I am heartened that ethics is to come back to the top of the regulatory agenda. Although, I am dismayed that there is no explanation as to why in recent years ethics has apparently fallen such as to need re-elevation.
Ethics in day-to-day legal practice is hard. Really hard. The situations are nuanced, hidden behind layers of what clients say and don’t say and incredibly fact specific. Sometimes ethical problems hit you full frontal; more often they sidle up behind you in the shadows.
Ethics in legal practice has to be taught and taught hard. It is not an easy subject. When I qualified, over 20 years ago now, I remember very clearly how ethics was the first thing drummed into us on the LPC. I still have an overwhelming imprint that ethics is what separates us as a profession from being a mere business.
In those days I would not necessarily say ethics was easier, but it was easier to get to grips with. We had a book of rules (which I still have, using occasionally as a source of guidance). We knew where the line was and most importantly the Law Society as the regulator also knew where the line was.
Since that time, we have moved to an outcomes-focussed regulatory regime. We have to achieve the outcomes, but the trouble with outcomes is that you only know you have achieved them when you reach them. Knowing that has made dealing with ethics much harder because not only is the issue to be identified successfully, but also the point at which the outcome proscribed has been reached.
This has led to regulation by hindsight. It is easy to see in hindsight when something has gone wrong - much harder to see it when one is in the weeds of a problem. We have gone from a system where we were judged in the moment to one where we are judged in retrospect.
Consider this analogy. If I am driving down the road my speed is a matter of fact. If I break the speed limit, I know I have broken the speed limit because my speedometer tells me. Now consider driving down the same road with the speedo covered and simply having to not reach the destination before a certain time has elapsed. I won’t know until I get there whether I have achieved my outcome. I may genuinely try very hard to achieve the outcome but the final analysis will be found wanting even if by only a second.
The above is an imperfect metaphor, but it illustrates the issue and the problem that solicitors in practice face; that outcomes-focused regulation has made ethics harder to embody successfully. Decisions can and very often are made in the genuine belief that they are being made correctly in pursuit of the relevant outcome(s). The solicitor then finds that a crucial piece of information was missing (perhaps actively withheld) only to be revealed later and thus the solicitor is in breach.
How ethics is enforced has an impact on how it is put into practice. Whilst we have outcomes-focused regulation, we have rules-based enforcement. That means if you have not reached the outcomes required you are in breach no matter how hard you tried and whether you made a single tiny error, a massive glaring one, or set out to ignore ethics in the first place. No nuance is allowed.
That lack of regulatory regime matching between ethics and enforcement is in my opinion negatively driving practice in terms of ethics. It is making solicitors who make a mistake scared of enforcement; of losing their job and reputation; of the mental health problems that they will suffer. The way in which solicitors are investigated, and the manner of enforcement is directly and significantly contributing to the reduction in ethical decision making which the LeO is apparently so worried about.
The regulators must ask themselves what role they play in the wider ethical ecosystem of the law. It is not enough to simply require it of the profession. They must demonstrate similar ethical standards themselves and a proper understanding of the impact their own actions have on ethics in the profession.
Joel Woolf is a freelance solicitor advising rural businesses
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