Round up – Feb03

I thought it would be a good idea to try and round up interesting lawyers’ ethics related stories from time to time.

Pressure on NDAs, the BSB, and the SRA

With the BSB receiving a very poor report card from the Legal services Board on its regulatory performance recently, the BSB indicated an independent review into its enforcement processes will be commissioned. The BSB has been drifting for some time, unable to really establish a sense of direction or its independence. A new chair, with a strong reputation, will be facing up to the profession and its critics. Interesting too to recall that the BSB passed on plans to take a tougher line on NDAs in response to pressure from professional members some time back as the LSB has signalled an interest in pushing the professions on NDAs and a call for evidence is planned for the Spring. The Law Society’s dreadful guidance on NDAs remains up, I believe. Meanwhile, the SRA is under scrutiny for its actions on SLAPPs from Parliament.

SLAPPs

Steven Vaughan and I wrote a response to Lord Pannick’s letter to the Times on SLAPPs. For understandable reasons, professional and commercial, many of the professions’ leaders (I am thinking beyond Pannick here) would like the debate about lawyers to focus on whether ‘bad chaps’ have a right to representation, and see ethics as a PR problem rather than a real problem. The real meat, I think, is in how to tackle unethical conduct for which the evidence base is substantial and growing. This does not mean that lawyers are generally nefarious individuals. Any profession has its bad apples. The more important point is that that even ‘good people can do bad things’; pressure, ignorance, and complacency can all be factors. I think brushing off substantial concerns through faulty analysis feeds that complacency. Here’s the exchange…

Neidling Zahawi’s Lawyers

In a parallel (and more important) story Nadim Zahawi was fired. Part of the causal chain here was tax lawyer Dan Neidle very publicly calling out Zahawi’s lawyers for (allegedly) unprofessional libel tactics designed to stop Neidle calling out Zahawi’s tax handling. You can read his summary of the entire saga here. As well as whether Neidle is right about the claims of professional misconduct (the SRA are investigating, the main firms is said to be taking the allegations seriously) an interesting question is whether the legal tactics helped give the story against Zahawi legs. Aggressive litigation tactics come with a cost. As Barbara Streisand once sang to Richard Nixon, It’s the alleged cover-up that kills you.

FTX

This story caught my eye. Corporate insolvency can give rise to serious conflicts of interest for law firms instructed both before and after the share price has tumbled. The FTX scandal has prompted a pretty juicy set of ethical allegations across the Pond.

Until next time…