Moorhead: Single code, single regulator, single disciplinary tribunal may be needed
The leading figure on legal ethics in the UK has called for the creation of an independent commission charged with improving “honesty, integrity and effectiveness in the use of law”.
Describing it as akin to the Clementi review which led to the Legal Services Act 2007, Professor Richard Moorhead said: “We have to change the way lawyers think and behave. We have to put complete integrity and particular care not to mislead at the front of our thinking. We should turn away from lauding amorality and guard against harm.”
He challenged the claim that “lawyers do law but not morality”, explaining: “I am not arguing that morality should generally trump legal rights. But there is a great deal of hypocrisy in lawyers saying they do not do morality.
“The disclaiming of morality often merely makes room for a morality defined by client self-interest.”
The professor of law and professional ethics at Exeter University has been delivering this year’s Hamlyn Lectures, first at Exeter, then Leeds University and last night at University College London, where the event was chaired by Lord Arbuthnot, who as the MP James Arbuthnot played a critical role in exposing the Post Office scandal.
Professor Moorhead has been leading the Post Office Project, looking at the lessons for lawyers’ ethics and corporate governance, and for the criminal justice system.
He said last night that the scandal was “a lesson in how lawyers played not just with facts and rules. They played with lives. They ruined lives.
“It’s worse than that, they often led that harm. Incompetence, and orthodoxy, cynicism and recklessness, complacency, vanity and, I am sorry to say, sometimes, dishonesty, played their part.
“The Post Office scandal shows us the lawyers have to do more than say sorry, half-heartedly or otherwise and be disciplined by stronger regulators.”
While “lucid ethical thinking” could be aided by modest changes to codes – indeed, he argued for a single, unified code of conduct for all lawyers – and better guidance, supported by training, “explicit accountabilities” and early challenge mechanisms, this would require “exceptional leadership and determination” to deliver.
“There is a great deal of detailed work needed to develop and improve guidance, to understand, define and support independence – as behaviour not just a label – to work on reporting up and out, on lawyers as whistleblowers, on the abuse of privilege, and on the drafting of unreasonable contracts.”
But there was a more fundamental change needed and this led to his call for a major review.
“The Clementi reforms concentrated on competition and consumerism. It made significant progress but left ethics underplayed in the equation. It provided a compromised form of independent regulation.
“The Post Office scandal suggests unfinished business that requires something of similar weight, independence and political commitment behind it.
“It needs to tackle issues in the professions, in the courts, and corporate governance, with its central agenda: how to improve honesty, integrity and effectiveness in the use of law.”
He suggested a “strongly led commission with a mandate to address a programme of reform, not just one big bang” to deliver the “real change in the integrity of lawyers, the legal system and those who use them” that victims of the scandal deserved.
In the earlier two lectures, Professor Moorhead argued that the failures exposed by the Post Office and other scandals, showed a “zeal” on the part of lawyers to practise in a way that drowned out honesty and integrity.
He explained yesterday: “A culture of ‘Can we get away with it?’ is driven by wishful thinking and legitimised by lawyerly zeal. What is maximised is a self-serving version of truth…
“In aligning the interpretation of facts, law, and the design of strategy to the client’s preferences maximally, lawyers cease to maintain the integrity of their role.”
Better enforcement would help significantly but was not enough on its own.
“There is evidence, mainly anecdotal but of good quality, that SRA [Solicitors Regulation Authority] investigation is not done as well as it should be.
“Whilst the SRA has high success rates at the [Solicitors Disciplinary Tribunal], that suggests they are sometimes too cautious tending to pick low-hanging fruit. They certainly recruit investigators at levels unlikely to regularly attract the calibre necessary to take on big firms well, for instance.
“For the Bar Standards Board (BSB), the situation is significantly worse. In particular, Fieldfisher’s BSB-commissioned report was highly critical of BSB investigations. This, plus the [Legal Services Board’s] own assessments of regulatory performance, suggest significant problems.
“Smarter, better resourced, more respected regulators (or a single regulator) and possibly a single disciplinary tribunal are essential elements of change.”
Clinics aside, courses on lawyers and especially ethics have always been “Cinderella subjects” in UK law schools, he went on. Law school heads, and “hitherto uninterested law firms”, should be “clamouring” to change this.
“It is incredibly important for students of law, whatever their eventual career, to be taught to think critically and reflectively about lawyering.”
Other recommendations included “a thorough critical look” at how judicial practice impacts litigation ethics: “Ongoing constructive challenge may be needed to consider how the messages judges send, and the behaviours tolerated, align with ethics, justness and professional codes. Not to mention proportionality.”
For in-house lawyers, the general counsel should always report to the chief executive and there should be better accountability systems, such as a named individual taking responsibility for oversight of legal risk at a company, like the senior managers and certification regime in financial services.
Regulation of in-house lawyers could be enabled by making the provision of legally privileged advice a reserved matter requiring a practising certificate.
A disclosure officer in litigation, as is best practice in prosecutions, and documented responsibility and sign-off around privilege, disclosure and redaction, “might improve disclosure”, meanwhile.
Professor Moorhead recommended too giving legal regulators a power like the Financial Conduct Authority to order ‘skilled person’ reports, where it appoints a skilled, independent person to require a report and remedial steps on a particular theme in a regulated firm.
“Imagine being able to ask firm X to commission a review of its use of without prejudice letters; or firm Y it’s management of litigation holds, or firms A, B and C about the due diligence they do before sending out SLAPP-like threats.”
Further, the role of compliance officer for legal practice at law firms was “under-developed”.
Professor Moorhead recommended too a full, independent review of the law on privilege.
“Professional privilege is beloved of lawyers, and treated as a fundamental right by the courts. It is also unarguably abused and diminishes proper professional accountability.”
See the full list of his recommendations here.
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