Mayson: Member of centre’s team
The Legal Services Board (LSB) should introduce an “overriding” ethical duty for lawyers, much like the overriding objective in civil procedure, academics at the UCL Centre for Ethics and Law have argued.
They also called for a “central ethics hub” through the creation of a Legal Ethics and Responsibility Network (LEARN) that brings together regulators, practitioners and academics “from across disciplines to develop and share best practice”.
Responding to the LSB’s consultation on a statutory statement of policy on ethics, the 13 academics – including centre director Dr Anna Donovan, Professor Richard Moorhead, honorary Professor Stephen Mayson and Mayer Brown partner Same Eastwood, said: “Navigating the potentially conflicting professional ethical duties is challenging.
“This can be exacerbated by the misperceived primacy of the duty to act in the best interests of the client, particularly as this duty can be reinforced by the immediacy of commercial pressures and dimensions of client power.”
Without specifying what the overriding duty should say, the academics said the LSB should consider including it as part of the statutory statement.
“Much like the overriding objective acts as a normative ordering mechanism for civil procedure, an overriding duty will help to perform the same role for lawyers (and those interacting with them), offering an unambiguous and unequivocal statement of the legal profession’s overarching obligation in the event a conflict of duties arises.”
The academics said they appreciated that the LSB’s draft statement made clear that “the duty to act in the best interests of a client does not override other professional duties”, which was an important clarification.
“However, it still leaves scope for individual interpretation and, therefore, misinterpretation.
“An overriding duty will provide clear guidance as to how any conflicts between the professional ethical duties must, ultimately, be resolved whilst providing an equally unequivocal statement of the robustness of the duties (and their priority) to those engaging and employing the profession.”
The academics said they fully supported the LSB’s objectives in proposing the statutory statement of policy “as well as the consultation’s premise that strengthening professional ethics is crucial for upholding the proper administration of justice and the rule of law”.
There was “widespread support for reinforcing professional ethical duties to reduce the risk of further lawyering failures such as the Post Office scandal, inappropriate use of NDAs [non-disclosure agreements] and SLAPPs [strategic lawsuits against public participation]”.
Legal regulators should mandate “effective training” on ethics, “guidance as to what ‘effective’ training means and an obligation for entities to provide sufficient support and space for employees to engage with training”.
Although “standalone undergraduate modules on professional ethics” did exist, like the final year module ‘lawyers, ethics and organisations’ offered by UCL, they were not “routinely available” in all law schools.
There was “value” in the development of LEARN, which could bring together regulators, practitioners and academics from across disciplines “to develop and share best practice, training resources, toolkits and case studies developed through evidence-based approaches”.
LEARN could “create a collaborative hub of resources for its respective members, help to lead policy discussions and act as a convening power and focal point for open conversations on emerging risks and best practice”.
The hub could include “warning notices, decisions, guidance, case studies and toolkits”, as well as potential model documents.
“The creation of a central ethics hub, whether via the LEARN proposal or otherwise, would help to increase user experience when accessing support at a time of stress.”
How about starting with a long consultancy process by engaging the Public as they are the biggest group of human society which suffers most from the secrecy of practises in the Legal Profession.