How we look at trust in the profession has risen recently in the agenda as the Solicitors Regulation Authority makes changes to the way ethical standards of both firms and individuals are viewed. Perhaps part of this is driven by the lawyers being rated below hairdressers and the “ordinary man in the street” in a recent Veracity Survey by Ipsos Mori
New SRA handbook…
We are expecting the SRA to release the new Handbook later in the year and although the timing is uncertain, it is clear that how firms and individuals behave will be subject to greater scrutiny. So it should come as no surprise that the importance of the principles of conduct governing behaviour is coming to the fore. Hence the prominence of “ethics”.
Much of the debate is around what is honesty and what is dishonesty and how the tests of behaviour apply across both professional and personal life. The courts have made clear that the standard of honesty required for solicitors is that they can be “trusted to the ends of the earth”. It is not just a case of trust in an individual, but also trust in the legal system overall so the SRA will take dishonesty seriously with the real possibility of individuals being struck off.
The SRA provides guidance on how they view dishonesty but the basics are to apply a two part test. First, is an objective test of would a reasonable and honest person think of the act being dishonest? The second, subjective test, is whether the individual knew their action was wrong. The two part test does not give people a “get out of jail” card though as you can still be found guilty of malpractice even if you honestly had no idea that your approach was unacceptable.
Just as behaviour on social media outside work can impact on the office, we can expect that the new rules will take a broad view on the context of demonstrating high standards of behaviour. The recent case of a banker deliberately dodging his rail fare to work generated a maelstrom of media comment, with much being made of the lack of trust into bankers. Whether you like it or not, the argument will be made that if you are not honest in your personal life, you cannot be trusted to act honourably in your professional life.
We expect to see many day to day ethical challenges to be explored within a work context. For example, if a restaurant omits a bottle of wine from your bill, should you tell them? If you have a complaint with your energy supplier, do you tell them you are a solicitor so they take your complaint seriously? What about using Twitter to complain to a local councillor about the latest plans they have for a homeless shelter two streets away from your home?
So how will firms implement the changes?
Whilst there is a clear need for individuals working in the legal sector to understand the broader view, firms will also need to ensure that they have developed policies and procedures so that the firm’s stance is clearly set out. Not only will this need to help staff today, it may need to stand scrutiny in the future if the regulator reviews behaviour of a member of staff. We anticipate a lot of discussion on where the ethical line lands as more guidance comes from the SRA and from cases that are made public. For instance, will we still see people telling customers that a “letter is in the post” when in fact it has not even been written yet?
Training of staff on the new rules and how they will be adopted will be a key part of a firm’s implementation efforts. We are developing a new approach to ethics training which will challenge staff and their thoughts on what is right and what is (or may be) wrong.