Legal ethics can't be based on anecdotes

Is it possible in any useful way to ‘measure’ ethics? That was, in very rough terms, the question posed by a project I led with Christine Parker, Victoria Hinchly, David Kershaw and Soren Holm published last week by the Legal Services Board. It’s a controversial idea and one that has prompted both interest and neuralgia. Here come the regulators with more tests for us to satisfy, is what a reasonable constituency fears.

That is not what this project is about. If asked whether one can ‘measure’ right or wrong the answer is in an important sense a clear no. You cannot produce a test that says this adviser/lawyer/firm is ‘good’ or ‘bad’. It doesn’t work like that. There is no test that can be used to determine ethicality for admission, for instance.

The inadequacy of the profession’s current attempts to do this will not, I suspect, be lost on many: ethics tests on the LPC; referees reports on integrity; and the fit-and-proper-person test – they all work, right? The tacit assumption is, it does not matter: we have a rule.

Broader understanding

It is important to broaden and soften the conventional professional understanding of ethics. The traditional language of professional responsibility has tended to see the ‘ethical’ as a very individual responsibility; the unethical are seen as ‘bad apples’ to be cast out. It is probably one of the reasons why lawyers are so horrified and defensive about complaints. Being labelled unethical is a very serious black and white decision. It is the throwing of a switch and the electricity can be fatal.

Up to a point, a disciplinary system has to work this way; but it is not a good way of understanding and preventing risks to the public and clients’ interests. It is a system which is reactive and founded on complaints. Interestingly, SRA research recently found that neither clients nor, surprisingly, opposing lawyers were thought by the lawyers themselves to be very good at spotting unethical conduct. If complaints don’t provide good information on ethical risk, then are there alternatives?

The research we have conducted suggests there are. Tools have been developed in other fields which we group into the three Cs: character, capacity and context. Tools can help us understand personal values (how individualistic one is for instance); intellectual capacities (how knowledgeable and capable of moral reasoning one is); and the context within which one is operating (broadly the culture and incentives that influence us). The three Cs are interrelated, while we can understand something of how an individual’s values relate to their ethics – how likely, if you like, the apple is to get bruised – that is not the whole picture. Ambitious, individualistic individuals are more likely to be unethical but fortunately that does not mean most, many even, will be unethical. Things need to be considered in ?the round.

Sector-wide benchmark

The capacities of individuals can also be measured – ethical reasoning tests can be developed to see how good people are at dealing with ethical problems. Finally, we could – and I think should – learn a great deal more about the influences of context on ethical decision making. At the moment fixed-fee lawyers question the ethics of hourly-fee lawyers who question ‘no-win, no-fee’ lawyers who question claims managers. Barristers question... You get the picture. Who is right? It is possible, I think, to marry up information from a range of sources and start to work out a better answer than ‘my answer depends on which group I work for and how I get paid’. Personally, I suspect it is not fee arrangements per se but internal incentives (fee and billing targets; bonuses and the like) which are more important. Other things: management culture; internal ethics advice approaches and the like are also important.

It would be extremely useful to get much closer to these issues. It’s important information for regulators and for managers concerned about their firm’s reputation. Sceptics among you will be wondering: how good at identifying risks would such tools be? The honest answer is it remains to be seen but regulators need to be better able to look across the piece and see if ethics are different in different sector and different markets and target their regulatory attention accordingly. Similarly larger firms may see merit in understanding better whether parts of their organisation are more prone to risky behaviour. Even smaller firms may benefit from some ?engagement with self-assessment (voluntary schemes are used in Australia to apparently good effect). It is not, however, being suggested that firms be required to use such tools. We’re talking about research ?not regulation.

I do think, however, that this is a critical time for such work. With a very complex, legal services market opening up major differences in the types of organisation providing legal services there is a real risk of ethical beggar my neighbour. What might happen is solicitors firms assume claims managers are unethical and so cut corners. Barristers think solicitors are getting away with murder and so weaken their practices. Claims managers cast around for someone to pick on and discover costs consultants. Most of these judgements are founded on assumption and anecdote. I can tell you toe-curling stories of ethical breaches by people in most of these sectors, but what does that show us? We need evidence, not stories. ?I think it shows us we can do better.