Jonathan Hodge discusses how junior lawyers can guard against unethical behaviour in the legal profession.
The Junior Lawyers’ Division of the Law Society represents LPC students, trainees, solicitor apprentices, and solicitors who are fewer than six years’ qualified. As a part of the legal community, those the JLD represent share many issues which permeate the profession. But, perhaps as a result of their relative inexperience, junior lawyers may struggle more readily with some issues than their non-junior counterparts.
As a slightly older junior lawyer (I qualified in 2015 at 29), I have not found transitioning from a generic professional environment into the legal professional environment to be particularly difficult. Deadlines are deadlines, and work is work. But what does distinguish the legal profession is the requirement for ethical integrity – and not just that it is expected, that it is demanded by our regulator.
And then it goes further. As solicitors, we have an obligation to report other solicitors for their conduct if it falls below the standards required. Well, that could be awkward. Take the following scenarios: the other side has lied in a witness statement. They’ve written an email reframing the historical background to a matter, but it is demonstrably untrue. The previous solicitor with conduct had emailed the clients telling them the progress of their matter was at stage C, when in fact it wasn’t even yet at B.
But then you ask yourself, so brazen are these unethical acts: is this definitely untrue? Did I misremember the facts? Am I warping them because I’m biased? Was the email simply mistaken?
You make excuses to forget about the issues – they’re not billable anyway, you have urgent work to do, the SRA has bigger fish to fry – all because you do not have the courage of your convictions. And the reason you don’t is often because you are not confident in your opinions, since you haven’t yet acquired the requisite experience from a foundation of outcomes in which you learned that you were correct (or incorrect) to act in a given dilemma.
The above scenarios are not fictional; they are all situations I have faced. As a slightly older junior lawyer I was comfortable contacting the SRA for guidance. But I couldn’t help but think of the younger lawyers facing similar situations. I don’t know what you were like at 23 years’ old, but I know I was terrified of making a mistake when making the coffees; let alone reporting another professional for misconduct.
A solution to this might be for us to become more transparent about reporting as a community. The SRA is not asking for everyone to turn into Serpico. But if we don’t guard our own profession against unethical behaviour, we will face an unconscious erosion of those values that distinguish us – and are the reason why we are trusted by the courts with taking our clients’ most secret and valuable information, and protecting their substantive right of privilege.
If you are a partner of a firm, consider introducing engaging training sessions so that reporting obligations lose some of their esoteric taboo. It doesn’t have to be intimidating.
If you are a junior lawyer and you aren’t sure about something which you think might have been unethical, your first port of call is a more senior colleague you trust (ideally someone whose role includes your supervision). Firstly, a problem shared is a problem halved. Secondly, if you don’t talk to someone and don’t report the problem, and then it later becomes apparent that you should have done so, you will probably face sole liability for deciding to keep it to yourself. So practically, it’s good to talk.
If you don’t feel that you can raise it with a senior colleague, for whatever reason, paragraph 7.7 of the Solicitors Individual Code of Conduct (the ‘Code’) places an obligation on you to tell the SRA directly about matters you believe are capable of amounting to a serious breach by another solicitor. Paragraph 2.2 of the SRA’s enforcement strategy (“Factors which affect our view of seriousness”) will help you to decide if what’s been done is “serious”. While certain types of allegations are inherently more serious than others, even if you are unsure you must bring your suspicions to the SRA to allow them to investigate (paragraph 7.8 of the Code) in any event.
Don’t forget, once you’ve reported your concerns it’s no longer your problem to worry about – it’s the unethical lawyer’s. And it’s the SRA’s to deal with.
This article was first published on 1 June 2020 by The Lawyer and is reproduced by kind permission.
Jonathan Hodge is a commercial disputes solicitor at Aquabridge Law in Chelmsford, and a member of the Executive Committee of the Junior Lawyers’ Division of the Law Society.