Our first Board meeting of 2024 focussed on the important workstreams which will address the challenges outlined in the Reshaping Legal Services Strategy for the current year and beyond.
It was exciting to welcome our first Boardroom Apprentice, Meena Sankar, who currently works in the construction industry and will remain with us until December 2024. Boardroom Apprentice is a board learning, development and placement programme that enables those who would like to serve on a public or third-sector board to learn and gain experience in preparation for taking that step. This is a unique opportunity for the LSB to help shape the next generation of non-executive board members, and I’m delighted that we are participating. Meena will see first-hand how the crucial work we do makes a difference to the lives of people who need legal services and, at the same time, bring a fresh perspective.
Ensuring high standards of professionalism and ethics
If I were to choose one theme that united the wide-ranging discussions we have just had, it would be ensuring high standards of professionalism and ethics. It was impossible to hold a meeting without reflecting on the role of lawyers in what has been called the largest miscarriage of justice in UK history – the Post Office Horizon IT scandal. We are committed to seeking answers and ensuring that the regulators we oversee take appropriate action where a question arises of professional misconduct.
In November 2021, we wrote to the Bar Standards Board (BSB), CILEx Regulation and the Solicitors Regulation Authority (SRA), seeking assurance they were taking appropriate regulatory steps. They each provided updates on their work in relation to the ethical conduct issues raised by the case. We have continued to engage closely with them on these matters and note the BSB and the SRA recently published statements on their regulatory responses. We have made clear to the regulators the importance of taking appropriate action promptly should the evidence warrant this.
In the meantime, the challenge of regulators and to the whole profession is to re-emphasise the fundamental importance of demonstrably high ethical standards in rebuilding public trust, helping to ensure that such a scandal is never repeated.
Progressing our programme on professional ethics and the rule of law (PERL)
Grounded in regulatory objectives to support the rule of law, professional principles and public interest, our PERL work aims to ensure that regulation sufficiently incentivises and supports legal professionals in navigating and responding to professional ethical issues, including those to which there is not necessarily an easy answer. We discussed our progress over the last 18 months. Activity included gathering evidence through:
- an independent literature review, which concluded that proportionate regulation plays an important part in supporting the rule of law and responding to lawyers’ unethical conduct.
- a call for evidence on the misuse of non-disclosure agreements (NDAs) and the role of lawyers, the findings of which will be published next month.
- engagement with senior stakeholders across the sector through our PERL reference group.
What we have seen so far reveals examples of conduct that fall short of legal professionals’ ethical duties – for example, when they facilitate the silencing of victims of wrongdoing, fail to manage conflicts of interest or take unfair advantage of parties in a dispute. The Board discussed cases where legal professionals’ professional ethical conduct has been implicated.
Ensuring regulation incentivises and supports high standards
To take this work forward, we will seek information from regulators about the extent to which their existing rules and codes of conduct are capable of addressing professional ethical misconduct. We will also seek fuller information on the prevalence of different types of ethical misconduct. This will help us understand how regulators address the types of poor conduct we have identified, including what steps they take to prevent it, as well as how they supervise and enforce compliance with their existing rules and guidance. This will inform our view as to whether further regulatory intervention may be necessary to better incentivise and support legal professionals to identify, navigate and respond to professional ethical issues, as distinct from issues of competence. The Board endorsed this approach. Any policy proposals we identify will be consulted on and informed by the feedback we receive from stakeholders.
Annual regulatory performance assessment report
Our oversight of the legal services regulators includes assessing them against our regulatory performance framework each year and seeking assurance that they are well-led, have an effective approach to regulation, and are focused on regulating in the public interest.
The Board discussed the first annual assessment of the regulators under our new performance framework that we introduced in January 2023. We discussed the emerging findings for each regulator and the common themes across the regulators where improvements can be made. We agreed to hold a further session in due course, to reflect on our experience of operating under the new performance framework, and how we can best ensure that the assessments help drive positive improvements. The full report will be published shortly.
Transparency of our regulatory decision making
Transparency is a fundamental principle of good regulation, and we maintain our commitment to providing a high level of transparency in all our work. You can find our published minutes and papers on our website, and I hope this blog provides insight into the Board’s deliberations after each meeting.
It is right that we periodically review our approach to openness and transparency to check that we are maintaining our standards and to consider where we can do more. The Board had a wide-ranging discussion and would consider at a future date whether there may be a case for holding one or more meetings in public. We welcome any feedback on our approach to transparency.
Our next Board meeting is on 27 February 2024.