Compulsory ethics training may help to fix the problem

The ethical disintegration of the legal profession is not quite as bad as some regulators would make out. Across the country, thousands of solicitors will today go about their business without doing anything remotely unethical. While the Gazette writes regularly about times when standards have fallen, these involve a tiny minority of practitioners. 

In fact the profession is doing pretty well in some respects not to be more unethical. The proliferation of litigants in person, the draconian (and often unnecessary) imposition of deadlines by the court and the pressure from clients with their daily email demands are a recipe for solicitors to consider making bad decisions. This month, thousands of conveyancing clients will be insisting that their lawyers meet impossible deadlines to save on stamp duty land tax. Lawyers on the front line say they feel exhausted and harassed.

In the circumstances - and I realise this view will be unpalatable to many - perhaps it is surprising that more lawyers are not tempted to mislead clients about the progress of a case? 

The truth is that regulators relish talking about improving lawyers ethics because a) it is popular with the public, b) it makes it seem they are taking positive action, and c) they can’t be held to account because there is no obvious way of measuring success or otherwise.

Does the profession have a problem with ethics? Not on a mass scale, but of course yes in some respects. The conduct of certain individuals at closed firms has been deplorable, while the Post Office Inquiry shone a light on some terrible practices that had crept in, including non-disclosure, bullying litigation tactics and meekness in the face of executive pressure.

My theory, for what it is worth, is that solicitors are not encouraged to think about ethics enough. In some bigger firms, there may be a sense that ethical issues are for compliance officers rather than foot soldiers. Has the age of COLP and COFA brought on an attitude of buck-passing?

Going even further back, do we do enough to teach and encourage ethics in law schools? Thinking back to your courses, how much attention was given to ethical dilemmas and the kind of choices that you might face in practice? My impression is not a great deal.

The non-application of ethical thinking is even greater for in-house lawyers, who may be working in relative silos and only flanked by those for whom ethics are not such a pressing issue.

The absence of applied ethical thinking could surely be solved by a requirement to take time out from law practice to give it prominence – even if only briefly.

The ICAEW, the accountants’ regulator, obliges every member to do at least one day of ethics training a year. It’s a trifling amount, but must be better than nothing. The SRA is not shy of imposing a regulatory burden but on this subject it is curiously unwilling to make solicitors prove they are being trained and improved.

The CPD points requirement was taken away years ago and replaced with a flimsy declaration that you have considered continuing competence during the year. Telling the SRA you are competent is significantly easier than proving it.

Mandatory ethics training won’t stop every case of poor conduct. It almost certainly would not have prevented the Post Office scandal. But it will be a regular reminder for everyone in the profession of the privilege of their position and the responsibilities that come with it.