Letters roundup: 15 March 2024

Mistakes we make on ethics

I read your report on Professor Richard Moorhead’s speech to the Legal Services Board conference with dismay (see Gazette, 8 March). Twenty years ago, when I was embarking on a career as a lawyer, the concept of ethics, doing the ‘right’ thing and being accountable for one’s decisions was ingrained in me. That the profession must conduct itself to a high ethical standard must be of great importance to all who wish to call themselves solicitors.  

 

However, while there is much said about the lack of ethics in the profession, there is little or nothing said about the impact on ethics of regulation and enforcement. Of course, primary responsibility for ethics lies with the individual. However, the individual often makes a decision while in receipt of imperfect information and in a constantly changing world. In that event, the regulated look to the regulator for guidance and it is here that the regulator must take responsibility.

 

A person making ethical decisions will be balancing risk, not only for themselves but for their firm and client. They will be taking a decision in the knowledge that someone else (including the regulator) could come to a differing view. This is where a problem arises.

 

Solicitor regulation is outcomes-focused. The individual can properly consider a situation and come to a reasonable and reasoned decision, but find the regulator comes along at a later date and disagrees. The individual then faces punishment. This amounts to retrospective enforcement of their ethical decision-making where the regulator is often in receipt of information that only comes to light much later or at the point of investigation – information to which the individual never had access.

 

The individual can either argue their case knowing that, win or lose, they have to pay the often ruinous costs of the Solicitors Regulation Authority, or they can admit to an ethical breach and potentially suffer very serious personal consequences.  Catch-22.  

 

The faultline stems from the fact that although ethical standards and regulations are outcomes-focused, enforcement of those outcomes is rules-based. There is a mismatch. It leads to people hiding mistakes because they are afraid – afraid of what the regulator will do, how long it will take, that they will be disproportionately punished, and that they will effectively be made bankrupt by defence costs.

 

Fear is a negative emotion which more often than not leads to poor decision-making. Science fiction fans will know the quote from Dune: ‘Fear is the mind killer’.

 

Those that recklessly or negligently breach ethical standards have no place in the profession. Those that have made a genuine mistake must be made to account for their mistake, but not in a catastrophic way. Individuals who err often do so because they have misunderstood something or not had full information. They have simply got something wrong.  Such individuals must be encouraged to come forward. If not, dishonestly hiding mistakes becomes the thin end of the wedge. Ethical behaviours which are improper become normalised.

 

I say all this from first-hand experience.  Four years ago I made a mistake. I was punished at the Solicitors Disciplinary Tribunal and unfortunately graced the pages of this magazine for doing so. I will carry that professional and personal shame with me for the rest of my life.

 

I did, though, have the fortitude to admit my error as soon as I became aware of it, knowing full well where it might lead. As it was, I lost my job, my status and, for a period of more than two years, my mental health. I survived only because of amazing support from my wife and family.

 

The point is that when we as a profession get things wrong, we must embrace the error and take responsibility. The regulator, though, must accept that not all breaches of ethics are deliberate and that the nature of ethics is very difficult and can lead to mistakes.

 

That there needs to be more ongoing training around ethics is a given, but the one voice that is lost is that of those who have made a genuine mistake. How they came to that mistake must be understood and learnt from.

 

The way the regulator presently deals with such individuals has the opposite effect, leaving them hurt, scarred, scared and not wanting to engage. The regulator and the profession learn nothing and the vicious cycle continues.

 

Knowing what happened to me, ex-colleagues have said that they question whether they could now admit to making a regulatory error. The only entity to blame for that situation is the regulator, not the regulated.

 

The profession needs people who embrace the need for strong ethical standards even where it means admitting to a mistake. It also needs a regulator which visibly sets the highest of examples to those it regulates. A regulator that, crucially, understands the negative impact on ethics that its own actions inevitably have where it fails to differentiate between those who make a mistake and those who have no place in the profession.

 

Name and address withheld on request

Open to everyone

Research reveals white males from middle-class backgrounds are the most confident about the possibility of a career in the law and women less so (see Gazette, 28 February). This highlights why we must redouble our efforts to show the next generation that the law is open to everyone. More women enter the profession than men but fewer reach the upper echelons. It is vital that those who do, particularly female lawyers from backgrounds not traditionally associated with the law, are given a platform. We need role models so our young, aspiring female lawyers can see that they have a place at the table.

 

The legal world is changing. We have Baroness Sue Carr, the first lady chief justice, the likes of Barbara Mills KC, the first black woman to be elected vice chair of the Bar Council and many women serving as managing partners at our top firms. We have come a long way since women were first permitted to practise; we should be celebrating that and showing young people our profession is changing.

 

Dana Denis Smith

Founder, Next 100 Years project; CEO of Obelisk Support, London WC2