The Legal Services Board (LSB) have recently consulted on upholding professional ethics. The consultation identified several types of poor ethical conduct, including strategic lawsuits against public participation (SLAPPs), the misuse of non-disclosure agreements (NDAs) and problems of independence. As part of its strategy to combat poor ethical conduct, the LSB proposed a statement of policy with five outcomes for regulators:
- authorised persons have the right knowledge and skills on professional ethical duties, both at the point of qualification and throughout their career
- regulators have a framework of rules, regulations, guidance and other resources which make clear that professional ethical duties are integral to the way authorised persons are expected to behave and act throughout their careers
- authorised persons are supported and empowered to uphold their professional ethical duties when they are challenged
- regulators identify and use appropriate tools and processes to monitor and supervise the conduct of authorised persons, and where necessary take effective action to address non-compliance with professional ethical duties
- regulators regularly evaluate the impact of their measures to pursue outcomes one to four above and make changes, if required, to ensure that they remain fit for purpose.
The Bar Council has submitted a response to the consultation and we have argued that whilst we recognise the issues highlighted in the consultation paper as representing conduct that falls short of proper professional ethical conduct by lawyers, we do not agree (if it is suggested) that these sorts of behaviour are commonplace at the Bar, or necessarily appropriate for additional regulatory control.
Some of the evidence cited in the paper does not relate to the Bar and fails to reflect the data available. The ethical issues faced by the different legal professions can arise in strikingly different circumstances and for this reason the Bar Council is opposed to an overly prescriptive approach. The LSB should allow for nuanced approaches to implementation whereby the different legal professions are all treated appropriately.
We broadly agreed with most of the proposed outcomes and expectations but remain concerned about the proposed requirement under outcome 3 for authorised persons working within authorised firms to report any anticipated risk of a breach of professional ethical duties within their firms or to the regulator as there are challenges around client confidentiality and how this would be administrated by regulators. This would represent a significant departure from the existing rules that require barristers to report themselves and others for serious misconduct. There is also the potential for a chilling effect on speaking up to alert colleagues to ethical risks for fear of it engaging the duty to report.