Tag Archives: barristers

Clients’ best interests: a misunderstood and impossible duty?

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The duty to ‘act in the best interests of the client’ has always troubled me.  First, what does it really mean?  Second, who makes the ultimate judgement on whether a lawyer has, or has not, so acted?  These questions are especially important when professional judgements are evaluated with the benefit of hindsight but are made ‘in the moment’, sometimes without all the facts and always in the light of a client’s expressed and unexpressed thoughts.

But it was the view expressed in the Post Office Horizon Inquiry by one of Post Office’s external lawyers that really made me stop in my tracks: “in an adversarial system, it is my absolute duty … to act in their best interest”.  I had often heard the duty prayed in aid by solicitors seeking to justify their actions when later questioned.  However, to hear it expressed as an absolute duty (therefore overriding all other considerations) did not sit well with me.  And for it to be used to justify circumstances where – yes, admittedly with the benefit of hindsight – the client’s best interests apparently entailed knowingly, and often misleadingly, taking any and all steps to ensure that innocent individuals were financially and psychologically destroyed (and in some cases imprisoned) I simply could not process.

My interest is in regulation and professional ethics.  I do not seek to point fingers, or rush to a possibly ill-informed judgement: it will be for others to make the ultimate call on professional conduct.  What I have been keen to do, though, is to explore the basis for, and meaning of, the duty to ‘act in the best interests of the client’.  I don’t claim to have all the answers, or to have been able to consider all the nuances of the circumstances and pressures in which that duty must be discharged.  But I have sought to unpack the many facets of the duty so that the profession, its clients, its regulators and civil society can have a more transparent conversation about what it should mean and how it should be expected to play out.  As part of the Independent Review of Legal Services Regulation (IRLSR), I have therefore published a working paper to explore the issues and invite discussion.  I have done this in part to provide a more common language for the discussion of ‘best interests’ and in part to counter the assertion that the duty always prevails and that if a lawyer does what the client asks they must necessarily be treated as having acted in their best interests.

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“Are you proud to be a lawyer?”

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Once, this was not a difficult question to answer.  When I became a barrister in 1977, my answer would have been immediate and unequivocal.  Like many of my generation, I was the first in the family to go to university; and then to gain a legal qualification was a matter of great pride.

But, almost 50 years on, things are different.  Lawyers are no longer held in such high esteem (either collectively or, often, individually); media stories abound of lawyers who are said to have ‘crossed an ethical line’; and the public brush of concern tars everyone.  I find the question more difficult (and, to some degree, uncomfortable) these days.

So is current sentiment just an enhanced reflection of longstanding animosity towards the profession collectively?  Is this tide irreversible?  I’d like to think so, but it may not be easy. Continue reading →

CMA market study and the pressure for regulatory change

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The Competition & Markets Authority (CMA) published the final report of its market study into legal services in December 2016.  At 285 pages (and a further 233 pages of appendices), it is not a light read!  Nevertheless, it is worthwhile – though for those with less time or stamina, the executive summary on pages 4-19 will give a flavour of the review’s scope, conclusions and recommendations.  It should also be emphasised that the scope of the study was intentionally limited to the experiences of individual consumers and small businesses, and that criminal legal services were excluded.  The study is not therefore a review of the whole legal services sector.

The headline conclusion from the review is that the legal services sector is not working well for individual consumers and small businesses, largely because those consumers lack the experience and information they need to understand their needs, to make informed choices, and to engage confidently with providers of legal services.  The CMA also concluded that these challenges are likely to increase over time and make the current regulatory framework unsustainable in the long run (especially since, in the CMA’s judgement, that framework also does not meet the principle of targeted regulation).

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