The Board met virtually on 17 October 2023. We welcomed new Board Member Lizzie Peers to her first meeting. We look forward to gaining from her broad experience as we continue to focus on advancing our ambition to reshape legal services to better meet the needs of society and reduce unmet legal need.
Advancing adherence to professional ethical obligations
The issue of the role of legal professionals in crafting non-disclosure agreements (NDAs) is not new and has been raised with the LSB over a number of years and by a range of different parties. Earlier this year, we launched a call for evidence to improve our understanding of the scale, extent and nature of NDA misuse. This generated much interest, with responses from more than 100 individuals and organisations.
Our focus is to understand why some legal professionals may fall short of their professional ethical obligations when engaged with NDAs. We also want to explore whether there is a role for regulation – alongside other factors like professional leadership – in underpinning appropriate ethical standards. This exploration is one component of a wider programme of work on professional ethics and supporting the constitutional principle of the rule of law.
The Board discussed several thematic areas emerging from the call for evidence where legal professionals’ conduct appears to fall short of ethical standards of conduct and agreed that further analysis ought to be carried out, including considering other circumstances where similar conduct might occur and how this can be addressed. For example, there were accounts of individuals feeling pressured into signing agreements; of an imbalance of power leading to a detrimental outcome for an individual; and of individuals in vulnerable circumstances feeling this was exploited to the benefit of another party.
We asked the Executive to develop a categorisation of the behaviours that ought to be encouraged (like being clear about circumstances in which an individual is giving up some of their legal rights) or discouraged (like preventing the sharing of information with regulators or healthcare professionals). We will publish the summary of evidence in due course, and the Board will consider further analysis in the New Year.
Finally, while the call for evidence was on the topic of lawyers and NDAs specifically, it will inform our broader programme of work on professional ethics and the rule of law.
Delivering value for money for consumers: Review of SDT’s Budget 2024/25
Approving the Solicitors Disciplinary Tribunal’s (SDT) annual budget is a statutory function of the LSB. At this meeting, we approved their budget for 2024/25. We welcomed the steps the SDT is taking to deliver value for money and identify strategic objectives that deliver in the public interest and for the profession and its consumers. We look forward to further discussing the SDT’s developing vision as it engages with stakeholders in the coming months.
On value for money, the Board was pleased that the SDT has used the opportunity of acquiring new premises to carefully assess its accommodation needs and secure smaller and more cost-effective premises. We encourage the Tribunal to develop indicators that measure benefits and impacts, reflecting that value for money is about more than money saved.
Protecting access to justice: review of cab rank rule principles
Against a background of media coverage and debate regarding the ‘cab rank rule’ earlier in the year, the Board asked for a briefing from the Executive on the collection of principles and regulations that together make up that ‘rule’. We noted that the central aims – to prevent discrimination by barristers as to the clients they take on and to enable barristers to take on clients without fear of being associated with their causes (good or bad) – are almost self-evidently right in any rule of law jurisdiction, including ours.
There are however many exceptions to the rule, but not all of them are easy or indeed possible for a client to test. We posed the question as to whether the rule is, in fact, better described as a principle to be promoted rather than a regulation with actual disciplinary consequences and, as a result, whether it perhaps provides less regulatory protection than is sometimes claimed for it.
Having said that, we see this issue as one to be dealt with in the first instance by the regulator and the profession it oversees. We will keep the discussion in mind as we continue our professional ethics and disciplinary and enforcement projects.
We are committed to transparency in all LSB business and routinely publish our Board agendas and papers before meetings. We do this to encourage stakeholders and the wider public to engage with our work. We therefore welcomed comments from the Bar Council, which informed our discussion on this paper.
Join the discussion at our Reshaping Legal Services Conference 2024
Finally, we look forward to discussing important topics at our Reshaping Legal Services Conference 2024, which we are co-hosting with the Legal Services Consumer Panel. The Board considered the evolving plans for the event and agreed it is shaping up well. Taking place on 7 March 2024 at the King’s Fund in London, it will bring together people from across the sector with a role to play in ensuring people who need legal services can access them. That includes lawyers and future lawyers, researchers and academics, advice agencies, charities and the third sector. We were pleased to hear that places are filling up fast, so secure your place soon if you haven’t already. You can also watch online.
We agreed it is important to attract a diverse range of delegates, including those from different legal professions and stages of their careers, to ensure meaningful discussions. We are particularly looking forward to a session in which we consider the future of lawyering and what it will mean to be a lawyer in 2034. How will the expectations of lawyers entering the profession change? How might different cultures across the sector need to evolve? What innovations can we expect, and what technologies might the profession be using? What ethical issues will the sector be grappling with?
As well as providing updates on our own work and the role of regulation in reshaping legal services to better meet the needs of society, we also look forward to hearing from a diverse range of speakers and panellists on their contribution to our shared mission. The Board agreed it was important, though, to also hear from other professions and sector leaders, so we will be considering a wide range of participants and are sure this will enrich our discussions on the day.
If you are interested in participating, please get in touch. Please also let us know if you would be interested in an exhibition space.
I look forward to seeing you there. Please do spread the word, too!
The next Board meeting will take place on 28 November 2023.