Acting to stop harm: the FCA and Appointed Representatives
The subject is hardly taught here and there is a real danger many lawyers do not understand. Ethics sits at the heart of the updated regulatory framework that the Solicitors Regulation Authority is set to implement on November 25. The emphasis on behaviour and culture is in stark contrast to the 2011 version, where risk and compliance were the focus.
While this shift signals progress and is laudable, it undoubtedly creates a headache for solicitors in England and Wales – after all, how many of them are even familiar with the subject of legal ethics, or have anything from their law school memory bank to fall back on?
Legal ethics is hardly taught as part of academic training, let alone being compulsory as it is in many other common law jurisdictions. There is a real danger that the authority is speaking a language that lawyers it regulates simply do not understand, or at least will not be able to
until it is translated for them.
Yet only the foolhardy are likely to wait around for the regulator’s promise of supporting material to guide them through. In fact, to wait would very much fly in the face of the authority’s other key message: that lawyers need to make judgement calls, be innovative and
be accountable for the decisions they make.
Accordingly, the onus will very much be on firms to fill in any gaps in their employees’ knowledge to enable them - and the firm - to perform to the standards expected of them. Firms could approach the regime in many ways. Starting with the more innovative, a firm could employ its own moral compass in the form of an ethics adviser, or perhaps it will
become an essential requirement of the job description of a firm’s general counsel or compliance officer to have a working knowledge of this topic.
Alternatively, firms may need to be more receptive to the idea of commissioning experts in this area to advise them when they are faced with particularly difficult circumstances.
A more realistic starting point would be for firms to make their employees aware of the relevant regulatory provisions, notably the SRA principles and codes of conduct, and introduce effective training to improve judgment calls.
Firms should also alert staff to the importance of the regulator’s revised enforcement strategy, so that they fully understand what is expected of them and the consequences of getting it wrong. Simply understanding risk and compliance with systems and processes will no longer
Long gone are the days of box ticking – we are entering an era of legal regulation where firms and their lawyers have ethical obligations.
Firms will be expected to support all their staff to comply with the obligations and actively to foster a culture based on them. Where this fails to happen, firms should not be surprised if the SRA comes knocking.
This article first appeared in in The Times on 18 November 2019.
Jessica Clay is a Senior Associate in the Regulatory department and specialises in legal services regulation, with a focus on regulatory compliance, legal ethics, investigations and public law matters.
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