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An Independent Legal Profession

Below is an introduction to the concept of independence and how it relates to the legal profession in general. The following sections look at independence and large law firms. Read the below, think about the concept of independence (what it might mean, how it might be challenged etc) and then post your comments on it.

Historically lawyer independence has been primarily framed in terms of a three-way relationship between lawyer, client, and state, comprising two core dimensions:

(1) the capacity of lawyers to advise clients independent of state or regulatory interference (i.e. independence to give free and fearless legal advice); and,

(2) the independence of lawyers from their clients (i.e. the need for lawyers not to be subject to undue influence from those who pay for their services).

This has led some commentators to suggest that there is an inherent tension or “basic paradox” of professional independence between duties to the client and duties to the court and the wider public interest.

Professional independence is conventionally considered both a hallmark and bulwark of professional practice, with collective independence – the idea of self-regulation – and individual independence – the idea of detached, unbiased judgement – being indelibly entwined.

Professional independence at the organisational/occupational level – defined in terms of communal self-regulation and autonomy of the profession over educational, ethical, disciplinary and other matters – is typically considered to inculcate and foster the independence of individual practitioners, insulating them from the distorting influences of the market, clients, customers and other stakeholders.

In this way, professional independence is thought to ensure that professionals exercise their professional judgement in accordance with communal standards of competence and ethicality, and in a detached, disinterested and unbiased fashion. As a consequence, professionals and their specialist knowledge may simultaneously serve the wider public interest, as well as that of their clients. The professional independence of lawyers is thus also an important part of the rule of law.

Last week, we learned that the more than 130,000 practising solicitors in England and Wales are regulated by the Solicitors Regulation Authority, which derives its mandate from the Legal Services Act 2007 and operationalises its regulation of solicitors via its Handbook. Last week we also saw that the concept of ‘independence’ is referred to in the regulatory objectives set out in the Legal Services Act.

One of the objectives of the legal services regulators is to “encourage[e] an independent, strong, diverse and effective legal profession”, and one of the ‘professional principles’ in the Act is that “authorised persons should act with independence and integrity”. Principle 3 of the SRA’s 10 Principles at the front of its Handbook, which we also covered last week, states that a lawyer should “not allow [his/her] independence to be compromised.” Given this, independence is at the heart of legal services regulation. However, the 2007 Act is silent on what independence means, and there is little associated case law in this area.

In 2010, the Legal Services Board, the overarching regulator of legal services in England and Wales, set out what it understood to be the meanings of the regulatory objectives in the 2007 Act. On independence, the LSB said that:

Independent primarily means independent from government and other unwarranted influence. A client should be confident that his/her lawyer will advise and act without fear that the state will penalise through regulation. Similarly, a client should be confident that his/her lawyer will advise and act without being prejudiced by other factors or interests other than the overriding professional responsibility to the Court – their advice should be independent of inappropriate influence. (Similarly, lawyers should be confident that their independence as officers of the Court is not constrained by their relationship with their client).

And in its guidance to the Handbook, the SRA says this about independence:

Independence” means your own and your firm’s independence, and not merely your ability to give independent advice to a client. You should avoid situations which might put your independence at risk - e.g. giving control of your practice to a third party which is beyond the regulatory reach of the SRA or other approved regulator.

In the next step, we will ask you to debate some questions based on what you have learned in this step about the concept of independence in legal services regulation.

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This article is from the free online course:

Corporate Lawyers: Ethics, Regulation and Purpose

University of Birmingham