A changing ethical landscape: findings from our ethics roundtables

I have worked in the area of professional discipline and regulation for many years. Ethics is therefore a topic close to my heart.

As part of my presidential year plan, I have opened a wider discussion on the ethical challenges faced by the profession, and how the Law Society can best support the profession to face into these challenges.

Parts of the profession have continued to come under public scrutiny for facilitating activities by clients that, while lawful, are considered contrary to the public interest.

However, what is deemed to be in the public interest is shaped by constantly changing societal norms and values, which are subject to other external developments – for example, the Russian invasion of Ukraine or the climate crisis.

More and more, we find that public opinion and media narratives influence the way we work and run our businesses.

In turn, solicitors are finding they must increasingly wrestle with environment, social and governance (ESG) issues.

We are launching a three-year programme to support the profession in navigating tricky ethical situations and the changing ethical landscape.

This autumn, we held three roundtables to find out what support our members need and how we can continue to make sure your voices are heard.

We spoke to over 60 senior legal professionals and experts in the largest firms, mid-size firms and working in-house about key ethical issues, ranging from client selection, regulatory intervention, conflicts of interest and wider ESG issues.

We also asked members for their views on how we can bolster the support we offer to help you to grapple with these issues.

We are holding one more roundtable in January for small firms and sole practitioners. Register your interest in our next roundtable

Code of conduct vs societal views

There was a wide range of views on whether solicitors should continue to simply focus on what is allowed by the SRA Codes of Conduct or whether to take account of the way society views different issues.

There was consensus around the difficulty of explaining, in ways which are easily understood, the reasons why solicitors make certain choices.

The SRA Principles were seen to provide a clear set of ethical tenets, and improved from previous codes, but this clarity was reduced by the rules being separated into two: the Code for Solicitors and the Code for Firms.

Participants stressed the importance of lawyers not being identified with their clients and the dangers in being prevented from representing clients who were deemed to be unethical.

In the view of our members, the right for everyone to have access to justice remains as fundamental a pillar to the rule of law as ever.

However, in-house solicitors highlighted the fact they often operate in grey areas, and that navigating this territory is an essential part of their role.

Contextual information behind why decisions were made is often lost when looking back at historical cases.

Navigating changing ethical landscapes

There was a broad acceptance that being perceived to be in step with societal views of 'ethical practice’ was important, and that being seen as ‘ethical’ is good for business.

Participants also recognised that junior and younger solicitors and potential recruits are particularly mindful of ethical considerations, beginning with the choice of which firm or company to join.

Clients are increasingly showing awareness of these issues too.

Discussions highlighted that the understanding of how lawyers do their jobs has remained fairly constant.

However, what has changed is the focus around their associated ethical and regulatory requirements.

In particular, debates about which clients are being represented, and what activities solicitors are facilitating on their behalf, have come to the fore.

Participants broadly agreed that it is for individual firms to decide how to operate within a framework of ethical principles and define how their businesses are part of changing societal landscapes.

This means that decisions on client selection are highly contextual and should be rooted in the specific organisational values and culture of a firm.

Support for the profession

The roundtables called attention to the different needs that different segments of the profession have, depending on the size of the organisation and type of work they do.

The key issues members highlighted they would like more support or opportunities to explore further were:

• client onboarding (particularly due diligence processes and the impact of ever-growing business acceptance teams on junior solicitors’ professional competences)
• changing firm culture
• ESG issues (including climate change and D&I)
• independence
• the specific requirements of in-house counsel

Participants said the profession would benefit from having more opportunities to discuss issues with counterparts in other firms.

Members also asked for more learning and development opportunities, support with onboarding new clients (such as templates for checklists and questions) and advocacy.

Next steps

Having spoken to larger and mid-size firms, and in-house solicitors, we would like to explore the views of small firms and sole practitioners and find out about their specific concerns and needs.

We are holding a virtual private roundtable on Thursday 26 January 2023, from 9.30 to 11am to discuss professional ethics in small firms and for sole practitioners.

If you would like to join, register your interest in our next roundtable.

Once we finish scoping this programme in spring 2023, I look forward to updating you on what to expect next and how to get involved.