Principles, Rules, and Touting

There’s an interesting piece in the Gazette, about touting for criminal clients by Robin Murray.  It suggests all sorts of devious, corrupt and illegal practices are engaged in by some firms when seeking to gain clients (particularly at the expense of other firms). An attempt to blame this on policies whereby, “expensively trained lawyers are replaced by those without a professional background.” Training has been replaced, it is suggested, by largesse with trainers (of the just do it kind) and sometimes threats of violence. I’m not convinced. Not least because all of the behaviour, shocking as it is, was going on when I trained as a solicitor rather too many years ago. I would not be surprised though if the problems have got worse, particularly as legal aid margins have receded and competition has become more cutthroat.  I certainly read the article (and the one it links to by the same author) as suggesting problems have got worse: even being blamed for the closure of significant firms.

I found myself wondering how often this behaviour is reported to the SRA. Some of the comments in the stories suggest it is sometimes reported and that the SRA does not respond.  For the SRA not to respond to such issues would be very concerning indeed. This requires further exposure from those making the complaints and a response from the SRA I think also the SRA should be able to explain how many of its complaints concern this issue and what they have done about them.  I also wonder if individual members of the profession need to look at themselves and ask if it is reporting what is manifestly serious misconduct every time they come across evidence of it.  There is sometimes a professional reticence about complaining and this is abetted by a scepticism about SRA inaction. Even if evidence is inconclusive, the SRA can build up intelligence on the sources of the problem and think about how to tackle it.

The second issue of some interest if the debate about the proposed revised SRA Code of Conduct.  The debate is essentially over whether a shorter, more principle based Code is in the public interest.  Do we need all the rules in the Code to keep lawyers on the straight and narrow?This is the quote from Robin Murray’s piece:

More shocking (and I use the word shocking in a very real and personal sense) is a proposal by the SRA to water down the only present anti-touting code provision. It proposes to replace Outcome 8.3: ‘You do not make unsolicited approaches in person or by telephone to members of the public in order to publicise your firm or in-house practice or another business’ with the broken-backed phrase ‘You do not abuse your position by taking unfair advantage of clients or others’.

Now to my mind all of the examples that Mr. Murray mentions are quite plainly breached by the taking unfair advantage principle (and other elements in the Code) without the unsolicited approaches rule (although I suspect a better case can be made for the rule where corruption is less obvious). Some lawyers need to get out of the ‘where does it tell me in the rules specifically that I cannot do that’ mindset. What is probably more important than the rules in this circumstance is the action taken. Both the SRA and the SDT have to be willing to act on, investigate, prosecute and discipline lawyers where a pattern of complaints suggests it is a significant problem.  This is why my point about how many firms have been complaining is important.  But, let assume Mr. Murray’s concerns are well founded (he prays in aid a Law Society survey which I have not seen).  This willingness to act is especially acute in markets such as criminal defence, where public interest and client vulnerability is clearly to the fore and risk is high.

An interesting broader question for the movement to fewer rules is whether the SDT (and ultimately the High Court) will support enforcement where standards might, to lawyers eyes, seem vaguer than bright line rules, but I would need to be persuaded that it is the rules that are the problem here.  It is evidence and action which is needed.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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