Is it time for an ethical reset?

This week I gave the annual City of London Law Society lecture in Gray's Inn. Chaired by Sir Peter Gross and followed by discussants, Stephen Kenny KC and Julie Norris of Kingsley Napley.

This talk is a highly abridged version of the the first two of my Hamlyn Lectures (click through to read the full text of those).

The question before us tonight is: Do we need an ethical reset?

I think we do, but before saying why, I want to acknowledge that many of you—experienced, dedicated lawyers and students—may feel scrutinised or defensive when the subject turns to ethical failures. We all feel the “flight or fight response” when criticism is levelled at our own kind. And we are very tempted indeed by the idea that ethics is about someone else, a bad apple, or – if you have watched one or two of the PO lawyers - a total idiot.

Indeed, being ethical is a bit like being a good driver, we all think we are above average, when sometimes we drive badly. Indeed, ethics is not only, or at least not mainly, about bad apples or total idiots. It is about all of us. The bad decisions we make in difficult situations. The mistakes we overcompensate for. The looking the other way or shaving of our integrity that leads to professional danger.

To keep going with the driving analogy: we speed a bit, we gamble on that amber, sometimes we might slip through a red, or take that bend recklessly.

That tendency to look the other way, and the shaving of integrity, is leading the profession closer and closer to political controversy. It is why Parliament’s Security Committee raised concerns that some lawyers’ work for Oligarchs threatens national security. It is why a BigLaw partner appeared before a select committee discussing whether he might have perverted the course of justice by using an NDA. It is why SLAPPs, regardless of how common you think they are, raise real ethics issues as well as structural issues that are not just the fault of individual firms or lawyers.

But before I get going, I should emphasise what kind of ethics I am talking about. Mainly I am interested in professional misconduct. There is a grey zone between misconduct and professional disrepute where the political debate is, and I think what I have to say is relevant to that too. Incompetence also plays an important part, often prefiguring ethical misconduct. But it is knowing or reckless wrongdoing that is my real concern.

I should address one more thing before we get going. What is a reset?

I don’t know.

I quite like its constructive ambiguity. I could argue for a reset that is modest, or for radical change, or for my preferred option of incremental but concerted change over time. I have thoughts about how to do that but not presecriptions.

Tonight I have been asked to focus on whether there is a problem not how to address it.

In offering my views, I am going to talk mainly about the Post office Scandal.

There is a temptation to dismiss the Post Office Scandal as an aberration, a one off. I think that is a mistake. It was hundreds of cases, over many years, across separate groups of lawyers, senior and junior, in-house and private practice, KCs and GCs. That spread across time, case-types, and different lawyers, marks it out as emblematic of a broader problem.

History kept repeating itself, however illustrious the lawyers.

That suggests it is about culture.

At the Scandal’s heart was routinely aggressive lawyering.

Aggressive lawyering involves choices that are arguably legal. Advice or actions that are permissible in the theory, but probably improper, misleading, or unlawful in execution, in context. And what the Scandal shows us is how this aggression can and does degrade legality, integrity, and honesty. And how it can and does probably lead to professional misconduct and even, potentially, sometimes, crime.

I think three interconnected factors drive the problem:

Firstly, Lawyers’ human, psychological frailties magnify vulnerability to wrongdoing.

Secondly, orthodox but unbalanced ideas about professional partisanship drive irresponsible practices.

Thirdly, these orthodoxies contribute to institutional pollution driving cover-ups, deliberate concealment, half-truths, and the creation of what I call “legality illusions”.

The first reason we need a reset is simple: legal aggression, saying something is arguably legal when it is probably not, or something is arguably true
when it is probably not. It is permitted in court – where, if arms are equal, it can be challenged - but can harm the rule of law beyond it.

Let me illustrate with examples from the Post Office story:

· Lawyers drafted fundamentally unfair contracts forcing sub-postmasters to accept debts they did not owe or be thrown out of their branches

· Debts were pursued to target individuals and make examples of them.

· Prosecutions were run without key evidence

· Plea bargaining was used improperly.

· Expert evidence was tainted by lawyer impropriety

· Critical, and supposedly independent advice and review, was undermined by at least one fatal conflict of interest

· Adverse evidence was suppressed using indefensible and spurious grounds.

· Legal professional privilege was abused and exploited.

· Litigation was conducted on a “scorched earth” and “flat earth” basis, littered with misleading arguments and evidence.

I could go on but will not.

It is likely that not all the failures I list are potential misconduct, but many are. Criminal proceedings are probably being contemplated for some. Aggression, in all likelihood, repeatedly led to serious misconduct.

Frailty

Why can lawyers lead themselves astray in this way?

The first reason lies in the frailty of the professional ‘self-concept’—a belief that, as a professional, one is ethically superior. Research shows that this elevated self-concept can be problematic. Psychologically, in the lab, thinking of oneself as a professional makes one more likely to lie and cheat and makes our lies bigger.

The explanation is we grant ourselves a moral license; we think of ourselves as “better” as professionals. When doing a difficult job in tricky situations, we cut ourselves some slack.

The Inquiry is littered with examples of lawyers saying in response to Counsel’s careful questions that build towards some alleged impropriety, What I would have done was X… Only for it to become quite clear that X is not what they did. Not at all. Sometimes they did the opposite. They imagined themselves as more ethical than they were.

Zeal and Irresponsible Orthodoxies

This leads us directly to the second underlying problem: the dangerous logic of zealous lawyering, particularly, I might add, when applied behind the scenes, when advising or acting – if I can give it a shorthand, in the boardroom, not the courtroom.

The traditional ideology of lawyering—rests on three pillars:

1. Zealous partisanship: Maximising the client’s interests.

2. Neutrality: The lawyer’s own morality must not impede doing what the client wants. And,

3. Non-accountability: The lawyer is not responsible for the client’s instructions or desired outcomes.

Many of you will be thinking, what’s wrong with that? That sounds like what I believe in. With some important modifications, and nuance, I would agree. But without finesse or restraint lawyers can become too quick to persuade themselves zeal, neutrality and non-accountability allows them to rush past legitimate restraints—forgetting their Codes say client interests do not come first or the specific obligation that integrity demands lawyers take “particular care not to mislead”.

Let me show you what I mean with an example.

Alistair Brett, in-house at The Times, advised a journalist, Patrick Foster, when Foster confessed to criminally hacking a policeman’s email account to expose him as the anonymous blogger (”Nightjack”).

Brett treated the criminal hacking as confidential and privileged. And thinking that could be kept secret helped Foster get the story out. He suggested Foster should go through the motions of identifying Nightjack “legitimately” from public sources. This was easy once he knew who the target was.

Lord Justice Leveson cross-examined Mr Brett on it at his Hacking Inquiry. He called this a phoney process. I agree but I can also see an argument that the Times could defend the policeman, DC Horton’s, privacy claim on the basis he could be identified from public sources and so his identity was not private.

Trouble was it was the start of a slippery slope. Its execution went beyond mere phoniness.

Horton’s solicitors asserted Foster had a history of hacking. Brett said the suggestion Horton had been identified because of a history of hacking was baseless. And Foster’s affidavit in the proceedings that followed, made no mention of hacking. It said he began the process of identification legitimately. That was untrue: he began with hacking.

The SDT, and the High Court on appeal, had no difficulty saying Brett had been recklessly misleading.

The lesson is clear: zeal, a questionable but arguable claim, aggression plus over-zealous application, the slanting of facts and arguments, led to professional misconduct.

Psychological Frailties and Fearlessness

When training lawyers, I show them Brett’s cross-examination by Leveson. He seems to come late to the realisation he is in trouble and never accepted he did anything wrong. There are various reasons for that, but one is probably his self-concept. We are brilliant at persuading ourselves we did nothing wrong.

And our all too human modes of thinking amplify our attraction to zeal in a host of ways. The evidence shows we are demonstrably prone to team loyalty bias: subconsciously we exaggerate the prospects of success and prospective gains for clients. Moral intensification makes us less ethical. If our client is a hallowed institution, or we perceive our opponent as a “thief and liar,” we are more likely to rationalise our misdeeds. Slippery slopes cloud our judgment: once we have started to think we can ignore (say) hacking we slip into concealing it and then into pretending to others it never happened. Professional rhetoric about fearlessness promotes zeal as selfless and heroic, but there is psychological evidence that it is associated with self-regard not selfless service of the client.

The central problem is not that zeal and fearlessness are wrong but that they can push the central restraints (such as integrity and the interests of justice) to the back of or out of our minds.

Financial incentives (often) and the many ways our minds incline us towards giving the clients what they want, all add grease to the slippery slope.

Institutional Pollution and Legality Illusions

These individual frailties and logics play out within organisations.

Clients want simple signals, permission, validation—they want to be told: “you can do this, it is lawful”. Lawyers can be managed towards or expected to provide a slanted signal to meet that desire.

If a lawyer exaggerates their advice that X is legal (when it probably is not), clients take bad, risky, or low-integrity decisions. Sometimes on purpose. Sometimes they are led astray. This pressure is magnified by the expectation for lawyers to be “commercial” or “business partners”. Largely these are good things but being commercial can also mean flexing to be more helpful than one ought to be, turning a blind eye or greasing the truth through optimistic construal of facts or risks.

Optimistic construals can take on a life of their own.

In the Post Office for instance, a review of prosecutions started out saying PO prosecutions were potentially profoundly flawed ended up being represented as sayingthere is nothing to suggest any of our convictions were unsafe.

The road to something which, if not a lie, was patently untrue, was paved with a number of tactics or orthodoxies., such as .

A world shaped by arguments more than evidence: witness statements and entire case strategies reflected what the Post Office wanted to be true, not what was true. And,

Zeal not independence dominating decision-making: Disclosure was repeatedly refused on grounds ranging through the gamut of the unreasonable, through barely arguable and into the astonishing.

Privilege was exploited and abused in a similar vein. The fear of creating, or discovering, adverse evidence prompted what might yet, in professional disciplinary proceedings, be framed as willing blindness. Telling ‘the business’ not to investigate patent risks for fear of discovering adverse facts, was one of several things that polluted POL’s own thinking and evidence base.

When adverse facts arose they had a way of disappearing, of being explained away as irrelevant, or not within that lawyer’s remit, or as not requiring investigation, or of being euphemised. An issue of shredding emerged but was buried as a ‘cultural issue’.

The reasons why the (perhaps unfairly notorious) expert Gareth Jenkins had given misleading evidence in criminal proceedings were never investigated. Turns out one reason may have been the lawyer doing the investigating had helped make his evidence misleading.

The Legality Illusion

The orthodoxies created what I call legality illusions: in essence legally informed or created untruths.

Horizon is systematically sound.

There is nothing to suggest any conviction is unsafe

Remote access is not possible (it was, the system had a secret back door)

Our reason for using but not calling a tainted witness are given less than candidly and possibly misleadingly. Lawyers seem to have either directly or through their complicity, knowingly or recklessly, helped build these untruths.

This is not, I think, a problem confined to the PO cases.

Whilst we have less knowledge about the precise responsibilities of individual lawyers, I would argue many Bank’s “wire-stripping” Middle Eastern transactions to bypass US sanctions were built on legality illusions. I would argue the same might be true of Lehman’s repo transactions. Or the papering of Qatari funds by Barclays’ lawyers. Quite often so-called independent investigations bear the hallmarks of a little too much rose and tint. Advice given for public, and political consumption, too may have something of the legality illusion about it.

Routes Back to Proper Professionalism

Now these latter examples lead me back to an important but subtle point.

Actions are taken under pressure, with limited time, and sometimes depleted cognitive resources. Blame may lie with the client or the lawyer or the situation. Sometimes no one is responsible or sometimes it is artfully managed to ensure mutual irresponsibility. Properly scrutinised such examples may include conduct: permissible or negligent, as well as reckless or deliberate misconduct.

There are reasons to think the problems are significant.

SRA thematic reviews reveal about 10% of in-house lawyers admitting being pressured into breaking their rules. The SRA’s review of professional obligations suggested solicitors’ (and COLPs) knowledge of their own ethical rules was poor. Work I did several years ago for the Inns of Court College of Advocacy, suggest the same is true for barristers once admitted. No one has yet been brave enough to test for improvement.

I have engaged with lawyers expected to support the hiding of improper payments; to help paper the inflation of sales figures; to manipulate documents and their witnessing; to delete or leave documents out of disclosure exercises; to evidence events in misleading ways; and to misrepresent or lie about legal or factual positions to counter-parties. With some difficulty, they resisted such attempts.

In a profession of high standards, we have to think about avoiding errors, resisting pressure subtle and egregious, and the tricky territory in between where lines are drawn. We have to think about practicalities, about execution more than theory.

If lawyers are being pushed or pushing themselves to the line; practitioners have to be confident of their own professional obligations. I am sorry to say my impression that ethics confidence is not something I see much of. It is not often prioritised, practised, or talked about.

The cultures we create and work in can, if faulty, push us into, incline us into, errors of a particular kind. This culture comes from giving the client what they want, but also from other human foibles, such as vanity, hubris, or complacency.

Let me illustrate the culture point with two quotes from the chambers of leading barristers:] One KC marketed his services until recently through a client testimonial that praised him “as a steam roller that crushes anything getting in his way.” Another was said to be able to “hold the board of a very large company in the palm of his hand”. He was also said to be able to, “…turn a pile of refuse into something that looks great; it’s an absolute art form.” A Midas with the brown stuff.

Now I could take you through what each of these lawyers did in the POL and suggest one of two things: they made mistakes, or they committed misconduct, or a combination of the two. Let’s assume it was simply that they were human and made mistakes.

If they were steam-rollering and midasing whilst making these mistakes they were doing so with hundreds of miscarriages of justice at stake. Real lives, rendered wortheless. Their mistakes tended to harm those people but also to benefit their clients. There is a point at which the system is what the system does. It bullied people, it toyed with the truth. You become what you sell.

You can argue, of course, that midasing and steam-rollering is in principle within the rules, some of you will argue it is demanded by the rules. But the central point is always this: whatever the position in theory, it is the execution that matters. To paraphrase a phrase misattributed to Peter Drucker, perhaps culture eats ethics for lunch.

If you start off selling myths and machismo, if you do not understand fully your own professional obligations, if you do not have effective ways of managing the pressures and stresses of you and your team, if you do not talk about, learn about, practice ethics, your culture is in trouble.

I am going to end with one final, rather sad but apparently common example. AI – the hallucination cases - I keep seeing - seem to be marked by one phenomenon that stands out. The lawyers involved have often denied, looked away when red flags are raised, buried their heads in the sand. Sometimes it looks like they have lied.

They needed to reset. Do you? Do your colleagues? Or are you all, are we all, just above average drivers?

If I can precis Stephen and Julie’s views, they accepted (with some circumspection) there is a need for a reset, and thought it could be achieved by training and improving culture. You can read my thoughts on how to change things in the third Hamlyn lecture, which can be viewed here or read from p.47 onwards here.

I said in the questions that I did not think the substance of the rules needed radical change but training was not going to be enough on its own.