Legal ethics, ‘independence’ of lawyers and Legal Services Act 2007

This post will discuss the ethics and values of the legal profession and how they will be affected by the Legal Services Act 2007 (LSA) when it fully comes into force in 2010. The Act will implement fundamental changes to the structure and regulation of legal services in England and Wales.

 

In the beginning, law, morality and legal ethics theories will be discussed briefly.

Then five values of the legal profession will be outlined and each one will be analysed.

In the conclusion the main arguments about whether the LSA supports those values and ethics will be summarised.

 

 

Many philosophers have written about morality and law, argued whether the development of the law has been influenced by morals, and whether it is moral to enforce morals. Some philosophers say that words, morals and ethics are interchangeable. Ethics represent a system of morality comprised of norms of behaviour.

 

Both law and ethics are forms of social control and influence the formulation of codes of conduct, indeed they share the same vocabulary. The difference is that the breach of moral rule does not necessarily involve sanction but breach of legal rule usually does. Lord Delvin in the Enforcement of Morals (1965) expressed the view that the primary function of the law was to maintain public morality.

 

Aristotle and Plato wrote a lot about ethics. However, it is important to remember that Aristotle, for example, stated that it is the function of slaves to obey their masters, and that women should naturally obey men. So it is fair to say that philosophy and ethics takes place within a particular society and reflects its values.

 

There are two relatively modern ethics theories: Utilitarianism (which is associated with John Stuart Mill), and Deontology (which was presented by Immanuel Kant).

The main idea of Utilitarianism can be represented by the phrase:´The only purpose for which power can be exercised over any member of a civilised community against his will is to prevent harm to others.¨

 

The Latin phrase Fiat justitia ruat caelum (let justice be done, though the heavens fall) represents the theory of Deontology and means that justice must be realised regardless of the consequences.

In this essay it will be discussed whether legal practice has seen a real application of these theories.

 

Sometimes in the public imagination, lawyers combine high salaries with little visible benefit to society. People often forget the function of lawyers which can be found in preamble of Code of Conduct for Lawyers in the European Community 1988:

 

´ A lawyer must serve the interests of justice as well as those whose rights and liberties he is trusted to assert and defend and it is his duty not only to plead his client´s cause but to be his adviser. A lawyers function therefore lays on him a variety of legal and moral obligations towards the client, the courts, the legal profession in general and each fellow member in particular and the public. ´

 

Values (or principles) of the legal profession in England are outlined in section 3 of the Legal Services Act 2007:

´(a) that authorised persons should act with independence and integrity,

(b) that authorised persons should maintain proper standards of work,

(c) that authorised persons should act in the best interests of their clients,

(d) that persons who exercise before any court a right of audience, or

conduct litigation in relation to proceedings in any court, by virtue of

being authorised persons should comply with their duty to the court to

act with independence in the interests of justice, and

(e) that the affairs of clients should be kept confidential.´

 

They are similar to principles outlined in rule 1 of the (now amended) Solicitors Practice Rules 1990, with the difference that it is now a legally binding piece of legislation and not just a guide. Additionally LSA 2007 amended The Solicitors Act 1974. One of the problems with the old rules and principles of professional conduct was that there was no clear statement on the basic principles which underlay ethical principles; now they are easy to understand for lay people.

 

These five principles will be analysed in order.

 

Independence and integrity

 

Many definitions of professional values include independence (in other words autonomy). In general, the development of the actual rules and principles of professional ethics in England and Wales has proceeded with little debate or consultation with the profession but lawyers had powers of self-regulation – collective professional autonomy; the purpose of self-regulation is to set a country-wide independent standard of training, conduct and competence.

 

The existing regulators of the legal profession are listed in Schedule 4 of LSA 2007, and there are quite a lot of them: The Law Society, The General Council, The Master of the Faculties, The Institute of Legal Executives, The Council for Conveyancers and others.

 

Section 2(1) of the LSA 2007 created yet another regulatory body, the Legal Services Board, which is supposed to be independent but rules governing its decisions are specified in the schedule 10 of the LSA. It is ´at arm´s length from the government´, so by definition it can not be fully independent; in fact it can be easily influenced by political pressure. Members can not be lawyers and they are not elected,this is not very democratic.

The current state of affairs – where you have a regulatory body made up of unelected officials who are not part of the legal profession – violates the concept of Utilitarianism, because they impose excessive powers which are not isolated to preventing harm.

Since the Office for Legal Complaints (OLC) was created, the professional bodies no longer need to be dealing with complaints against their members. On one hand, the need to police the system disappeared so lawyers can concentrate on doing their job and in opinion of some legal writers ´It is a structure which will work in the public interest without threatening the independence of the profession´ but on the other hand, the legal profession lost the right to regulate themselves and so in a way lost their independence.

 

There is a move towards ´firm-based regulation´ and away from the regulation of solicitors and other individuals directly. Firms of solicitors will be required to provide information to the Solicitors´ Regulatory Authority (SRA) on a regular basis. Legal Services Board instructs the SRA, which now has additional rule-making powers in relation to obtaining practice certificates and suspending from work independent solicitors. Since the regulatory body which is at arm´s length from the government´can dismiss lawyers without consultation, lawyers are effectively dependent on them for their jobs therefore they cannot be independent. Arguably, it violates the constitutional principle of separation of powers and this strongly implies less and less independence for solicitors and future centralisation of regulation of the legal profession.

 

People with integrity act according to their beliefs and values and do not compromise themselves by acting insincerely or hypocritically. Integrity is important because´The law depends on honest lawyers´. The new 2007 Code is less prescriptive than the old guide so solicitors are now expected to exercise their own discretion as to how to act.

 

Proper standards of work

 

People used to believe in God as a law-giver and perhaps did not question the work of the legal system as much. Now competence is an ethical duty for a solicitor. ´What lawyers do has value only if they practice competently´.

 

Not long ago, clients were not able take lawyers to court for negligence or incompetence (Rondel v. Worsley 1969 1 AC 191). Advocates immunity was abolished in Hall v Simon (2000 3 ALL ER 673).

 

It might be important for a client to complain about a solicitor’s work.

Lord Thomas of Gresford in the House of Lords debate on 6th February 2007 said that in 2006 the Law Society had failed in five out of seven targets of the complaint system that were set. According to this the Law Society’s complaints system has not been functioning well and there is a need for a new system to provide better service for clients.

 

Section 114(1) of LSA 2007 created The Office for Legal Complaints (the OLC) and it is described in Schedule 15. This changed the complaint procedures radically but not the disciplinary procedures.

 

Baroness Butler-Sloss in the debate in the House of Lords regarding LSA 2007 said:

 

´I am very concerned about the hybrid nature of the complaints that will come to the OLC. Some will be on discipline; some will be seeking redress. It is extremely difficult to differentiate between them. Indeed, I am told that about 70 per cent of the complaints have been hybrid. We have the great problem that there will be the same facts, possibly two bites at the same cherry with two different organisations—the approved regulator and the OLC—dealing with the same case. There is always the possibility of different conclusions.´

 

Section 4 of Schedule 15 gave clear instructions to the Board that in appointing members of the OLC, they should make sure that they have knowledge or experience in the handling of complaints, the provision of legal services, legal education and legal training, consumer affairs, civil or criminal proceedings and the working of the courts and so on.

 

In other words, people working there should be very professional and able to maintain the proper standard of work for solicitors. However, no matter how well the complaints system is written, councillors and staff need training in how the system works.

There is also a new provision requiring any reporting accountant to report immediately any evidence of fraud or theft of client money and any information which is of material significance in determining whether a solicitor is a fit and proper person to hold client money. Section 181 of the LSA 2007 protects the public from people who pretend to be lawyers. So maybe there will be less fraud and the standard of work will increase.

Part 6 LSA Legal Complaints :

 

(b) are within the jurisdiction of the scheme (see section 125),

may be resolved quickly and with minimum formality by an independent

person.

 

If one believes that more control will stimulate a better standard of work, then this act must surely accomplish this.

 

Quality of work also may have suffered since new ´Alternative Business Structure´, which will be discussed below.

 

Best interests of clients

 

A lawyer must act in the interest of the client and to act to the client´s best advantage within the limits of the law. There is the important ethical principle that concerns the possibility of the client misleading the court. Even though ´The client´s interests should take precedence over those of lawyers´, a solicitor who helps a client to mislead the court can be punished.

The LSA created two new criminal offences that are punishable by up to two years in prison. Both offences are fraud – related information offences (falsification of documents, misleading material, etc.) One of the purposes of criminalising an act is to reduce the crime via deterrence. So now solicitors are even more likely to remember the ´limits of the law´ when acting to the clients best advantage which somewhat contradicts the theory of Deontology.

 

When the duty to act ethically conflicts with the desire to win the case for the client at all costs, some lawyers found it difficult to to achieve an acceptable resolution.

 

It is in the lawyers best interests to provide protection for their clients. Clients often complain about cost of legal services, however Sections 108 and 194 of LSA 2007 describe pro bono representation.

 

The Act introduces changes aimed at increasing competition in the provision of legal services, creating greater flexibility within the legal profession and protecting and promoting the interests of consumers.

 

Part Five of The LSA 2007 created a model called ´Alternative Business Structure´. It will consist of lawyers of all types and non-lawyers and will be able to offer all legal services. There are not many details about it in the act, but it should make receiving a service very easy for clients.

 

Some academics call it ´Tesco law´ and say that : ´This seismic change in the legal profession will herald a new breed of providers and stimulate innovation and better access to legal advice for clients.´

Other academics say that :´Vital elements of a complete legal service for consumers will be lost when the market allows small and specialist professionals to disappear.´

 

Right of audience

 

Right of audience was described in schedule 2 and section 192 of LSA 2007.

 

´Rights of audience

3 (1) A “right of audience” means the right to appear before and address a court,

including the right to call and examine witnesses.

(2) But a “right of audience” does not include a right to appear before or address

a court, or to call or examine witnesses, in relation to any particular court or

in relation to particular proceedings, if immediately before the appointed

day no restriction was placed on the persons entitled to exercise that right. ´

 

 

´192 Powers of court in respect of rights of audience and conduct of litigation

(1) Nothing in this Act affects the power of any court in any proceedings to refuse

to hear a person (for reasons which apply to that person as an individual) who

would otherwise have a right of audience before the court in relation to those

proceedings.

(2) Where a court refuses to hear a person as mentioned in subsection (1), it must

give its reasons for refusing. ´

 

In other words under LSA 2007 a court can refuse to hear a person if it can give reasons for it. Also employee’s rights of audience at the court that was granted under Section 77A of the Prosecution of Offences Act 1985 was specifically excluded from LSA 2007 at paragraph 1(3)(b) of Schedule 3. Nevertheless if a solicitor requests an oral hearing for a client or a witness and it is denied, it can be subject to judicial review.

 

Confidentiality

 

Every person has a right of privacy and every client has a right of confidentiality. It is important because clients should feel secure when talking to a lawyer about private issues.

However, there are a few exceptions. The first concerns children under the Children Act 1989. The second, the disclosure of private information which is in the public interest (which is troublesomely subjective). The Solicitor does not have an obligation to reveal information to prevent crimes, unless it is terrorism related (under Terrorism Act 2000), but he can if he wants to. Additionally, the client himself can waive his right of confidentiality. Waivers should be made expressly, but implied waivers can also arise which raises problems.

 

The Public has access to certain information held by authorities; this exception comes from Freedom of Information Act 2000.

 

Sections 153 and 170 of LSA 2007 amended the Data Protection Act 1998; confidentiality remains a problem. The Act does not appear to resolve the problem, but it is difficult to speculate before it comes into force.

 

Conclusion :

 

LSA 2007 represents a dramatic change in the legal system – the legal profession is no longer independent from the government because lawyers cannot regulate themselves. This is a dangerous situation for democracy. The Act supported customer´s interests in a way that it will be easy for them to receive legal service though the ´Alternative Business Structure´, it created a system for what academics refer to as ´Tesco law´. However quality of service may suffer, but at least the complaints system will be improved by the OLC. Confidentiality and right of audience remain problematic.

 

Having analysed the reality and predictable future of legal ethics, it can be said that neither Utilitarianism nor Deontology apply in practice.

 

Even though there are some positive things about this act, such as more easily accessible customer service and a new complaints system, it is nevertheless dangerous because lawyers are no longer independent and legal profession is no longer separate from the government.

 

 


 

 

 

 

 

 

 

 

Bibliography

 

Legislation

  1. Legal Services Act 2007
  2. The Solicitors Act 1974
  3. Criminal Justice Act 2003
  4. Terrorism Act 2000

  5. Freedom of Information Act 2000

     

Codes of conduct

1)CCBE Code of Conduct for lawyers in the European Community 1988

2)International Code of Ethics of the International Bar Association

3)Solicitors´ Code of Conduct 2007

4)Solicitors Practice Rules 1990

 

Cases

 

1)Berkey v Kodak (1980)

2)Hall v Simons (2000) 3 ALL ER 673

3)R (Thomas) v Law Society (2004) 1 WLR 2522

4)Rondel v Worsley (1969) 1 AC 191

5)W v Egdell (1990) 1ALL ER 835

 

 

Books

  1. M. Allen, Criminal law, 9th ed. Oxford, 2007

  2. Boon and Levin,The ethics and conduct of lawyers in England and Wales, 2nd ed. Oxford, 2008
  3. H.L.A. Hart, Law, liberty and morality,Oxford, 1984
  4. J. Hendrick, Law and ethics, Cheltenham, 2004
  5. A. Hopper and G. Treverton Jones, The Solicitorś Handbook, The Law Society, 2008
  6. H. Kennedy, Just law, London, 2004
  7. S. Nathanson, What lawyers do, 5th ed., London, 1997. p. 143

  8. S. Toddington, Law in its own right, Oxford, 1999
  9. The Law Commission, Annual report 2007 – 2008, London, 2008
  10. The Commission for Local Administration in England, Running a complainants system: guidance on good practice, London, 2002
  11. J.Thiroux, Ethics : theory and practice, 6th ed., New Jersey, 1998
  12. M. Thompson, ´Teach yourself ethics,London 2006 

 

Journals

 

1)S. Allen, ´End of an era? Professional Legal Services´, New Law Journal,September 2008

2)M. Lane, ´Opportunity knocks´, Legal Week, June 2008

3)J. Robins,´Will Tesco Law Leave Legal Aid on the Shelf?´, Legal Action, July 2008

 

Internet

 

1) http://www.theyworkforyou.com

 

 

 

 

 

 

 

 

 

 

M.Lane, Opportunity knocks, Legal Week, June 2008,

H.L.A. Hart, Law, liberty and morality; Fredrich Nitzsche, ´Beyond good and evil´

  1. J. Hendrick,Law and ethics, Cheltenham, 2004, p.19

M.Allen, Criminal law, 9th ed. Oxford, 2007, p. 10

    M.Thompson, Teach yourself ethics, London 2006, p.104
  1. J.Hendrick, op cit, p.9

H. Kennedy, Just law, London, 2004, p.153

LSA 2007 Schedule 16, s. 177

Boon and Levin,´The ethics and conduct of lawyers in England and Wales´, 2nd ed. Oxford, 2008 p.4

Ibid 9, c. 6

Burkhardt and Nathanie, 2002, p. 142

Ibid 9 p.101

J. Ludlow, New Law Journal, 9 November 2007,

LSA 2007, s. 4(a)

Ibid 12

  1. A. Hopper, G. Treverton Jones, The Solicitorś Handbook, The Law Society, 2008.

H. Kennedy, Just law, London, 2004. p.155,

S. Nathanson, What lawyers do, 5th ed., London, 1997. p. 143

  1. The Commission for Local Administration in England, Running a complainants system: guidance on good practice, London, 2002

A.Hopper, G. Treverton Jones, The Solicitorś Handbook,The Law Society, 2008 p.9

1.04 Solicitors´ Code of Conduct 2007

Legal Services Act 2007, Schedule 16, 44BC (s.3)

Criminal Justice Act 2003, s. 142(1)

Berkey v Kodak (1980)

M. Lane, Opportunity knocks,Legal Week, 19 June 2008,

J. Robins,: ´Where does legal aid fit into the bright future that is “Tesco law?”, Legal Action, July 2008

S. Allen, End of an era? Professional Legal Services´, New Law Journal,September 2008

R (Thomas) v Law Society (2004) 1 WLR 2522

ECHR, Art.8

W v Egdell (1990) 1ALL ER 835

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