CILEX backs mandatory annual ethics training

CILEX has backed the idea of mandatory annual training on ethics as part of a legal profession-wide push to put ethics at the forefront of practice.

However, it cautioned the Legal Services Board (LSB) about proposals that could impose onerous duties on frontline regulators that will deliver little more than what is currently in place.

It was responding to the LSB’s consultation, Upholding professional ethical duties, which set out a draft statutory statement of policy the oversight regulator proposed to publish setting out its expectations of how frontline regulators will improve knowledge of, and adherence to, ethical standards.

In its response CILEX said it “broadly supports the rationale for the proposals contained in the consultation paper. The LSB has a unique facilitator role to overlay expectations of embedding and upholding professional ethics in the legal profession. The risk it will have to mitigate is, though, being too attracted to a ‘one size fits all’ approach.”

The LSB itself recognised that there were many factors that could affect how ethical duties were upheld. CILEX argued that overly detailed expectations could hamper how regulators approached the particular issues facing their own communities. The draft statement also suggested a level of broad monitoring of the activities of lawyers that was, in practice, unlikely to be possible.

“There are risks that the proposals could be onerous without adding any greater benefit than is already delivered by the specialist approaches of individual frontline regulators,” CILEX said. “There is no real evidence that the proposals will deliver that anticipated benefit nor for why the current arrangements are so deficient.

“The refocus on professional ethical duties and the LSB’s unique facilitator role to drive co-ordination and improvement in this area is welcome but care in the execution of the policy will have to be handled proportionately and flexibly if any actual benefits are to be realised.”

There were undoubtedly good ideas in the consultation – such as mandatory annual training on ethics for all lawyers, which CILEX supported – but the response pointed out that many organisations already provide significant support for ethical practice.

CILEX, for example, has redeveloped the CILEX Professional Qualification to ensure that ethical behaviour is embedded from the start of the training of aspiring lawyers.

The LSB had not offered sufficient evidence to justify contemplating an equivalent approach to the senior manager regime operating in the financial services sector, which CILEX described as “an extremely onerous and prescriptive system at odds with the flexibility advocated… for the legal sector”.

CILEX said it believed that the general definition of ethical behaviour and outcomes was a useful baseline for frontline regulators and that there should be a requirement that all comply with this. However, it did not believe that specific expectations above and beyond these were merited.

Instead, CILEX said, a three-step approach should be applied:

1. Are frontline regulators enforcing the general definition of ethical behaviour?
2. Do frontline regulators have appropriate procedures in place to ensure that the outcomes can be achieved?
3. Do frontline regulators have appropriate procedures in place to address circumstances where unethical behaviour has occurred or the outcomes not complied with?

Then CILEX president Yanthé Richardson said: “It should go without saying that lawyers always have their ethical responsibilities at the forefront of their minds, but we recognise that recent history has shown this is not always the case.

“Nobody should doubt that legal regulators and organisations like CILEX are seized of the need to address the issues raised by the LSB – indeed, we have put them at the heart of the CPQ. But in the understandable push to set high expectations, the LSB needs to avoid inadvertently hampering the work to achieve them.”