Mapping the Moral Compass of In-House Lawyers

 Your can now download our report entitled “Mapping the Moral Compass” (or a shorter prettier Executive Summary).

The report looks at the relationships between in-house lawyers’ role, professional orientations, team cultures, organisational pressures, ethical infrastructure and ethical inclination.  It is based on a survey of 400 in-house lawyers working in public, third and commercial sectors.

We think that the report provides a unique profile of real differences within the in-house community. We examine individual and team orientations to the in-house role; the invocation of professional principles; and ethical infrastructure, ethical pressure and relationships with the employer. It is as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted.

Through this research the report profiles the characteristics of individuals, teams and environments most associated with a stronger or weaker propensity to behave ethically. It is important to emphasise that this mapping of the ‘moral compass’ of in-house lawyers shows that ethicality is associated with individual and professional notions of the in-house role but also with team orientations and the broader organisational environment. Ethicality is both a systemic and individual phenomenon.

The report notes that the systemic lesson is important: there is too much emphasis in legal circles on thinking that ethics is about being the right sort of individual. That kind of thinking is complacent and dangerous.

The report shows that individuals, systems and cultures mesh together in meaningful and measurable ways to increase or reduce ethical risk. As numerous corporate scandals have shown, such ethical risk puts individual lawyers at risk of professional misconduct but it also encourages poor quality decision-making for the organisations that employ in-house lawyers: short-termism and sharp practice can lead to catastrophic error.

Some initial findings at a glance:

  • 400 respondents
  • 10-15% experienced elevated ethical pressure. 30-40% sometimes experienced ethical pressure
  • Ethical pressure was highest in public sector organisations
  • 36% agreed that loopholes in the law should be identified that benefit the business
  • 9% indicated saying “no” to the organisation was to be avoided, even when there is no legally acceptable alternative to suggest
  • 65% achieving what their organisation wants has to be their main priority
  • 7% never discussed professional ethics issues with colleagues internally or externally, formally or informally.

Paul Gilbert, CEO of LBC Wise Counsel, who with Steven Vaughan of Birmingham Law School and Stephen Mayson, an honorary prof at UCL, is working with me on the Ethical Leadership for In House Lawyers project (you can keep up to date with that project here)

Whilst some findings give us concern, it is important to emphasise the good practice we found.  Our research suggests that ethical in-house practice is about rounded individual understandings of the role; it is about the approach of teams and the organisations those teams work in; it is about understanding and drawing on all the obligations of professionalism; and, it is about building a better infrastructure to manage the tensions within the role.

This research is part of a broader process of engagement and evolution of best practice with the practitioner community about ethical practice for in-house lawyers. Parts 2 of the process will discuss the findings emerging from townhall meetings and interviews with in-house lawyers.

 

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Professional loopholers: Pension Protection Fund CEO hits out

Mossack Fonseca has heightened scrutiny of the role of law firms as professional enablers of corruption, and tax evasion.  The collapse of British Homes Stores is throwing up some interesting questions about law firms.  Olswangs and Linklaters have been criticised before a Parliamentary Select Committee, and today’s FT contains an even more interesting point without naming a specific firm (£).  The allegation is that a ‘worthless’ guarantee was given to reduce BHS’s pension protection levy.  The advisers involved are not named but the Chief Executive of the Pension Protection Fund, Mr Alan Rubenstein, is quoted as saying this:

In his evidence to the select committees, Mr Rubenstein said “abuse” of the use of guarantees by companies was “widespread” and that there were “a number of advisers out there, respected firms, who were advising their clients on ways to reduce their PPF levy”

What is not clear from the story is whether he is saying the abuse and the advice on reduction are always, normally or merely sometimes one and the same, but the reputational costs of lawyers saying, I merely advise [on the loophole I discovered] and my client decides whether to exploit it, appear to be growing.

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Lawyers, advocates and the perils of description

Those of us who follow Giles Peaker on twitter (as @nearlylegal – follow him, he’s excellent especially if you have any interest in in housing) will know of his penchant for taking unregulated legal services providers to task about the way they describe their offerings to the public.  I’m glad to say he’s written up some of these encounters in a blog post well worth a read for those of you interested in the regulation of legal services.

His basic concern is that clients will be misled by claims from these unregulated suppliers that they are ‘lawyers’ when they are not solicitors and barristers (or CILEX or… etc.). Another concern is they claim to be advocates, but do not have rights of audience.  Some also claim to be scholars of jurisprudence. Giles seems less worried about them. I will not speculate as to why.

Of course one can claim to be a lawyer if one delivers law in some form (and indeed my own work has shown such ‘non’-lawyers can – in the right circumstances – get pretty good at it).  And I suppose one can say one does advocacy if judges permit me (sometimes? regularly?) to represent my clients even if I do not have a right of audience (say as a McKenzie friend or in tribunals where I do not need such a right of audience). Voila, I am an advocate: like it or not because the term is not protected by legislation.   The ‘truth’ of such claims does not mean the clients are not misled however.  By describing myself as a lawyer clients might be misled into thinking I am similarly qualified to being a solicitor (my recollection is that LSB/LSCP  research pointed in this direction). And saying I am an advocate does not mean I can definitely represent you if I do need a judge to allow me to act as an advocate without a right of audience.  There are even greater problems if I imply I am able to conduct litigation.  As Giles points out, clients of ‘advocates’ or ‘lawyers’ outside of legal services regulation are unlikely to have the post facto protections of claiming on their lawyers insurance or making complaints to the Ombudsman if things go wrong. They are not big protections but they are not insignificant either, especially the Ombudsman.

Giles is doing a manful job in collating this kind of potentially misleading (and sometimes I think more unequivocally misleading) marketing by unregulated providers. What he is not really able to do is collect much evidence of actual harm or the even trickier job of balancing the potential harms and the potential benefits of a cheaper unregulated sector where the law demands no regulation.  (In fact, whether it is cheaper is not much evidenced, I think, outside of wills.)  Neither the LSB nor the LSCP have shown they have the resources to do this properly either (the LSCP’s McKenzie Friend research did more than scratch the surface but it is quite a long way from an adequate evidence base for policy in the area). What we essentially have is educated guesses and interesting stories about the dark recesses of what may be a sizeable part of the legal services market. It is also an important part of the market aimed at the interests of sometimes vulnerable consumers. We should do better.

 

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Trigger warning on Trigger warnings

Warning: the Mail on Sunday sometimes publishes pointless poop. There, I said it.

Legal Cheek (*rolls eyes*) are recycling a story in the Mail on Sunday (*feels dirty and rolls eyes*) which I think may have first aired in some form in the Times (*rolls eyes in a more disappointed expectations kind of way*) about law schools giving trigger warnings to Law Students if the classes are going to discuss ‘potentially distressing’ material. For the record:

  1. I don’t think anyone means feedback on formative essays.
  2. The story does not say that such warning were actually given: it says the Director of Undergraduate Studies asked colleagues to bear such warnings in mind.
  3. The story does not say that any students walked out in relations to warnings that may or may not have been given.
  4. The stories (save perhaps the Times one which I cannot recall the details of – if indeed I read it) do not engage with any specifics whatsoever about the rights and wrongs of giving a warning in relation to specific, potentially upsetting circumstances.
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Hillsborough: it was absolutely important that no facts were hidden

I have written before on the solicitor instructed by South Yorkshire Police in the aftermath of the the Hillsborough disaster.  The Independent Panel report made a number of  criticisms of the conduct of evidence management for the Police, especially (although not solely) the amendment of witness statements by the solicitor, Peter Metcalf.  It seems from the Coroner’s summing up that much of that amendment process was overseen and conducted by Mr Metcalf personally.  It was also done under considerable pressure of time and of circumstance.

You can read the Coroner’s summing up where he deals specifically with Mr Metcalf’s evidence here and here. It is a fascinating account, which reveals amongst other things that Mr Metcalf saw himself, or portrays himself, as representing individual police officers collectively when he plainly was not: he was instructed by the police force. If his claim is an accurate depiction of his state of mind at the time, I would argue he did not know who his client was or deal properly with the conflicts he was operating under. It’s an important point because at the time the Police were obliged to be candid with Lord Woolf investigations.

We can see something of the confusion about who the client was in the Coroner’s, Sir John Goldring, summing up:

Mr Metcalf agreed there was a responsibility on South Yorkshire Police to present the facts, warts and all.  He said South Yorkshire Police was not a corporate body, but a group of individuals.  As I understood what Mr Metcalf was saying, it was that he was representing  the individuals.  He had to think about them.  He said he did not approach his role like that of a traditional insurance lawyer who would have said that, “We say nothing … do nothing … give nothing until it is asked for.”

He said he never felt any tension or conflict between his duties as described in the letter to Lord Justice Stuart-Smith and the responsibility of candour which South Yorkshire Police owed.  He said, with the benefit of hindsight, it was “possible” he was operating under something of a tension or conflict.  If so, he said, it was not deliberate.

The most important allegations are the way in which evidence was managed.  Police officers were told not to write accounts in their notebooks (as  was standard practice) but to write plain paper statements. As far as I am aware, Mr Metcalf was not the instigator of that decision. Questions of Mr Metcalf’s conduct come later in relation to his amendment of draft statements from witnesses.

One of  the claims made by Mr Metcalf is that he sought to remove opinion or hearsay evidence which would not be helpful to the Inquiry, or would very occasionally he conceded he had removed factual information, but he said those facts were red herrings he was justified in removing to protect his clients.  Anyone who wishes to pursue that argument should read the Independent Panel Report which calls into question this argument.  Here’s what the Independent Panel noticed:

116 of the 164 substantially amended statements removed or altered comments unfavourable to SYP. These included 41 statements in which alterations downplayed or removed criticisms made by officers of their leadership and of the police response to the disaster. These commonly included any indication or impression that senior officers had lost control of events, or that they were ill-equipped to respond to the unfolding tragedy. The amendments also frequently included deletions of references relevant to the failure to effectively monitor the pens and close the tunnel once Gate C was opened.

A number of the alterations are dissected. Statements such as the following were deleted:

“I at no time heard any directions being given in terms of leadership. The only messages I heard were those requesting assistance of one sort or another, and where appropriate, their acknowledgements.”

“I have to state that even at this stage and this location and with a number of higher ranks in the area nobody seemed to be organising the injured.”

“The Control Room seemed to have been hit by some sort of paralysis’”

“[T]he organisation of this event was poor, as has been the case for most of the season. Too little notice had been taken of current trends and football intelligence and too much reliance has been placed upon previous information held.”

“Too many non-operational supervisory officers were in charge of important and critical parts of the football ground.”

“The deployment of officers around the crucial time needs to come under scrutiny, too many were sat around in the gymnasium whilst others were rushed off their feet.”

As I said when I blogged on this previously, one can see how some of these could be generously interpreted as opinion evidence but they also contain key recollections about the police response to events. Similar concerns were expressed about police radios and poor communication between senior SYP officers and their colleagues. Some of the alterations related to a crucial incident at the previous year’s FA Cup Semi-Final where “SYP officers referred to crushing in the outer concourse area”. On  these police were, “asked by the SYP solicitors, Hammond Suddards, to reconsider and qualify their statements.” It was a key area, relating to the claim that the Police knew of the safety risk posed by the Hillsborough stand and that SYP had previously controlled entry to the pens where fans died but did not on the fateful day. References to ‘chaos’, ‘fear’, ‘panic’ and ‘confusion’ were also altered or deleted from statements.

We can get a further sense of the problems in this account from the Coroner.  As noted already an issue of concern was whether officers in SYP had, and knew about, a policy (it was called the ‘Freeman policy’) of tunnel closure to protect against influxes of fans of the sort that led to this tragedy but which was not activated in 1989.  A Chief Inspector Creaser had, “said at the deputy chief constable’s debriefing meeting [on the 19th April] that he knew of the Freeman policy” before 15 April (the date of the disaster).  On 2 May, “Mr Creaser saw Mr Metcalf when Mr Metcalf went to Snig Hill to speak to the senior officers whose statements had been requested.  On 3 May 1989, Mr Creaser made a statement.  The Coroner notes, “It did not mention previous closure of the tunnel.  It did mention he had been on duty at both the 1987 and 1988 semi-finals.”  The Coroner then says this:

Mr Metcalf agreed that, in retrospect, it was surprising that previous tunnel closure did not appear in his first statement.  Mr Metcalf said there was no connection at all between him seeing Mr Creaser on 2 May and Mr Creaser not mentioning tunnel closure in his statement of 3 May.

The Coroner continues:

On 2 June 1989, Sergeant Higgins made a statement. In that statement, he said that at the 1988 semi-final he had been instructed to close the tunnel gates and divert fans to the outer pens.  On 5 June, three days later, in other words, Inspector Creaser gave evidence to the Taylor Inquiry.  Sergeant Higgins’ statement was not before the inquiry, a statement, in other words, in which he said he had been instructed in 1988 to close the tunnel gates.

Mr Creaser spoke, when giving evidence, of the previous closure of the tunnel at the previous semi-finals.  He said Sergeant Higgins had been involved.  Chief Superintendent Mole and Sergeant Goddard had given evidence before Mr Creaser.  Each had said the tunnel had not previously been closed, as Mr Creaser had said.

That was on 5 June, so, again, recapping the dates: 2 June, Higgins’ statement, 1988 semi-final, said he had been instructed to close the tunnel gates to divert the fans to the outer pens; 5 June 1989, Mr Creaser gave evidence to the inquiry, the inquiry did not have Mr Higgins’ statement of 2 June.  Mr Creaser told the inquiry of the previous closure and said Sergeant Higgins had been involved.

Mr Mole and Mr Goddard had given evidence previously. Each had said the tunnel had not previously been closed. On 12 June, Mr Metcalf asked that Sergeant Higgins’ statement about tunnel closure be reviewed to see whether it was dealing with duties during phase 2 of the match, that is to say, after kick-off.  On 7 July, Mr Metcalf advised: “Is it the case that my suggested alterations were not acceptable to ex-Police Sergeant Higgins?  If so, we shall have to think what to do.”

Mr Higgins’ statement ultimately went to the inquiry on 12 July 1989, after the evidence hearings were over.

Mr Metcalf agreed it should have gone before.  He said he could not say why it did not.  He did not accept this sequence of events was an example of him trying to control the narrative which went to Lord Justice Taylor.

Members of the jury, I want now to deal with a letter that Mr Metcalf wrote on 13 June to the Municipal Mutual Insurance Company, which were the insurers of South Yorkshire Police.

On 13 June, Mr Metcalf wrote to the insurers to advise them about developments in the inquiry.  He commented that statements recently collected described officers barring access to the tunnel in 1988.  He said this was “most unhelpful evidence, from our point of view”, and that they were asking that the officers concerned “be asked to review these statements carefully before they are submitted”.

Mr Metcalf did not agree that these comments amounted to twisting and turning, as it was put to him, to avoid criticism and responsibility of South Yorkshire Police.

Rather than comment, I am going to give the last word to Mr Metcalf as represented by the Coroner. We should bear in mind, before deciding whether we accept this version or not, that Mr Metcalf was operating in a most unusual situation and one imagines under significant pressure when he dealt with all the police statements in the aftermath of the terrible events at Hillsborough .

When asked whether there was anything about his approach to preparing and presenting evidence to the Taylor Inquiry that was not satisfactory, Mr Metcalf said this: “I think I would say, first, I deeply wish I hadn’t been in that position in the first place.  Secondly, yes, I have no doubt I have made mistakes.” He said he did not feel that at any point he was in a position of having to put forward evidence which supported a particular case for South Yorkshire Police.

No senior officer, directly or indirectly, gave the impression he ought to be doing that.  Mr Metcalf did not accept that he used the Salmon letter as a checklist for areas in which he was going to try and sanitise the evidence.  He was not engaged in a concerted effort, he said, with senior officers to try and protect the force at all costs. Mr Metcalf agreed that it was imperative that South Yorkshire Police should be entirely upfront and honest and tell the whole truth to the public inquiry.  Mr Weatherby suggested it was imperative they did not try to hide anything or act defensively.  Mr Metcalf said that the issue of acting defensively was a bit more tricky.  He thought the attitude at the start was to say that it was not simple, rather than South Yorkshire Police holding its hands up.  This did not mean they were defensive in the sense of being dishonest.  It was absolutely important, he said, that no facts were hidden.

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Public Access Research – a couple of quick points

The Bar Standards Board and the Legal Services Board have jointly published a consultants project into public access (the system under which barristers may see client’s directly rather than being instructed through professional advisers, especially solicitors).

…there appears to have been relatively modest beneficial impacts for consumers, with respect to widening choice, improving timeliness of access to legal services, and reducing costs. This is partly because not all clients or cases are, in the barristers’ opinion, deemed suitable for public access. However, barristers doing higher volumes of public access work, and those authorised to conduct litigation, reported higher levels of beneficial impacts…

Very fairly, the reports authors point out they would largely be unable to report on consumer risks because they had no data from the consumers themselves.

Perhaps the most important impression given from the data is that public access is growing and that the main barriers to it are the inability of clients to take on the more complicated bits of cases that barristers are reluctant to do under public access.  Litigation and correspondence were, for some, problem areas creating undesired work. Two things stuck me as interesting:

  • some of the barrister respondents may have been uncertain whether – when they were helping their clients – they were conducting litigation (and so some may have been doing so when not authorised – it’s not clear if this is an error driven by the way the surveys were completed or something that is really happening); and,
  • whilst most public access work came through recommendation, a fair proportion of work was received through an intermediary. This made me wonder whether the Bar’s ban on referral fees was vulnerable in practice.  Unsurprisingly, the report is silent on this.

A more interesting question for me is the extent to which barristers or ancillary providers are able to develop systems, web platforms, apps, and so on to support the ‘unbundled’ model of legal services that public access could lead.

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Specifically instructed: Don’t be a tool?

As a young lawyer, in the seventies office block that housed Sheffield’s County Court, I remember a small epiphany.  It involved discovering the import of the phrase, “I am specifically instructed.” I was only just out of law school, a wet behind the ears trainee, and I recall a small thrill as I picked up the legal equivalent of a masonic handshake.  It was the language of the insider, dissembling to keep outsiders at bay. I enjoyed the excited vanity of a neophyte lawyer entering the club, and a little sliver of discomfort as my law school clinic training urged me to reflect critically on the received wisdom.

For those not yet initiated, to say one is specifically instructed is to say to the judge, My client has been told what I have to say has no merit but I am asked to say it anyway or to similarly say I think my client is wrong.  The client might be bonkers or malicious or misguided and without a nod or a wink, but with two words, an advocate has engaged in a kind of phoney advocacy.  The client has the feeling of their point being made. The judge has the signal that the lawyer is not really making the point. A little bit of gristle is implanted in the sausage of justice.   Perhaps the client’s interests are compromised, but probably they are not.  The feeling of justice being done is maintained and the lawyers and judge do not have to waste too much time on weak or extraneous arguments. There are times when it is a convenient subterfuge, and times where it may be more insidious.

Now, every time I hear the phrase specifically instructed I cast back to that moment. The silly pride has dissipated, a bit, but the discomfort has not. So it was with interest that I read about the lawyer for the killer of a Glasgow shop owner (Mr Asad Shah) who indicated he was specifically instructed to read out a statement on behalf of his client.  According to the Guardian the statement began:

My client Mr Tanveer Ahmed has specifically instructed me that today, 6 April 2016, to issue this statement to the press, the statement is in the words of my client.

I don’t think it is necessary to discuss the statement in detail. As I read it, it says Mr Ahmed believes it was necessary to kill Mr Shah because Mr Shah claimed to be a prophet. This is a different explanation for the killing than had been reported in the press. Different, if not more comforting – at least to me.  What I do want to draw attention to is that the lawyer, Mr Rafferty, indicated both that the statement was the client’s own words and that he was specifically instructed to issue the statement in full.  Assuming he chose his words carefully, it is as if he is saying, to those in the know – I have told my client not to say this but he insists, so what can I do?

I wondered, momentarily, whether Mr Ahmed understands that Mr Rafferty has sought to distance himself from his client in this way (assuming I am correct about the intention behind his words), but I am not really concerned about that here.  What really interests me is whether Mr Rafferty had to, or ought to, have issued the statement and done so with the words ‘specifically instructed’.

The Scottish rules on public statements by lawyers about court proceedings concentrate on the lawyer making clear that opinions of the client are clearly described as opinions of the client and that such statements are in the client’s interests. I am grateful for Jonathan Mitchell QC pointing me towards the Anwar decision:

If [the client’s lawyer is] of the view that it is in their client’s best interests to make public comments on court decisions in proceedings in which they have been involved, about which we ourselves say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings and, second, that their comments are not misleading. Regrettably, we do not think that those standards were met in this case. If any such comments are intended to represent nothing more than the client’s own views or reactions, whether right or wrong, justified or not – and a certain degree of latitude would ordinarily be extended to such views or reactions – that can and should be made absolutely clear.

We see here the need to be clear that the client’s opinion or view is being offered not the lawyer.  That risk is dealt with in Mr Rafferty’s statement by saying it is the client’s words and it is not edited. We can see also that the Anwar decision indicates, as do Scottish Law Society rules,  that the lawyer needs to form a prior view that such a statement is in the client’s best interests before they make it.  If I am interpreting his words fairly, by saying I am specifically instructed, Mr Rafferty appears to be indicating either that he does not believe it to be in the client’s interests to make the statement (in which case why make it?) or he does believe it to be in the client’s best interests but is undermining it’s impact with in-the-know legal audiences by saying he has advised his client against it (or something similar).  Neither position seems to me to be a strongly defensible one – but I may be missing alternative explanations.

It raises a bigger issue.  Is it the lawyer’s proper role to make legally irrelevant or legally damaging points for their client in public? One can imagine situations where it may be important to win a public relations battle as part of the conduct of the case (the cases of Katherine Gun or Clive Ponting come to mind) but that needs to be carefully balanced with one’s obligations to behave independently and (in the lexicon of the Scottish Code) honourably. Put more bluntly, one has to be on guard against being the client’ publicity tool if this conflicts with one’s role as legal representative.

Similarly, I am not at all sure one can perform either function properly whilst hiding behind the words: I am specifically instructed.  Either he has decide the statement is in his client’s interests (in which case the words are unnecessary and potentially misleading) or he has decided the statement is not in his client’s interest: in which case he should not make it.  There is a third possibility, that it is in his client’s interests to make the statement, but also in his client’s interest that he distances himself from it.  My mind begins to boggle a bit at that point.

I must make room for cock up rather than conspiracy in my analysis: perhaps he did not think about what he really meant when he said he was specifically instructed, or mispoke in the heat of the moment, but if he is trying to convey the sense that he had no choice but to issue the statement he may be misleading himself or some of his audience.  This would be most likely if the position is as in English law, and the text from Anwar and the Law Society rules suggest the position is probably the same, the lawyer does have to reach a positive view such a statement in public is in the client’s interest, it is almost never enough for a lawyer to be ‘specifically instructed’ by their client to do something. The lawyer has to decide to do it in their client’s best interests and with a careful eye on their broader duties.

 

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