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UK law firms should take ethical monitoring more seriously

Data on causes of ethical behaviour can predict future ethical lapses, research suggests

5 September 2012

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The growing recognition by lawyers of the importance of upholding ethics is matched by a lack of scientific data about how this can be managed and monitored, academic research has found.

Structural changes to the UK legal services sector call for greater emphasis on the role of professional ethics and the development of specific tracking tools for stakeholders, UCL ethics professor Richard Moorhead said in a report commissioned by the Legal Services Board.

“Systematic understanding of ethics in the legal services market is remarkably thin. Debate about ethics is often based on anecdote and argument and where it is evidenced at all it usually derives from data on complaints and regulatory enforcement,” the report notes.

The liberalisation of the UK legal services market has prompted concerns over a drop in professional standards as new non-lawyer owned businesses start offering legal services.

But Moorhead said the issue isn’t solely about new entrants and affects larger commercial firms that have traditionally been seen as able to behave more ethically.

“There is a growing need to think longer and harder about how the profession maintains its mandate as protector of the administration of justice,” he said. “That after all is ultimately the only reason for giving lawyers professional status at all.”

The Designing Ethics Indicators for Legal Services Provision report advocates creating a dashboard of indicators looking at behaviour as well as at character values, context and individual ethical capacity – the ‘3Cs’.

This would assess the disposition of individual providers to regard something as ethical or unethical, what incentives are in place within the infrastructure in which individuals work, including the prevalent culture of a firm or market, and how individuals and organisations recognise and reason on decisions.

“It is not easy, even possible in any definitive sense, to ‘measure’ ethics but it is possible to develop deeper understandings which can aid firms as they manage their own service and regulators as they seek to protect the public interest,” Moorhead said in his blog.

“Tools can be developed that marry indicators of the ethicality of behaviour with a deeper understanding of the three Cs: character (our own values); context (the incentives and cultures within legal service providers, markets and professions); and capacity (knowledge and reasoning abilities in relation to ethical problems).”

The approach suggested by the report includes setting up interviews with a representative selection of practitioners to identify ethical issues they regard as important before collecting data and indicators on the 3Cs via further surveys of the profession, clients and regulators.

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