The public and consumers of legal services rightly expect legal professionals to act competently, given that they often manage life changing situations on their behalf, whether it’s moving homes, going through a divorce, or dealing with assets following the death of a loved one.
Competence is something that our oversight regulator, the Legal Services Board, certainly expects to inform our regulatory approach, ensuring standards of competence are maintained across the profession, and taking suitable remedial action where they are not met.
Keeping up to date with legal and regulatory developments can help prevent legal professionals from making mistakes, such as giving incorrect advice and missing court deadlines, and is also essential to upholding public trust and confidence in the legal profession. This value is enshrined in Principle 5 of the CILEX Code of Conduct, which requires all those we regulate to maintain a high level of competence in their work and ensure their legal knowledge is current and of sufficient depth for their role.
When is enforcement necessary?
While enhanced supervision and targeted guidance and support may be the preferred option in addressing areas of poor competence, enforcement and disciplinary action is sometimes necessary. This is usually where the mistake is either caused or followed by a serious breach of the Code that risks harming the public, consumers of legal services or the reputation of the profession.
Any disciplinary action we take is typically focused on the behaviours leading up and subsequent to any mistakes, rather than whether or not work has been carried out to the correct standard. We expect the regulated person to demonstrate compliance with their regulatory obligations, honesty, integrity and transparency where a mistake is made, including undertaking remedial or preventative measures to address the mistake.
That said, mistakes have led to some of the more serious misconduct cases that we have seen in recent years, where certain legal professionals have gone beyond the initial error and demonstrated a conscious element of wrongdoing by acting dishonestly to cover up mistakes – for example backdating client letters, forging signatures, and providing false information about the progression of a case. This departure from the probity and trustworthiness required of lawyers has invariably resulted in the CILEX members in question being excluded from CILEx membership.
All too often the regulated person has offered the explanation of workplace pressures in mitigation of their conduct. These pressures are well documented within the legal profession and in recent high-profile cases: long hours, excessive workloads, high billing targets, challenging clients and situations, as well as the pressure to excel and prove themselves to their employers and peers.
This issue is especially relevant to those starting out in the profession; however, we have also encountered similar explanations from more experienced individuals with unblemished records. In one example, a regulated person with an extensive legal career forgot to obtain a client’s signature in the middle of an excessive workload and tight deadlines. In a misguided effort to maintain a good impression within the firm and progress the client’s case, they signed a document as though they were the client and sent a copy to the court.
The impact of workplace culture
What is clear from such cases is that an individual’s competence alone is insufficient to prevent mistakes occurring; workplace pressures, poor support structures and inadequate supervision can lead to mistakes and impact on a legal professional’s ability to deliver competent legal services. Even worse, a blame and/or counter-inclusive culture within a firm can create pressures to take shortcuts and act unethically by covering up problems.
Not only can this lead to poor outcomes for clients, it also impacts on the professionals’ wellbeing and mental health. Research carried out by LawCare in 2021 found that only 48% of those in a position of management or supervisory capacity had received relevant training. It also found an association between a high workload, long working hours and a psychologically unsafe environment, and increased levels of burnout.
Workplace culture has to date been an insufficient mitigating factor to prevent a finding of dishonesty, or a sanction of exclusion. The individual’s state of mind and the nature and extent of their wrongdoing are key in determining the outcome. It remains to be seen whether this approach will change as more cases of this nature emerge.
This is not just a regulatory issue. As much as legal professionals have a duty to maintain competence and high standards, it is also incumbent on firms to deliver adequate training and continuously monitor and assess staff workloads and capacity to do the work, as well as their competencies, which may evolve over time. The focus should not just be on progressing client matters. Staff should be supported and encouraged to speak up when things go wrong and admit mistakes.
Without doubt, the majority of regulated persons are compliant, with many finding the challenge of legal work highly rewarding. However, for the minority who face allegations of professional misconduct, regulators must find proportionate ways of weighing up these factors when deciding the appropriate outcome and consider acting against firms that have contributed to the wrongdoing.
Abby Adamah is disciplinary standards and process (policy) manager at CILEx Regulation