Our approach to ethics – and what it means for solicitors
As a solicitor, I have worked in professional discipline and regulation for many years. Ethics is of particular interest to me and a topic I have prioritised during my year as president.
Solicitors are officers of the court. As a profession, we are proud to be defined by the highest ethical and professional standards, underpinned by a robust regulatory framework.
However, our world is changing. New technologies, methods of practice and ways of working are raising unique ethical questions which we need to consider carefully.
Solicitors are also having to increasingly deal with environmental, social and governance (ESG) concerns.
These issues are constantly evolving as public attitudes shift, sometimes at pace because of world events, politics and social movements. This inevitably has an impact on solicitors as well as on their clients and businesses.
As president of the Law Society, I am also aware that parts of our profession have come under scrutiny for facilitating activities by clients that, although lawful, may be considered by some to be contrary to the public interest.
The profession has also long been the subject of sustained but often unjustified public criticism, sadly coming increasingly from parliamentarians with a political agenda.
The Law Society has a role to play in equipping members to manage challenging ethical situations and navigate an increasingly complex, sometimes controversial and at times contested landscape.
This is why I launched the Law Society’s three-year programme focusing on professional ethics.
Scoping the landscape
Over the last year, we have been mapping the key ethical issues facing the profession. We have engaged with solicitors across England and Wales to find out what support they need and what more we can do to provide that.
We have held four scoping roundtables with members from a range of different size firms, as well as an in-house solicitors’ roundtable.
The discussions brought up a range of views on possible solutions, particularly around regulation and producing more guidance.
Members highlighted the profession would like more support on issues such as:
- client selection and onboarding
- changing firm culture
- ESG issues, including climate change, diversity and AI
- corporate structures and the independence of in-house counsel
We have also been closely monitoring developments in the Post Office Horizon IT public inquiry, looking to incorporate learnings from its findings into this programme in the future.
Speaking to members about their concerns and considering solutions has given me an insight into workplace culture, which can be a potential root cause for unethical behaviour and conduct.
Improving professional ethics isn’t a matter of just creating additional professional training and education requirements or increasing regulation.
Leadership is key. We must see personal behaviours and virtues across the profession – including at the senior levels – which create an environment that supports, rather than prevents or suppresses, ethical behaviour.
The culture in any organisation is so important – its openness and propensity to share mistakes, misgivings and learnings, rather than fostering a practice of blame and dismissing concerns. These all have an important role to play in creating an environment of psychological safety.
In short, it is difficult to imagine a workplace in which good ethics thrive unless there is also a healthy and supportive culture built on trust, openness and principled leadership.
To improve ethical practice and be better equipped to act when faced with an ethical dilemma, learning from peers and being open to challenges from each other is crucial.
We have to be encouraged and supported to learn from mistakes. We must not be frightened or feel vulnerable as we develop over the course of our professional career.
Education and training are foundational building blocks, but to apply and maintain ethical competence, we need the informal learning that happens at work when supported by a healthy culture.
Our solutions can’t simply rely on more training or compulsory education on ethics, which can sometimes focus too narrowly on the application of regulations.
Such an approach is likely to miss out the influence organisational values and expectations have on professional practice in real life, where pressures from clients, courts or our employers can compete and create tensions.
Some of the dilemmas arising out of these competing pressures can’t be fully solved only by paying close attention to the Code of Conduct.
According to the SRA, when the principles conflict:
“Those which safeguard the wider public interest ... take precedence over an individual client’s interests.”
But these principles do not only come into play when there are issues of whether the borders of legality may have been crossed.
Ethical dilemmas often arise within the realm of what is legal but might not be considered as acceptable by some.
This leaves us to figure out what defines ‘the public interest’ – a relative term that can be subjective, depends on context and can be time/culture-specific.
Further ‘public interest’ questions then arise: in the interest of who? Defined by who? The ‘public interest’ is often contested territory, where ongoing power struggles take place to define and redefine its meaning.
For example, there is a lively current debate regarding the UK government’s approach in relation to net-zero targets for carbon emissions, against a backdrop of a cost-of-living crisis.
Arguments that we should accept higher energy costs to safeguard the future of our planet for future generations are pitted against arguments that it is more important to ease pressure on people struggling to make ends meet. As ever, there are difficult judgement calls to be made.
More generally, we would say that making any decision regarding ‘what is in the public interest’ is a complex process, where the SRA Principles need to be considered as a baseline.
This is why solicitors need to also engage their thinking at an ethical level to guide their judgement in choosing an appropriate course of action.
Often, there are no absolutes in terms of right or wrong. There are likely to be nuances, in which individual virtues, character, culture or institutional and socio-economic frameworks all need to be considered.
Senior leaders, role models and supervisors play a key role in providing opportunities to reflect on professional ethics.
We all have a responsibility to foster a psychologically safe environment to explore and have an open debate that faces into thorny issues.
It is clear to me that the Law Society can add value as a professional body and create impact by giving practical support to our members with workplace interventions that can improve ethical practice.
I am proud to have spearheaded this programme and to launch a ‘professional ethics hub’ on our website which will be its home for years to come.
It brings together resources to help members on issues that impact on professional ethics. It will be updated as the programme is developed further.
The next stages will further refine guidance for different segments of the profession with a distinct focus on the in-house community.
These will include best practice resources that can be adapted to fit with organisational context, as well as offer learning and development opportunities and events.
As I near the end of my presidency, I hope it is my legacy to bring the profession to the forefront of this challenging conversation.
This will allow us to maintain our excellent reputation here and abroad as we continue to have the highest professional standards and uphold the rule of law in this changing ethical landscape.
I want to know more
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