Recognising Ethical Standards

In the normal course of things, these column inches are given over to consideration of knotty ethical issues confronting solicitors, either in their day-to-day practices or more broadly. However, given the ongoing high rates of enforcement activity by the Solicitors Regulation Authority (SRA) against firms and solicitors of all stripes – not to mention the recent overhaul of the professional conduct rules and increased emphasis on personal and professional ethical standards – there have been (and remain) good reasons to focus on the practical issues around conduct and professionalism. There has been a definite uptick in recent years in ‘bad news’ stories, particularly in relation to some sanctions imposed on solicitors and firms by the SRA and the Solicitors Disciplinary Tribunal (SDT). In some cases, those stories are down to overtly unacceptable conduct that clearly has no place in the profession. In others, however, the issues are less clear cut. Coupled with a widespread lack of financial resource (particularly insurance cover) among firms and individuals to properly defend an SRA investigation or prosecution, cases can lead to yet more negative coverage about solicitors and their work.

This month, however, rather than explore one of the plethora of burning ethical issues facing the profession, I have decided to take a different tack and to celebrate the high ethical and professional standards already pervasive in the profession. What follows is a nod, shown through the prism of a single high-profile case, to the many thousands of ‘good news’ stories out there about solicitors, and lawyers more broadly, conducting themselves to the highest ethical standards. Every day practitioners are considering and weighing up their professional conduct obligations to achieve the tightrope-walk of duties involved in upholding the proper administration of justice. Often in the most trying circumstances, they assess the interests of their clients and the reputation of the profession in a way that will be familiar to thousands in their daily practice.

THE EVIDENCE

The trade press recently carried coverage of judicial praise from the sitting judge in the trials to the legal teams who acted in four separate criminal trials of serial rapist Reynhard Sinaga. The trials, for which reporting restrictions have only recently been lifted, began in the summer of 2018, with sentencing hearings concluding in January of this year. Sinaga was convicted of 136 counts of rape, eight counts of attempted rape, 14 counts of sexual assault and one count of assault by penetration against 48 victims and sentenced to 30 years in jail. His modus operandi was to lure his victims to his flat in Manchester, drug them using drinks infused with the drug GHB (or similar) and then to use his mobile phone to record himself carrying out the sexual assaults, attempted rapes and rapes. In sentencing, the judge in the case, Her Honour Judge Goddard QC, said she was “unaware” of any other case of sexual offending “of this scale or magnitude”. She recognised the work of the police and the Crown Prosecution Service on an investigation that “involved hundreds of hours of viewing footage of a most unpleasant nature and the painstaking tracing of the victims”. She then moved on to “thank all counsel and the legal teams on both sides for their executive assistance throughout”, specifically thanking “the defence case worker who has assiduously attended to her duties in representing the defendant throughout.”

It is perhaps this last judicial ‘tip of the cap’ that is of greatest significance when we consider the ethical standards we expect of ourselves and our solicitor colleagues. In the same sentencing hearing, Sinaga’s defence was described by HHJ Goddard QC, in sentencing, as “feeble”. According to the judge, he had “persisted in [...] denials of guilt in spite of the overwhelming nature of the evidence [...] and the previous jury verdicts.” To those unfamiliar with the role of a defendant’s lawyers in such proceedings, such a description might be interpreted as suggesting it was not proper for the lawyers to put it to the court. As litigators will be acutely aware however, that is far from the case. It is not the lawyer’s role to determine the content of a client’s defence; it is to present a client’s case to the tribunal on instructions and within the strict bounds of professional conduct obligations. These include ensuring the client is properly advised as to the prospects of such a defence succeeding, notwithstanding the weakness of the evidence relied on by the client. This is, therefore, an exemplar which does no more than show the legal system working as it should do, with defence solicitors and counsel properly, robustly and independently presenting their client’s instructed case to the court, albeit apparently in the face of evidence, and allowing the jury to reach its decision based on all the evidence and any relevant directions from the judge.

HIGH STANDARDS

Without in any way wishing to trivialise Sinaga’s crimes – less still the terrible suffering of his victims – it is likely that, for many criminal practitioners out there, the essential issues arising in this sort of case will feel unremarkable, perhaps even run of the mill. In my view however, the trials – with their deeply disturbing facts, evidence and magnitude of offending – offer a neat distillation and snapshot of the pervasiveness of high ethical and professional standards shown by lawyers when acting in such an emotionally distressing and disturbing series of trials. Dealing with multiple allegations – and victims – of violent sexual offending of this sort, requires a level of professionalism that we should celebrate. It is right to note that some victims’ charities have criticised comments made by Sinaga’s counsel in submissions on sentence.

The criticism relates, in particular, to the suggestion made on behalf of the defendant that the offences were not violent, apparently by dint of the fact that Sinaga’s victims were unconscious at the time the sexual assaults took place. This article in no way seeks to deny the validity of those criticisms.

The fact that these sorts of issues have arisen only goes to underline the extreme sensitivity of the circumstances the legal teams found themselves operating in and, therefore, the significance of the challenge of maintaining the highest ethical standards in their work. In times in which the most recent IPSO Mori Veracity Index that included lawyers (in 2017) suggested that only 54% could be trusted to tell the truth, we should take time to recognise that our own experience at work very often tells us a different story about the character and ethical standards of those with whom we share the privilege of calling ourselves solicitors.

Gideon Habel is a partner and head of Leigh Day’s regulatory and disciplinary team leighday.co.uk