Regulatory Watch – Are solicitors still members of a profession?

The proposal to reduce lawyers to ‘approved persons’ suggests our regulators have failed to understand the reasons behind the profession’s ethics.

In her article published in this Journal in June, Susanna Heley referred to the fact that the Legal Services Board has indicated that it would like to replace the titles of “barrister” and “solicitor” with the words “approved persons” (see Regulatory watch: Simplifying the regulatory maze, 18 June 2012). Quite apart from begging the question “what is a disapproved person?”, I share Susanna’s concern at the potential damage such a change of title would cause to both branches of the profession. Personally, I dislike the implication that I have to be approved before I do anything and one wonders what damage to the LSB’s reputation – or that of the SRA – would be done by the nefarious wrongdoing of such an approved person.

I was recently talking to another solicitor about ethics and how far solicitors have to go in advising their own clients to take independent advice where there is a potential conflict, as might be the case where a firm seeks to limit its liability. An interesting issue was raised by my friend as to whether we now lived in a post-ethical age. Indeed, a friend of his had recently received a reply to an email he had sent commenting on the need to comply with professional obligations with the question: “do you really think that we are still members of a profession?”. We were concerned at the apparent erosion of our professional ethos for a number of reasons. First, neither of us believed that we are just in business to make as much money out of our customers (to use the modern vernacular) regardless of how we do it. Obviously an honourable tradesman would also wish to do the best for his customer/client but there is another aspect to any attempt to remove the discipline of a profession from lawyers. Solicitors are, after all, officers of the court and they owe a duty to the court, inter alia, not knowingly to mislead the court when e.g. making submissions on behalf of a client. As a solicitor I am expected to comply with certain rules.

Robust ethical regime

This is as much for my own protection as for the court, other members of the profession and indeed my clients. I recall many years ago being pressurised to swear an oath confirming election expenses in absentia. While volunteering to go and meet the client at any time at any place that she chose, I refused to administer the oath over the telephone. She complained to my senior partner who came round to my room to see me, pointing out that the lady’s husband was a major client.

I told him that if it was discovered that I had done it without applying the oath properly not only would the client be facing problems but I would also face possible disciplinary sanctions in the tribunal, which wouldn’t help the major client as I might no longer be able to represent his best interests. Needless to say my argument prevailed.

It seems to me that being a member of a profession not only gives added value to those we seek to serve – our clients – but also protects members of our profession from being involved in matters which they would normally prefer to avoid.

Should this be of any concern to our regulators? I think it should, if only for reputational reasons. Lawyers are often castigated in the media, sometimes with justification – sometimes not. Recently, I would suggest that the pressure on us has been reduced as other “professions” have overtaken us in the unpopularity stakes – politicians, journalists, bankers etc.

It has been noticeable that not only have the individuals concerned been the subject of public opprobrium but their regulators – for instance, the FSA – have also been at the receiving end of a fair amount of flak. Recent events have, to my mind, proved that there is a need to improve professional ethics, not to dumb them down with weasel words as the LSB seemingly wishes to do. I am sure that most bank customers would agree on the need for banks to be subject to a more robust ethical regime. I am equally sure that our clients would want us to be subject to a strong code of ethics and for our regulators to understand that.

This article was first published by Solicitors Journal and is reproduced by kind permission.


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