Skip to 0 minutes and 4 seconds STEVEN VAUGHAN: I’m in the city of London and outside the law firm Bevan Britain. We’re going to go inside and speak with Iain Miller, a lawyer who advises other lawyers and the legal services regulators on questions of legal ethics and lawyer misconduct. Iain, thanks so much for agreeing to speak with us today. Can you start us off by telling us a little bit about your practice, please, and the sort of work that you do.
Skip to 0 minutes and 25 seconds IAIN MILLER: I’m head of regulation at Bevan Britain. My background is I started off as a commercial litigator. I have over the years become increasingly involved in public law and the regulation of professionals, particularly lawyers. So a large proportion of my practice involves advising regulators, such as the SRA, the Bar Standards Board in [? Silex, ?] and also acting on behalf of law firms and other individuals in relation to the legal services regulatory framework.
Skip to 0 minutes and 56 seconds STEVEN VAUGHAN: If you think about the cases that you work on, do you see any patterns? Are there any common indicators that make lawyers more or less likely to be unethical?
Skip to 1 minute and 4 seconds IAIN MILLER: I mean, my view over the years is that, broadly, lawyers who have behaved unethically fall into two categories. The first is those who are frankly, fundamentally dishonest and lack any moral compass. An example of that is a case I did number of years ago where a solicitor would get instructions from a client in relation to an accident at work. He would then go off and make a claim on behalf of the client against the company or the insurers. And then, when they made an offer of, for the sake of an argument, 100,000 pounds, he would say to his clients, great news, I’ve got an offer of 10,000 pounds, which I think you want to accept.
Skip to 1 minute and 47 seconds And he would effectively keep the difference between those two sums. Those types of lawyers thankfully are few and far between, but they, frankly , lacked the moral compass to be lawyers in the first place. There are then those who, through some form of pressure, end up doing things which they shouldn’t do. And sometimes, at the time, they know they shouldn’t do. So, for example, they might be suffering from financial difficulties and decide that using the client account to tide them over briefly thinking they can pay that money back is a good thing to do, but end up digging themselves further and further into a hole.
Skip to 2 minutes and 27 seconds Or becoming involved in transactions which they know don’t feel right and seem a little odd, but there’s money involved, and therefore they think that that’s the best way of trying to cure their financial problems. And there are those who perhaps make a mistake and don’t feel as if they can hold their hands up and accept responsibility for that mistake and try and cover it up. There’s quite a number of cases where, for example, solicitors have had their client’s cases struck out by missing a deadline.
Skip to 2 minutes and 57 seconds But rather than saying to the client that they’ve made a mistake, they cover it up by making up court orders and letting the matter run for a couple of years before finally, it all comes out. And at that stage they didn’t obviously set off to do that deliberately, but nonetheless they took the wrong route somewhere along the path.
Skip to 3 minutes and 18 seconds STEVEN VAUGHAN: You’ve been talking about various pressures that lawyers in practice are under. What sorts of ethical challenges do you think that lawyers face in their day-to-day working lives?
Skip to 3 minutes and 27 seconds IAIN MILLER: Well, I think it is that the various forms of pressure that lawyers face, so for example, pressure from clients to do things that perhaps they don’t feel terribly comfortable with. Or perhaps the financial pressures or firm pressures that they might face to do certain things again, which they’re not very comfortable about. And they can come up in a number of different circumstances, but generally they involved acting in relation to cases, or how do they deal with certain situations that arise? And it’s that moment where quite often they know what the right thing is to do. But they don’t do it because it’s easier to do something else.
Skip to 4 minutes and 9 seconds And if you were to say what is the core of behaving ethically, it’s taking one step back and thinking, what is the right thing for me to do as a lawyer in this situation?
Skip to 4 minutes and 20 seconds STEVEN VAUGHAN: And if we think about ethics and regulation, how well do you think the legal services act sets out what we can expect from lawyers in terms of their ethics?
Skip to 4 minutes and 27 seconds IAIN MILLER: Well the legal services act is very much about creating the framework for the regulation of lawyers. So it does have the professional principles. It has the regulatory objectives, which are at the beginning of the act, which set up a framework effectively, which the front line regulators are to implement. So I don’t think that you’d find very much detail on ethical guidance from the act itself. But clearly, it is part of the entire framework that it sets up. There ought to be safeguards and ways in which the regulators encourage the regulator to act ethically.
Skip to 5 minutes and 7 seconds STEVEN VAUGHAN: If we think about lawyers and practice lawyers doing their day-to-day jobs, how well do you think they know the regulatory obligations in relation to ethics?
Skip to 5 minutes and 16 seconds IAIN MILLER: I suspect quite often it’s instinctive. That they will, through training, through working with people who perhaps they admire and respect, get an idea of how they ought to behave in certain circumstances. But quite often, unless you’re going for particular provisions of the SRA code or some of the other codes, I suspect they don’t necessarily know that what they’re doing has an ethical basis. They would be more thinking about what would so and so do in this position. There’s a less formal understanding I think by English solicitors in relation to those aspects.
Skip to 5 minutes and 52 seconds STEVEN VAUGHAN: As part of the course, we’ve been looking at the SRA [? Hamburg ?] in the code of conduct. Do you think there’s a risk in having ethics set out in this way? This can lead to a box-ticking compliance culture?
Skip to 6 minutes and 3 seconds IAIN MILLER: I think there is. I think as a profession, the legal professions have over the last 10, 15 years moved over to this sense that somehow you can encapsulate in a code every possible permutation that could arise in practice. And I just don’t think that’s feasible. I think there is a danger in that, that people feel as if they could construe the rules in a certain way that does what they want them to do. Somehow they feel as if they’ve complied without again taking that step back and thinking, is that really the right thing to do? And is that really the effect of that rule in my circumstances?
Skip to 6 minutes and 43 seconds STEVEN VAUGHAN: At the moment, the study of legal ethics isn’t a compulsory part of the law undergraduate degree in England and Wales. But do you think it’s important for law students to start to learn about ethics early on in their careers?
Skip to 6 minutes and 55 seconds IAIN MILLER: I think it is. I think the developments and practices over the last 15, 20 years when I’ve been involved have, I think, degraded some of the previous ways in which lawyers learned about ethics. For example, I used to sit with someone when I was doing my training contract. And I would learn from them because we shared a room together for six months. Now, young solicitors work in open plan. They perhaps don’t have one particular person they can learn from. The way in which that’s [? evolved ?] style of ethical teaching came across is now gone. And we’ve not replaced it with something else.
Skip to 7 minutes and 33 seconds And I think it is important that we upgrade and improve the way in which our ethics is taught at the undergraduate level to give those lawyers the tools that they will need, when they do have that difficult problem that arises on a Tuesday afternoon in October, when they have got to analyze what is the right thing for me to do. I think we’re all missing that bit at the moment.
Skip to 7 minutes and 57 seconds STEVEN VAUGHAN: That’s great, thanks very much.
Skip to 7 minutes and 59 seconds IAIN MILLER: Thank you.
The Lawyer Who Advises Other Lawyers on Ethics
Your Task – watch this video in which Steven speaks to Iain Miller, partner at the law firm Bevan Brittan LLP about his work advising lawyers (and other professionals) on issues on ethics and professional conduct.
Reflect on any new information or ideas that you have come across, then share your thoughts in the discussion area.
Iain Miller is a partner at Bevan Brittan LLP and is head of its regulatory team. He has advised in relation to legal services regulation since 1994. He is the Joint General Editor of Cordery on Legal Services, the leading textbook on legal services regulation, and the co-editor of Butterworths Guide to the Legal Services Act 2007.
Iain is ranked as a Star Individual in Chambers & Partners Guide to the UK Legal Profession in the field of professional discipline. He was also ranked in Chambers for Administrative & Public Law and named as a leading individual in the Legal 500 in the field of professional discipline. Bevan Brittan’s Regulatory Group was shortlisted for Regulatory Team of the year in the Lawyer Awards 2012 and won in the same category in 2014. Iain was named in the Lawyer Magazine’s Hot 100 in 2013.
Below is a link to an article by Iain Miller titled ‘The Regulatory Balancing Act’ in which Iain reflects on the impacts of the Legal Services Act 2007, and a link to Iain’s blog:
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