaviours that are not regulated by specific rules, they are OFR areas which require the solicitor to contemplate the Principles and their own ethics.
- A solicitor is required to act with integrity, this Principle can be interpreted in many ways and requires careful consideration which can be missing in the social media sphere.
- Principle 6, the requirement to behave in such a way that you maintain the trust that the public places in the provision of legal services and
- Principle 1, to uphold the rule of law and the proper administration of justice. These Principles are all ethics based rather than rules based.
By way of example, in August 2017 the SDT dealt with a case where a Muslim solicitor publically communicated anti-Semitic and/or offensive posts from his personal Facebook account. The solicitor had been admitted for 10 years before the incidents occurred, qualifying under the 2005 rules-based regulatory system.
A member of the public had complained to the SRA about the comment and had warned the solicitor that a report would be made. Having received a warning, the solicitor did not withdraw the comment or apologise, which perhaps on a proper reflection of what he had written he should have done. Instead, he replied, “Don’t read my comments if you don’t like them.”
The following year he posted further offensive posts and the SRA received complaints about them. Anyone reading those posts would have been able to see that the person posting them was a senior solicitor and the name of the firm was visible. When the SRA wrote to the solicitor he agreed that upon reflection the posts were offensive and he apologised for them. He did not agree that the posts were anti-Semitic.
The solicitor complained that the comments were made in his personal capacity and not in connection with his role as a solicitor. Principles 2 and 6 apply to a solicitor’s behaviour whether in or out of practice. The matter was referred to the SDT and the solicitor gave evidence that it had not crossed his mind that as a solicitor he should not be writing those comments. This is where some training in ethical thinking could have given the solicitor pause for thought. Before he posted any comments, offensive or otherwise, he should have analysed the impact on the general public, the possibility that the regulator could be involved and the impact on his career.
The solicitor gave evidence that he had not thought whether any comments he made would be publicly available or the implications of that. He was also of the view that he had the right to freedom of speech, even if some people were offended by his views. The Tribunal stated that “freedom of speech is not an unqualified right”.
As professionals, solicitors are held to a higher standard than others and he should have taken that into account at the time. The Tribunal did not seek to restrict anyone’s right to free speech but the solicitor had stepped over the line by advocating violence and by doing so had acted without integrity. “For the Respondent, a solicitor, to communicate deeply unattractive views publicly (whatever his private thoughts) demonstrated a clear lack of integrity. It was incumbent to keep his extreme views to himself rather than express them in a public forum”.
The solicitor was fined £25,000 and suspended from practice as a solicitor for 12 months. He was also ordered to pay the costs of the application in the sum of £9,595.
The warning notice followed the release of this decision of the SDT and clarifies the views of the SRA about these types of communications and internal email communications.
Ethical thinking can be instilled by using examples such as the case above. In my book we use many real life SDT examples to see where other solicitors have made mistakes and what can be learned from them. The SRA have ethics training materials on their website that an be download for in house purposes. The Law Society have an ethics portal that is accessible on their practice development centre. Ignore the issue of ethics training at your peril.
Mena Ruparel is both a practising solicitor and an experienced legal trainer with a mission to maintain the professional standards of the legal profession for the benefit of both the public and practitioners. Insights gathered from years at the front line have been distilled in this book.