Ethics in law: what’s changing and why students need to know about it

ethics, morals, morality, right, wrong

For young lawyers coming into the profession, the legal industry is more exciting and dynamic than ever, with technology creating rapid change in the practice of law as well as new opportunities.

But newly-fledged solicitors seeking their fortunes need to be aware there is a rapidly changing regulatory environment out there – that will put increased focus on their behaviour.

Legal practices that operate as purely commercial operations (carrying little responsibility beyond that to the client) will face even greater scrutiny.

Start getting used to it. Ethical competence is a core element of what it means to be a professional lawyer, and a big shift is coming in the profession’s approach.

It is important to distinguish ethics from compliance. Legal ethics is about the role of lawyers in society and their wider duties. Compliance is doing what it says in the rule book. The SRA’s statement of competence makes clear that in future the requirement of law firms will be to cover both.

Although the terms overlap, compliance tends to focus on what you need to do, such as how to comply with the Code of Conduct, money laundering regulations conflicts and other rules.

Ethics, by contrast, are more about why you need to act or behave in a certain way. The concern is that ethics are hardly taught at undergraduate level, are a relatively small part of the legal practice course and are often overlooked in practice.

So, it is important that new solicitors – and those already in practice – have an understanding of ethics. The Solicitors Regulation Authority (SRA) is leading the way as part of a new ‘Statement of Competence’. Those coming into the profession need to be aware of it – and think about it.

The statement requires a wider understanding than would come from compliance based training.  The first two requirements: “recognising ethical issues and exercising effective judgment in addressing them” and “understanding and applying the ethical concepts which govern their role and behaviour as a lawyer” are all about ethics.

It is only when we get to “identifying the relevant SRA principles and rules of professional conduct and following them” is there a more compliance approach.

This is a move away from the current process driven system to one based around standards and quality. It will have a huge impact on how we train solicitors for the new “super test” and on the type of in-practice training required for the existing profession.

As the SRA says:

The role that solicitors perform as defenders of individual rights and liberties, guardians of the rule of law and facilitators of commercial and economic activity means that the standards expected of competent solicitors are not just a matter for the legal profession but are of importance to society as a whole.”

The statement only begins to have an effect in relation to solicitors in November when future continuous professional development (CPD) has to be measured against it – and lawyers and their firms will regularly need to show whether or not they have the necessary professional standards to meet their obligations to their clients, the court and the public.

Until now we could all tick a box saying we had done the necessary hours. We will all know people who have gone on a course, any course, no matter how irrelevant to their work, just to get in the hours. How ridiculous is that? Now we will each have to decide how we develop to meet and maintain a standard.

At the heart of all this development is the re-emphasis of personal responsibility of solicitors for their own conduct and indeed their own competence. The simple idea is that there is now a benchmark against which we can all be measured.

By these steps the SRA is shifting the emphasis back to the individual and encouraging them to take responsibility for their own ethical conduct.

This year, the SRA will also consult on a new Code of Conduct that is that allows us to work out from ethical principles and the underlying law how we should behave in certain situations.

This could be especially important as solicitors broaden the services they offer, and to put them in the same position of other providers in the market. The SRA is also proposing to allow solicitors to practice outside regulated entities as long as they do not do reserved legal activities.

All this will define the outcomes that new entrants need to demonstrate on admission to the profession. You will need to show not only that you understand the rules but also what it means to be a solicitor.

Of course, your clients’ interests are paramount – except that you should never do, or agree to do, anything dishonest or dishonourable, even in a client’s interests or even under pressure from your best and most valuable client.

For new and existing lawyers, it will now be down to you to take responsibility for your competence, ethical behaviour and the right professional development.

Iain Miller is a partner at Bevan Brittan