Young voices

If the media is to be believed, to describe a person as a ‘millennial’ is to suggest that they harbour a mild obsession with brunches, social media and irritating Piers Morgan. In reality, a millennial is simply a fancy term used to describe anyone aged between the ages of 25 and 39. This means that new entrants to the legal profession are now more likely to be millennials: the average age of a solicitor admitted to the roll is 29. (Although, of course, we live in increasingly diverse times, so you can no longer assume that new recruits to the legal profession are ‘young’.)

Junior lawyers may feel afraid to question their supervisors for fear of repercussions

This is an interesting challenge, given the characteristics that millennials possess. Having been born into an environment of immediacy, they thrive on short-term objectives and new experiences – they are often thought of as impatient. They are not solely interested in financial incentives in their careers: many seek employment with firms that seek to improve access to justice by offering pro bono work or assist impoverished members of society. This ethical focus should not be surprising. Millennials often have stout ethical maxims in their day-to-day lives, whether that is refusing to engage with businesses who do not pay their staff a living wage, practising vegetarian diets or avoiding non-recyclable plastics.

By 2025, 75% of the global workforce will be millennials, rocketing them into the driving seats of the profession and ushering in a new age of expectations and ethical approaches to legal practice. Until then, what challenges will this influx of millennial solicitors cause the profession?

The clash

Senior lawyers tend to consider millennials incapable of making the ‘right decision’ ethically because they lack the experience (and therefore knowledge) to do so. This can often be interpreted by millennial lawyers as “I’m clever, you’re dumb, I’m right, you’re wrong”. The ethical grounding of millennial lawyers may mean they truly want to make the right decisions for the right reasons (even if this comes at a cost to their firm or themselves), but friction with their senior colleagues may actually make them less likely to raise ethical concerns.

Millennials often form the view that their supervisors’ experience plays against them, blinding them with familiarity and making it difficult for them to see past any ethical bad habits they have picked up. They think more experienced solicitors miss the point of ethics-based regulation, and simply aim to keep out of trouble with the regulator, rather than behaving ethically in general.

This rift can be dangerous, because it creates a situation where neither junior nor senior solicitors feel capable of discussing ethics, which may result in decision-making that adversely impacts clients. And if individuals feel unable to discuss their potential concerns, their firm risks these serious issues being hidden from it, and perhaps becoming much worse.

The pressure

Several controversial strike-offs have been handed down from the Solicitors Disciplinary Tribunal (SDT) involving millennials whose decision-making process had been influenced by external variables such as pressure from their supervisors, mental health concerns, or toxic work environments.

The message from the SDT is clear: inexperience is no excuse for dishonesty

It is easy to see how this can happen. Junior lawyers may feel afraid to question their supervisors for fear of repercussions. While some firms welcome disclosure of potential issues at an early stage, others have a toxic work environment where mistakes are unforgiveable black marks; decisions that protect the firm are to be made even if they harm the client. It is much easier to justify an unethical decision in an environment where “everyone else does it” or where “I was just doing what I was told”. Regardless, the message from the SDT is clear: inexperience is no excuse for dishonesty.

Most fee-earners at a firm can exert some amount of influence. The number of years a lawyer has practised increases their standing within a firm and means their directions may well be complied with by junior staff, unquestioned. A trainee solicitor is less likely to feel comfortable challenging the direction of a senior partner than a senior associate or fellow partner would be.

Firms which foster toxic environments where management and senior solicitors can bully junior colleagues out of making independent ethical decisions should be cautious. If they are not, they may well be in breach of principles 2 and 8 of the SRA Code of Conduct 2011. While the Solicitors Regulation Authority has not yet brought any proceedings in relation to such breaches, there is nothing to say it will not in the future, particularly following the outrage accompanying the recent SDT decisions.

Possible solutions

An open and non-toxic work environment goes a long way to ensuring that all solicitors feel able to discuss their concerns and sound out their ethical decision-making process. Solicitors, particularly junior solicitors, should not be made to feel that they need to hide their mistakes. But this is easier said than done when the illusion of the legal profession is that lawyers are inhuman and incapable of mistakes.

So how can you achieve this in practice?

• Provide solid ethics training to all members of staff

• Make sure your compliance officer for legal practice (COLP) is strong and impartial
  Simply having an ethical sounding board can make a big difference for millennial lawyers, offering them the chance to speak impartially with a neutral third party about any decision they need to make, particularly if it conflicts with a decision of one of their superiors. This can, of course, be difficult in smaller firms, where the COLP may also be the managing partner.

• Encourage an open dialogue regarding mistakes
  Most firms would prefer to know about a mistake on a file at an early stage so that they and their insurer can take proactive steps to resolve the issue. However, at firms where (even unintentionally) mistakes are taboo, fee-earners (junior solicitors particularly) can feel they have to hide their errors. This can result in the issue becoming compounded, or make the fee-earner feel they should take steps to cover up their mistake. I once heard a litigation partner tell a very upset associate: “Thank you for telling me. Mistakes happen, that is what insurance is for.” This kind of open dialogue ensures that junior lawyers feel comfortable talking to management. We’re all human, after all.

• If you manage junior solicitors, encourage them to raise ethical queries
  Do not dismiss such queries as challenges to your authority. Appreciate the external factors that may influence a millennial’s decision-making process, and be aware of when a millennial may feel uncomfortable broaching the subject. If you disagree with their point of view, fully explain why. Be their mentor, not their boss.

This article finishes with a case study (see below) which highlights the complexity faced by junior solicitors in making ethical decisions. While the possible solution may be clear to you, remember that a junior solicitor may fear losing their job, with potentially devastating financial impacts, particularly if they have student debt to repay. They may be concerned about the stigma of leaving a firm midway through their training contract. And unethical behaviour may well also be commonplace at the firm, making it much harder for the individual to challenge any specific unethical decision.