Clarity, Ethics, and Responsibilities

Clarity, Ethics, and Responsibilities Presented by: Mr. Moorhead Date: 29 November 2024 Overview 1999-202? - Unfair contracts | Aggressive enforcement and making examples of litigants - Prosecutions with key evidence missing | Improper plea bargaining - Hardened experts badly briefed - Indefensible and inappropriate disclosure failures - Exploitation of legal professional privilege - Flawed and conflicted "independent" reviews - Investigations compromised by legal handling - Sanitizing reporting to the Board and beyond - Attritional mediation scheme - Scorched earth, flat earth litigation | Misleading arguments and evidence - Questionable recusal advice - NDA, SLAPPs, pleas to silence people - Claims of misconduct and covering-up by Post Office lawyers - continue to this day. FAILURES... - Misconduct? • Questionable • Misjudgment • Negligence • Cynical • Reckless • Intentional - Crime? - Ideology, psychology, social systems... To change behavior and cultures we need to think about whole systems. LECTURE I - Zeal - Human frailties and biases - Shallow Scripts - Simple signals - being commercial' - irresponsible orthodoxies - => Secrecy (exploitation of privilege and confidentiality) LECTURE II - Zeal - Human frailties and biases - Shallow Scripts - Aggression & (misleading?) interpretation - Simple signals - being commercial' - irresponsible orthodoxies - Legality illusions - => Secrecy (exploitation of privilege and confidentiality) What Dynamics Organize Legal-Ethics Systems In Practice? - In aligning the interpretation of facts, law, and the design of strategy maximally to the client's preferences, lawyers cease to maintain the integrity of their role. Dynamics of decision-making - Relational not rational - Pragmatic not analytical - Satisficing Goal-oriented - Under difficult conditions What dynamics organism legal-ethics systems in practice? - "We do not make decisions, we fight fires." HOW CAN WE CHANGE THINGS? - Enforcement and education - The courts - Risk calculus - Accountability solutions - Lucid integrity and Morality - Self-concept - Privilege Enforcement and education Regulators Bar Standards Board (BSB) Well-led Effective approach to regulation Partial Partial Council for Licensed Partial Conveyancers (CLC) Partial Costs Lawyer Board (CLSB) Sufficient Standards Sufficient CILEx Regulation (CRL) Partial Partial Faculty Office (FO) Partial Partial - Institute of Chartered Accountants in England and Wales (ICAEW) Sufficient Intellectual Property Partial Regulation Board (IPReg) Partial Partial Solicitors Regulation Sufficient Sufficient Authority (SRA In 2014, the Inns of Court College of Advocacy commissioned a report by University College London, which was funded by the Legal Education Foundation, to examine the ethical knowledge and skills acquired by new advocates. The aim of this project was to inform, through independent research and evidence, the development of ethics training by professional bodies and specialist practitioner groups. The Report's authors Professor Richard Moorhead, Catrina Denvir, Mark Sefton and Nigel Balmer deserve warm thanks for the quality of their work and the clarity with which their findings are set out. The Courts - A thorough look at how judicial practice impacts litigation ethics would be timely and helpful Risk calculus - More than merely arguable? - Reasonable? - Well-founded? - An obligation of candour Accountability solutions - Other people were doing it. The advice from outside law firms as well, [was] there's nothing strictly illegal about that ...I think that may well be correct - technically... - [But, I realized] ...illegality can come from the fact that you failed to disclose and account for this practice. - The GC should always report to the CEO. • "You keep people from acting on their own worst impulses." - • Lawyers on Boards Lawyers with signing-off function/exposure reporting requirements. Disadvantage: - Advantage: • Lawyers with aligned bonuses Poor relationships with the CEO "top-tier" outside lawyers. Accountability solutions - Building and strengthening accountability systems for legal risk in organizations and in the professions. - Better regulate in-house legal teams - Legislation? - Firmer regulation of litigation and disclosure in particular Lucid integrity and Morality - Can better models of ethics contest cynicism, expedience, sophistry? - Respect legality Integrity with facts, (law), and process - judged in context foreseeable consequences - Fearlessness and the presumption that lawyers can harm third parties ...should be removed from codes and guidance. - Lord Sumption • "Commercial parties can be most unfair and entirely unreasonable, if they can get away with it." And another thing! - Independence as behavior - Reporting up and out - Lawyers as whistleblowers - Abuse of privilege - Unreasonable contracts - A better Bar code - A single, unified code of conduct Self-concept We can delude ourselves - • 40% did not know/could not properly reason with their own professional rules.* 10% [of inhouse lawyers] "regulatory obligations had been compromised trying to meet organizational priorities.“* • *In-house solicitors thematic review - 40% [ Shakey on] professional rules. Closing - Ethics competence review - Skilled persons reports? - COLPs done properly - Encourage and sometimes require Effectiveness reviews - Apologies properly - Investigate and discipline effectively by (a) better regulator(s) Turn away from amoral, reckless harm towards scrupulous integrity Modest changes to professional rules Improved training and guidance and better ethical alignment in courts Accountability mechanisms Challenge short of investigation - Privilege, candor, corporate governance - It will require exceptional leadership and determination - Political commitment and independence A Commission to improve the honesty, integrity and effectiveness in the use of law -