Let’s get ethical
There’s a growing expectation that firm leadership will take a more proactive approach to ensuring ethical working, says Susan Humble, partner and regulatory specialist at RIAA Barker Gillette.
The Horizon scandal, described by the BBC as ‘the most widespread miscarriage of justice in UK history’, has intensified the debate about ethical conduct. Between 2000 and 2014, 736 Post Office branch managers were convicted of criminal offences when Fujitsu’s faulty Horizon software (which was mandated for use in sub-post offices) wrongly created the impression that money had gone missing from accounts under their stewardship. Some victims went to prison, many encountered financial ruin, some died or suffered from serious physical and mental illness. After a long battle and many years, convictions were overturned, a group civil litigation action commenced, and the government set up a compensation scheme (too little, too late for those whose lives had already been ruined).
On 14 October 2022, the Solicitors Regulation Authority (the SRA) published a brief statement on its role as a ‘core participant’ in the ongoing Statutory Inquiry into Horizon, after government and media pressure to state what it was ‘doing’ about the solicitors involved. The statement read: “Our focus is on individuals and firms we regulate working on behalf of the Post Office/Royal Mail Group. We are considering the judicial findings in the group civil litigation. In respect of the criminal prosecutions, we are assessing whether individuals we regulate fulfilled their duties and ensured the prosecutions were carried out fairly and information and documents were disclosed when required.”
Socrates, who met his end via a hemlock cocktail, suggests asking – “what ought one to do?” about any ethical situation in life where there is a choice of actions. “Every action has its pleasures and its price,” he said. Our primitive lizard brains tend to focus primarily on pleasure and less on price. This is described as the “chimp in action” in the brilliant book ‘The Chimp Paradox’ by Professor Steve Peters. The lawyer chimp brain sometimes finds juicy work instantly attractive although it smells off. The rational human brain must step in to take control, to ask – “what’s the potential cost of this job in ethical and reputational currency?”
Should practice managers be worried about the ethics of their lawyers in what is a highly regulated industry? Isn’t it a given that lawyers will behave ethically? Remember what Lord Bingham, then the Master of the Rolls, said in Bolton v The Law Society [1994] 1 WLR 512 when talking about the fundamental purpose of sanction imposed on an erring solicitor: “To maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.” It’s a handy test, to ask ourselves – “do I trust you to the ends of the earth?” If the answer is ‘no’, you have a potentially tricky ethical dilemma to manage.
Office culture plays an important role in answering the question “what ought one to do?” When asked if we believe it to be ethical to treat colleagues with respect and dignity, most of us will say “yes” (though there’s always a maverick who takes a different view). Why, then, has the SRA found it necessary to introduce a new standard 1.6 in the Code of Conduct for Firms stating: “You treat those who work for and with you fairly and with respect, and do not bully or harass them or discriminate unfairly against them. You require your employees to meet this standard.” The proposed standard in the Code of Conduct for Solicitors at 1.5 states: “You treat colleagues fairly and with respect. You do not bully or harass them or discriminate unfairly against them. If you are a manager you challenge behaviour that does not meet this standard.” These changes are currently under consideration by the Legal Services Board and are expected to be implemented at some point after April 2023. Individuals, especially junior colleagues, find it hard to stand up to seniors behaving badly. That behaviour could include: initiating office banter, discriminating against those who are not in the clique, behaving unprofessionally in other ways or being consistently unreliable as a supervisor. The SRA’s original intention was that all solicitors should have a duty to challenge bad behaviour. However, it took account of the consultation responses and recognised just how hard it is for junior employees to tell their seniors that their behaviour is unacceptable. It’s up to the practice manager to lead those difficult conversations.
This leads on to the ‘turning of a blind eye’. Nelson employed the technique to avoid seeing an instruction that he had decided not to follow. If you don’t see it, it didn’t happen. The strategy worked well for him (although less well for others involved at the Battle of Copenhagen). It will fail as a defence to professional disciplinary proceedings. Look again at the new standard 1.5 above. “If you are a manager you challenge behaviour that does not meet this standard.” You have a positive professional obligation as practice managers to challenge colleagues where their behaviour falls short. This must be done in a fair and transparent way. It must also be done as soon as possible after the behaviour is observed. It isn’t going to help to store issues up to the next one-to-one or appraisal and expect the individual to respond constructively. It is unacceptable to turn a blind eye because the individual concerned puts in big bills or is the firm’s biggest rainmaker or most senior partner. Character matters!
Practice managers must lead from the top in establishing and maintaining a culture where everyone at the firm aspires to behave ethically. Inevitably that will, on occasion, bring practice managers into conflict with colleagues. It makes sense to have plans in place to deal with that conflict to manage the risk of escalation. There’s nothing new about an ethical approach to the law. It is a matter of sadness that reminders to behave ethically should be necessary. I choose to believe that Alfred Nobel was wrong when he said: “Lawyers have to make a living, and can only do so by inducing people to believe that a straight line is crooked.” There is a better, more ethical, way.
