We need to talk about ethics

Welcome to this December special edition of Truth Be Told. As the holidays approach, I have taken this opportunity to unwrap a topic that is likely to dominate the debate in the legal sector in 2024 - and I am thrilled to feature some very special guests too, to bring you some holiday sparkle to the edition.

Ethics, without a doubt, is not an easy topic. I was spurred to tackle it through the lens of our recently published report World in Motion: why the legal profession cannot stand still. In it, we highlight the increasingly vocal demands among young lawyers for the legal industry to begin emphasising purpose as much as it does profit, and to be given the right to refuse work on ethical grounds.?

Their desire for a more sustainable, ethical and inclusive profession comes against the backdrop of the ongoing debate about the sector’s ethics, which has intensified in the last 12 months in the wake of the Post Office scandal, governance failures at the Royal Institute of Chartered Surveyors, the contentious use of nondisclosure agreements in employment disputes, the leaked Pandora and Panama papers, SLAPPs and weaknesses in sanctions and anti-money laundering compliance.

So do the hopes and aspirations of junior lawyers provide insight into the future direction of travel for our profession? Does a brighter and more ethical future beckon? To explore these questions, we have decided to ask some leading industry voices to share their thoughts on how we regain the trust of the society we serve as lawyers, how junior lawyers in particular can be empowered to achieve this, and what one practical thing needs to happen in 2024 to facilitate this.

I hope you find their thoughts as fascinating as I do, and that you enjoy this special edition of Truth Be Told.?

“Law firms need to be proactive in showing society and the legal profession the facts and changes which they are/are not implementing - not just pay lip service.” - Daniel George Peacock“

Daniel George Peacock , Chair of the Junior Lawyers Division:

?What are your thoughts on how we regain the trust of the society we serve on an ethical perspective as a legal profession?

?“First and foremost, the work that people and organisations are doing in collating information [from an ethical perspective] is vital in regaining the trust of society – if trust has been lost. That is as lawyers but also as humans, it goes without saying that we need to provide the information, and then give to society an opinion based on the evidence obtained.?

“The legal profession cannot stand still and there’s always work to be done - but we are certainly taking steps in the right direction!

“When thinking about things from an ethical perspective, it’s very important that leaders are leaders with change coming from the top, which in turn trickles down. Junior lawyers will only voice their opinion if there’s a culture where they’re able to do so. The World in Motion report emphasises that we need a change here - as 65 per cent of the junior lawyer respondents said their employers “should allow them to refuse to work on certain matters for ethical reasons” but only 18 per cent felt leadership would allow them to do so. “In respect of the ethical perspective and everything as a whole it is very different challenge for larger firms than it is for smaller firms. I would say it’s harder for smaller firms to put their sometimes-limited resources into these issues as ultimately their energy will be put towards ‘their bottom line’ and other business matters. Smaller firms may not have the budget to have dedicated teams working exclusively on CSR or ESG for example and making changes to make it easier for smaller firms to implement these changes would go a long way. So, it’s important we understand the different challenges that we are faced with as a legal profession. “Ultimately, it’s a challenge for everyone but it’s all of our responsibilities as lawyers and humans to raise these issues and make sure that society is better kept as we go into the future.”

How do we provide agency to junior lawyers to achieve that? And what one practical thing needs to happen in 2024 to facilitate this?

“Media attention is a big one. Working with organisations like The Law Society and Obelisk Support to name a few is a huge step in the right direction. But essentially, change comes from the leadership down. The legal profession is banging the drum on many of the issues faced currently (and in the future) but it’s leaders who have to make the changes. Leaders need to be leaders. “As junior lawyers, we’re active in voicing our opinions but of course, it’s a concern that only 18% of the group which took part in the World in Motion report felt they could speak up on ethical issues. There could be many reasons which contribute to this, one being the area of law a junior lawyer [or senior] may work in - for example, criminal defence. It is also difficult for juniors to refuse work because they may want to progress their career and climb the ladder which would require input from those within leadership roles. “For change to happen in 2024 and onwards, gathering the correct and reliable information is extremely important. The work that’s being done is excellent, but law firms need to be proactive in showing society and the legal profession the facts and changes which they are/are not implementing - not just pay lip service through a report.”

The practice of law is not about ideology or morality in a generalised sense, but about what has been encoded in law and regulation.” - Jenifer Swallow?

Jenifer Swallow , award-winning lawyer, business leader, innovator and coach

What are your thoughts on how we regain the trust of the society we serve on an ethical perspective as a legal profession?

“Lawyers have a contract with society to practise law. Under that contract, which is enshrined in their regulatory duties, they promise not to put the interests of their client above the rule of law and administration of justice. Acting ethically is to act in accordance with their regulatory principles. The legal profession upholding or building trust with society, is therefore about going back to these basics and ensuring they are never compromised. To do this requires us to bring independence to life in the day to day of legal practice in all and any context, including in commercial work, where the rule of law may seem rarely implicated. This is the G of ESG for the legal profession - instituting this as foundational governance within the practice of law.”

How do we provide agency to junior lawyers to achieve that? And what one practical thing needs to happen in 2024 to facilitate this?

“In terms of how to provide agency to junior lawyers, I would start with a reminder that the practice of law is not about ideology or morality in a generalised sense, but about what has been encoded in law and regulation. If you are asked to do something that conflicts with the law or with your regulatory duties then you will need to speak out on that and hold a clear line. Re-read your regulatory code periodically to ensure you understand what is required of you. This is different to having a preference or value set that is counter to what your employer needs you to do. For example if you don’t agree with tobacco but you are asked to act for a tobacco company. This is a matter not of law or regulation, but of organisational policy, which you can seek to influence by discussion, but over which only the decision makers in that organisation have ultimate control. This is the reality of business. Notwithstanding that businesses would be wise to have channels through which such policies can be openly discussed.?

“Regarding practical steps that can be taken to support the agency of junior lawyers, I recommend two: (1) Every legal organisation or legal team should be required by the regulator to keep a conflicts log, to record regulatory conflicts or potential conflicts and how they are mitigated. This would bring to normality discussion around this topic and its importance, as well as having the potential to bring greater collective focus and consideration to specific scenarios. (2) Expressly referencing the regulatory duties of each lawyer, including their duty of independence, within their employment contract. This would strengthen confidence in the basis for speaking out, as well as increasing clarity on the expectation to do so, including within the employer organisation. There is a template employment contract addendum here.”?

“People in authority [must] lead by example and carve out an environment in which people can talk openly and constructively about their concerns and their mistakes, so that everyone can learn and evolve.” - Richard Moorhead

Richard Moorhead , Professor of Law and Professional Ethics and the University of Exeter

What are your thoughts on how we regain the trust of the society we serve on an ethical perspective as a legal profession?

“The main answer as to how the lawyers can regain the trust of society is to not have a hand in the scandals that arise. Sadly, it is too often the case that we see lawyers involved in major, headline-grabbing injustices, the Post Office scandal being perhaps the most recent and obvious example.?

“What we often see here is the results of sharp practices and improperly aggressive lawyering, or of misleading people externally to the client organisation or even within the client organisation. Indeed, there have been many examples involving household-name companies where lawyers have helped one part of the business mislead another part of the business – a case of the left hand bamboozling the right hand, if you will.?

“We sometimes also see lawyers misleading their client’s counterparties, or Parliament, or the courts, or their opponents. Or we witness them acting with excessive aggression on behalf of kleptocrats, oligarchs and fraudsters – I am thinking here of SLAPPs in particular.?

“So to my mind, if lawyers want to rebuild public trust, whilst it is important for them to think about whom they act for and what they become complicit in, they also need to reflect a lot more on how they act, and to be properly cognisant of their professional obligations."

How do we provide agency to junior lawyers to achieve that? And what one practical thing needs to happen in 2024 to facilitate this?

“There is no straightforward answer. One thing that junior lawyers must bear in mind is that, under the law, they bear an equal share of the responsibility when it comes to meeting their regulatory obligations.?

“For example, I know of a case in which a junior lawyer and a law-firm partner accidentally misled the court, which the junior lawyer subsequently became aware of and alerted their senior colleague to that they needed to correct it. The partner essentially told them not to worry about it, but this didn’t save the junior lawyer from being struck off alongside the partner when the matter came to light. So the first uncomfortable truth is that junior lawyers cannot ignore their professional responsibilities, even if they are informally or formally pressured to do so.

“In this context, it is important that junior lawyers are encouraged to talk about these issues openly and honestly, be it with their fellow trainees or their supervising solicitor or partner. Fostering an open dialogue is the best way to make them feel more comfortable about speaking up when they notice things going awry.?

“To facilitate this process, there is a very useful book that I would recommend: Giving Voice to Values: How to Speak Your Mind when You Know What's Right, by Mary C. Gentile. In it, she discusses ways of broaching difficult conversations without putting one’s interlocutor on the defensive. The book’s lessons are applicable in many real-life situations.

“However, it also takes proper leadership to create an open culture in which people of all levels of seniority feel safe in voicing their concerns without worrying about being punished, excluded or made to feel that they aren’t a team player. This is the biggest single practical change I would like to see next year and beyond to empower junior lawyers and win back public trust: that at all levels of the organisation, people in authority lead by example and carve out an environment in which people can talk openly and constructively about their concerns and their mistakes, so that everyone can learn and evolve.”

A big thank you to our guest contributors for taking the time to respond so thoughtfully and thought-provokingly to our questions. It will be very interesting to see what changes next year brings for the legal sector – will the status quo prevail, or will ever more law firm leaders realise that junior lawyers are the future of this industry, and therefore allow them a seat at the table when charting their firm’s course into the rest of this decade and beyond? Tangible action may be the name of the game if leaders want to retain their ethically conscious and purpose-driven junior talent. Only time will tell, but I have a strong feeling that this new generation will not be easily fobbed off with empty promises.?

For now, I wish you all a wonderful, relaxing Christmas break in the company of your loved ones, and a healthy, happy and successful 2024.