On Monday the SRA Published a Paper entitled "Independence, Representation and Risk: An Empirical Exploration of the Management of Client Relationships by Large Law Firms." The Report runs to some 87 pages and consists of an analysis of a series of interterviews carried out with partners and other senior members of large law firms seeking to establish their views on a number of ethical challenges faced in the commercial environment.
The Report is a brilliant and important piece of work and should be read by all those who have a role in the management of risk in law firms. Not only does it shed light on a number of difficult areas but it also provides some level of benchmarking in relation to current practice which will be gold dust for those who are anxious to establish where their firm's approach sits amongst competitors.
The Report itself is in many ways depressing. Its relentless quotation from interviews makes clear that we as a profession have lost our way when it comes to understanding the essential building blocks that make up good ethical conduct. My head was in my hands when I read the comment from one interviewee when asked about professional independence: "Crikey, I've never even heard of the expression. Is that as an individual or as a practice?"
What the authors were not asked to do was to determine what we should do with their research. My starting point is that the Report clearly illustrates that we have over emphasised compliance at the expense of ethics. We have told people what to do but not why they are doing it. Without that essential understanding of why rules exist, then solicitors will not have a toolkit to deal with new and evolving markets and relationships.
It is clear from the Report that over the last 15 to 20 years there has been a shift in power from solicitor to client in commercial work. As a consequence, solicitors are facing a number of pressures to act in a way that raises questions as to whether the regulatory principles and professional principles contained in Section 1 of the Legal Services Act 2007 are being compromised. I should add that these shifts in power have led to many changes in behaviours that are perfectly acceptable. In other instances they are not. The difficulty is that those interviewed in the Report are operating in areas where there is no understanding of where the boundaries lie. This is not in the public interest.
The answer to all of this does not lie in more rules but by the profession shifting from compliance to ethics as the framework of practice.
Respondents reported that there has been a shift in the balance of power in the City's legal services market - from law firms to clients. This is shown in how the major corporate and financial institutions seek to impose their own terms of engagement on law firms.