ETHICS AND THE LEGAL PROFESSION – Mark Humphries

(Mark Humphries has 25 years’ experience of contentious legal practice. Until recently

a litigation partner and head of advocacy at Linklaters in London, he is now the director
of his own commercial disputes firm Mark Humphries Ltd. He is a past chairman of the
Solicitors Association of Higher Court Advocates)

The origins of legal ethics

An act of professional misconduct is committed by a lawyer who does something which

is 'dishonourable to him as a man and dishonourable in his profession' – Re G Mayor
Cooke [1889] 5 TLR 407.

If the ethical principles to which a lawyer should adhere were capable of being
encapsulated in this single notion, there would be little more to say about ethics and this
course may not be necessary to conduct. Certain basic standards of professional
behaviour do exist. These has been regarded as sacrosanct for so long that they may
be as relevant in the 21st century as they were when they were first identified in
medieval times.

When the legal profession first emerged during the reign of Edward I in the late 13th
century it may perhaps have been clear enough to say merely that a lawyer must
behave with 'honour'; it may even have been clear enough in the 19th century. But those
were times when honourable conduct was, to a greater or lesser degree, perhaps easier
to identify than is the case when dealing with the complexities of the practice of law
today. Such are the intricacies of the modern world that it can no longer simply be said
that, if it seems right, it probably is right, but if it feels wrong, it is probably unethical –
although for a modern example of this simple approach see Vernon v Bosley (No 2)
[1999] QB 18, 63-4 (CA), per Thorpe LJ.

It is not just changing times which may bring about differing perceptions of what is
ethical, but also the environment in which a lawyer practises. Thus a lawyer practising
advocacy or litigation in the essentially adversarial common law court system may well
have different views on ethics from those of colleagues who practise in different
environments or different jurisdictions. To understand how principles of ethics develop it
is necessary first to examine their historical emergence.

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Medieval ethics

The earliest surviving records of medieval principles of ethical conduct for lawyers
concern the advocates and proctors who appeared before the church courts. One very
early record is a book written in 1239 by William of Drogheda, an Oxford priest and
lawyer, advising the reader how to be a successful advocate. The text reveals
something of an ironic disconnect between the ethical standards of these two
professions on the important subject of remuneration: the author recommends that
advocates should ensure payment in advance – “Get your money while the patient is
ill.”

A number of other records date back to the late 14th and early 15th centuries and, while
not comprehensive, contain further examples both of the observance of the ethical
standards of the time and, indeed, of their breach.

High ethical standards were imposed by the canon law. Lawyers who practised before
the church courts were usually clerics who were literate, conversant in Norman French
– the language of the secular courts – and adequately trained in the law. They had to be
free from 'infamia'. They were obliged to take an annual oath requiring them to charge
only moderate fees, to act without charge for poor litigants and to deal honestly with all
matters relating to their clients. They were entitled only to accept cases which they
believed were properly brought and they were not to make pleas which they did not
believe in their conscience to be right. Further, they were obliged to drop cases even
during their prosecution if they subsequently discovered them to be without foundation.
They were not to engage in conflicts of interest, or 'ambidexterity', sometimes described
as 'playing on both hands'. They were not to suborn witnesses unnecessarily to delay
litigation or to make frivolous appeals. Proctors were even required frequently to swear
the oath of 'calumny' during the course of the proceedings, vouching that their client
was acting in good faith.

In practice, however, these early professional lawyers often charged substantial fees
based on the amount of work they were required to do and they regulated entry into
their professions to ensure that their practices remained sufficiently busy for their
desired fee income to be achieved. There is also evidence of judicial corruption, with
lawyers acting as intermediaries between litigants and judges, a practice which seems
to have been fairly common until the 17th century.

There is surviving evidence, on the other hand, that the early lawyers occasionally acted
for poor litigants without taking any fee at all and that, in general, they did not seek to

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prolong litigation for their own gain but frequently compromised claims rather than
pursuing them in the church courts. There is also surviving evidence which shows that
medieval lawyers took seriously their duty to the court not to take on unjust claims and
were prepared to drop a 'causa desperate' if the injustice of a case emerged during its
prosecution. If a lawyer was uncertain as to the good faith of his client he might refuse
to swear the oath of calumny, effectively bringing the claim to an abrupt halt. Order 4
Rule 1 of the modern Civil Procedure Rules, which requires statements of case to be
verified by a statement of truth (verifying affidavit), can be seen in some ways as a 21st
century equivalent of the oath of calumny.

Statutory regulation

The earliest example of statutory regulation of the English legal profession, emerging at
the same time as the profession itself, is Chapter 29 of the Statute of Westminster I
(1275), in which 'deceit or collusion' by early lawyers was forbidden in the King’s court.
This statute was introduced shortly after an inquest by Edward I had found substantial
evidence of, among other things, abusive litigation practices by court and royal officials,
lawyers and litigants which were having an adverse impact upon the judicial system.

Chapter 29 of the statute provided that '…if any Serjeant, Pleader or other, do any
manner of Deceit or Collusion in any King’s Court or consent in deceit of the Court or
beguile the Court or the Party and thereof be attainted, he shall be imprisoned for a
year and a day from thenceforth shall not be heard to plead in Court for any Man'.

Prohibited behaviour included deception of the court or a party and ranged from
extortion, bribery and abuse of power to abusive litigation tactics such as champerty,
maintenance and barratry (habitually initiating, maintaining or vexatiously persisting in
or inciting litigation) through false statements in pleadings and antagonising judges.
Indeed, so wide was the discretion given to judges to regulate the conduct of lawyers
that the statute was effectively a general prohibition on misconduct by lawyers (even in
some cases extending to professional negligence) and breaches were punishable by
imprisonment, fines and/or a prohibition upon further pleading.

The London Ordinance of 1280 reflects a continuation of concern over standards of

conduct by lawyers, but also over controlling the number of lawyers in practice. The
ordinance regulated the admission of lawyers to practise in the City of London courts
such that the serjeants and attorneys probably had a monopoly on the right to practise
in these courts. Although no doubt partially motivated by self-interest, these early

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attempts to restrict competition appear to have been aimed at assuring the competency
of lawyers in the public interest.

The ordinance also prohibited lawyers from acting for both parties or acting for a party
against a former client in the same matter and ensured that a lawyer could not withdraw
from proceedings without the consent of the client. Breach of the ordinance was
punishable mainly by temporary or permanent suspension from practice. Very few
records have been discovered of cases in which the ordinance was applied, and those
that exist relate to such diverse conduct as conflict of interests and professional
negligence. The former case was settled and in the latter case the sanction was
imprisonment.

A further ordinance, promulgated by Edward I in 1292, appears to have been introduced

in response to a perception of extensive misconduct by both lawyers and the judiciary.
The ordinance placed the supervision of lawyers practising in the King’s courts under
the control of the king’s judges. The same ordinance further regulated the admission of
lawyers to practise by reference to minimum standards of competence and was
designed to reduce the number of practising lawyers to 'seven times twenty', although
ultimately the number of appointments was left to the discretion of the justices and the
number of 140 was quickly surpassed. The thinking behind this, as confirmed by
Edward I himself following the adoption of the ordinance, appears to have been that too
many lawyers would mean excessive litigation and that some lawyers could only survive
through 'fraud and malice'. The ordinance of 1292 was also the first time that a
requirement was formally set out in statute for lawyers to be able to prove their integrity.

There were further statutes in 1402 and 1455 designed to limit the number of practising
attorneys and to ensure that they were properly trained, competent and of good moral
character. Again, these interventions were in response to public complaints about
excessive litigation resulting from incitement to suit, incompetence and misconduct by
lawyers.

A series of bills was presented to parliament during the 16th century intended to reduce
the number of lawyers and, with it, the number of frivolous suits. In 1606 parliament
passed one such bill entitled 'An Acte to reforme the Multitudes and Misdemeanours of
Attorneys and Solicitors at Lawe'. The preamble to the Act related that excessive and/or
fictitious fees had been demanded by lawyers, 'whereby the subjectes growe to be
overmuch burthened, and the practise of the juste and honest sergeant and counsellor
at lawe greatly slandered'. The Act further provided that if any attorney or solicitor
should 'willingly delay his client’s suites to worke his own gaine', or if they were to

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 demand more in fees than had been initially indicated, he would be liable to an action
for damages of up to three times that value and could be discharged from practice. It
also included provisions relating to avoiding 'the infinite number' of solicitors and
attorneys.

It is striking that these medieval examples of regulation of lawyers are concerned with
the same issues as arise in modern legal practice today: the extent to which restrictions
on the right to practise as a lawyer can be justified in the public interest (see, in
particular, the director general of fair trading’s report Competition in professions, March
2001); the maintenance of an acceptable level of competence for lawyers; and the
prevention of misconduct. They also seem to support the conclusion that public
attitudes to lawyers were to some extent hostile from the very earliest days of the
profession.
In the period 1483–1558, principles of professional conduct above and beyond mere
honesty began to be formulated for the bar by the Court of Common Pleas, the main
common law courts of the time.

The principal evidence of this formulation consists of three speeches to the new
serjeants at law during the reign of Henry VIII in which the lord chief justice would
explain the ethics of the profession and the high standards of conduct expected of
practitioners. A number of specific requirements can be identified from these speeches:

 To assist the poor and oppressed without reward;

 To give counsel to anyone who should seek it – one of the earliest statements of
what is now called the ‘cab rank rule’ comes from the Scottish Court of Session in 1532:
‘No advocate without very good cause shall refuse to act for any person tendering a
reasonable fee, under pain of deprivation of his office of advocate’;
 To dissuade clients from pursuing unjust causes and to advise them to abandon
causes if it appeared that they were in the wrong;
 To deal with business expeditiously and not to prolong it for gain;
 To keep clients’ business secret (by 1647, the allegation that an attorney
‘revealed the secrets of my cause’ was considered so shocking that it was actionable for
slander);
 To avoid corruption by money or favour, not merely in deceiving clients but also
for instance in pretending to be ‘blind’ – unable to assist in a worthy cause;
 To ‘stick with hand, foot and nail’ to the truth, never pretending that a wrong is
right; and
 To do nothing contrary to good conscience.

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In spite of the wealth of legal training offered by the Inns of Court, whose principal
function was the education of students and practitioners of the law, it seems that no
specific instruction on professional ethics was provided. Formal instruction on ethics
may have been considered unnecessary, not least because lawyers no doubt discussed
professional conduct matters and specific recent examples of misconduct among
themselves.

Concepts such as the importance of loyalty and confidentiality would no doubt have
evolved and developed from those discussions, influenced both by Christian religious
education as well as developing humanist learning, such as the lawyer’s duty to justice.
The academic Jonathan Rose suggests that senior lawyers, as role models, may well
have influenced the development of ethical sensitivities.

The similarities between the ethics of the lawyers practising before the church courts
and those of the lawyers practising at the common law bar are no doubt explained partly
by the fact that principles of ethics, in common with substantive legal principles, were
originally based on biblical precepts. By way of example, the medieval ethical principle
that it was wrong knowingly to defend an unjust cause can be traced to the writings of
the theologian St Thomas Aquinas. St Thomas taught that lex humana was subordinate
to the eternal law of God. Additionally, it appears that early lawyers practised in both the
ecclesiastical and common law courts and that, although the two legal professions
developed separately, there would no doubt have been some cross-fertilisation between
them.

The king’s serjeants, who were appointed from the ranks of the serjeants at law and
represented the Crown in important criminal and civil cases, were not allowed to appear
or advise against the Crown except in certain limited circumstances; and then, if the
verdict went the other way, they could change sides and ‘pray judgment for the king’.

Conflicts of interest remained a very serious matter. There are a number of reported
defamation cases in the 16th century containing judicial pronouncements suggesting
that accusing a lawyer of being an ‘ambidexter’ or, colloquially, a ‘daffy-down-dilly’ was
reckoned to be as serious a charge as to accuse a doctor of killing a patient.

Sir Nicholas Bacon, the Lord Keeper of the Great Seal in the reign of Elizabeth I,
suggested in 1559 that it was improper to ‘offer jeofail or error’ – to take technical points
after a hearing – although this may not have been a universally held opinion.

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1 Attorneys and solicitors

On the other side of the profession was the attorney at law who was in some ways the
forerunner of the present day solicitor, although the office of attorney was abolished in
1875 as a result of the Judicature Acts. The Ordinance of 1292 had recognised
attorneys as a separate part of the legal profession, confirming their monopoly on the
right to practise in the courts of the Common Bench, and may well be the origin of
solicitors being officers of the court. Attorneys dealt with procedural matters and
managed litigation on behalf of their clients. They began to develop similar professional
standards to those adopted by the serjeants under the supervision (in their capacity as
officers of the court) of the judges of the Common Pleas.

There were in fact also ‘solicitors’, practising in Tudor England, who were not
necessarily trained lawyers of any description, although some of them were members of
one of the inns of court. It was not until the 19th century that the expression ‘attorney’
was dropped in favour of the term ‘solicitor’.
The earliest surviving form of the attorney’s oath dates from the mid-1550s, although it
is known that the oath was in use as early as the 1520s and possibly even before that.
The oath contained the following requirements:

‘You shall do no falsehood nor consent to any to be done in this court; and if you know
of any to be done you shall give knowledge thereof to my lord chief justice and other my
masters his brethren, that it may be reformed. You shall delay no man for lucre or for
malice. You shall increase no fees, but be content with the fees accustomed. You shall
plead no foreign pleas nor sue any foreign suits unlawfully to hurt any man, but such as
shall stand with the order of the law and your conscience. You shall seal all such
process as you shall sue out of this court with the seal thereof or see the king’s majesty
or my lord chief justice satisfied for the same. Also, you shall not wittingly sue or procure
any false suit, nor give aid or counsel to the same, on pain to be expelled from this court
for ever. And further use yourself in the office of an attorney within this court according
to your learning and discretion. So help you God etc.’

An oath was also taken as early as the 15th century by court officers in which they were
required to use every effort to hinder falsehoods and reveal them to the court.

In the attorney’s oath can be seen an early reference to the disciplinary consequences
of falling short of the required standards of ethical behaviour. The penalty for
deliberately making or assisting in making false claims was permanent expulsion from
the court and, thereby, legal practice. An attorney expelled from the court after formal

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investigation on oath was said to be ‘forejudged’ and it was customary for the penalty to
be physically enforced by throwing the attorney over the bar of the court. This gave rise
to the colloquial expression ‘to turn up one’s heels’.

Some form of suspension from practice was imposed while a complaint of professional
misconduct against an attorney was investigated and in serious cases the investigation
could be by a grand jury of attorneys. It is believed that less serious offences such as
continuing with a matter without good cause were punished by a fine or a term of
imprisonment.

As with all lawyers, the court regulated the professional conduct of attorneys. Up to the
13th century a litigant was required to appear in person and to plead his case. Practising
attorneys became more commonplace during the 13th to 15th centuries. However, judges
appear always to have exercised an inherent power to control the admission of lawyers
to practise in their courts and to sanction them when they misbehaved. (Indeed, the
overriding power to refuse to hear a particular advocate has recently been placed on a
statutory footing in England - sections 27(4) and (5) of the Courts and Legal Services
Act 1990, subject to the requirement to give reasons for exercising the power.) It
appears that the disciplinary function was carried out publicly, at least in serious cases.

In 1558, the court summoned all the attorneys and court officers to hear the sentence of
forejudging passed on a senior attorney of 40 years’ standing ‘to the terror of other
offenders’.

2 The litigation and advocacy divide

Historically, barristers had exclusive rights of audience in the higher courts including the
Crown courts, High Court and Court of Appeal, although solicitors have always had
rights of audience in the lower courts, including the magistrates’ courts and the county
courts and, in interim matters, in the higher courts. Barristers could not generally appear
in court, except on dock briefs, unless instructed by an attorney (or, later, a solicitor).
They had to be attended in court by a member of the solicitor’s practice.

Barristers expected their ‘professional clients’ (solicitors) to visit them for ‘consultations’
at their chambers, in the manner of a consultant doctor, and negotiations over fees were
conducted by barristers’ clerks and not by barristers themselves who regarded such
matters as unprofessional. In the early 18th century, the notion developed that barristers
received an ‘honorarium’ rather than ‘merces’.

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In recent times many of these traditions of the bar have been swept away. The legal
profession, spilt into two branches for several centuries by historical accident, is now in
a period of uneasy transition.

In 1990, all solicitors were given full rights of audience in all courts upon qualification,
albeit with restrictions on the exercise of some of those rights until the grant of a higher
courts qualification following training and monitored experience. Solicitors began to
appear in the higher courts in 1994. Barristers are no longer prevented from visiting
solicitors at their offices and may freely accept instructions from professional persons
other than solicitors who have been approved to instruct barristers directly, or even,
subject to certain restrictions, directly from a lay client.

The profession of barrister is undergoing a transformation to accommodate modern

legal practice while continuing to provide a service to the public specialising in advisory
work and advocacy. At the same time, solicitors are beginning to take advantage of the
increased work opportunities made available by the relaxation of restrictions on their
rights of audience.
The principles of ethics followed by lawyers since medieval times have often been the
subject of judicial comment but were not committed to any written or permanent form
until the 20th century. The Law Society’s A Guide to the Professional Conduct and
Etiquette of Solicitors was first published in 1960 and ran to eight editions before being
superseded in large part by the coming into force of the Law Society’s Code of Conduct
in 2007. The bar’s Code of Conduct, first published in 1981 and now in its eighth edition,
was equally a creature of the 20th century.

In earlier times it was said that no absolute code could be laid down but that (in the
words of Lord Macmillan) the solutions to the daily problems arising from the duties of
the advocate ‘… are left to the advocate’s honour …’ Yet a number of attempts were
made to define the advocate’s ethical obligations. Lord Macmillan identified five core
duties of an advocate: ‘… a duty to his client, a duty to his opponent, a duty to the court,
a duty to the state and a duty to himself’.

Sir Malcolm Hilbery regarded the advocate’s code of honour as being found in ‘the
traditions of the profession’, to be learnt at ‘the schools of the profession … the Inns of
Court’. Du Cann observed that the proper observance of these duties ‘may prevent [the
advocate] ever rising to his feet at all, whilst a failure to follow them may result in an
appearance before a disciplinary committee … and the striking of his name from the list
of those qualified to practise in the courts’. He identified the essential characteristics of
an advocate as honesty, judgment, courage, sincerity, humanity and industry.

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In the later part of the 20th century the ethical principles, particularly those governing
solicitors, became more detailed and consequently more complicated. But an attempt
was made to separate matters of principle, recorded in ‘practice rules’, from matters of
detail and interpretation, recorded in notes to the practice rules. This trend continued
with the publication of the Law Society’s Code of Conduct which states the core duties
of solicitors and the rules of professional conduct but also contains a substantial volume
of guidance notes interpreting and commenting on those rules.

Inevitably, changes in practice have brought with them a re-evaluation of certain ethical
principles. A good example is the recent developments in litigation funding.

Historically, English law has refused on public policy grounds to recognise

arrangements whereby litigation was funded by third parties (maintenance) or whereby
a third party would maintain an action in return for a share of any award (champerty). A
person is guilty of maintenance if he supports litigation in which he has no legitimate
concern without just cause or excuse; champerty occurs when the person maintaining
another stipulates for a share of the proceeds of the action or suit.

In Re Trepca Mines (No 2) [1963] 1 Ch 199 Lord Denning MR said: ‘The reason why the
common law condemns champerty is because of the abuses to which it may give rise.
The common law fears that the champertous maintainer might be tempted, for his own
personal gain, to inflame the damages, to suppress evidence, or even to suborn
witnesses.’

But public policy in this area dramatically changed during the 20th century. For
example, the state often maintains litigation through legal aid funding. This is due to a
general shift in emphasis away from the principles that justified a prohibition on
maintenance and champerty towards an emphasis on access to justice for all. Despite
the fact that some lawyers resisted the introduction of legal aid in the post-war era on
the ground that the independence of lawyers to act in their clients’ best interests would
be compromised by their responsibilities to the legal aid fund, the principles behind legal
aid are now firmly embedded. Along with this development a new paralegal sector has
grown since the 1970s, including Citizens Advice Bureaux and law centres which further
assist litigants without means.

The courts will also now uphold certain funding arrangements provided by solicitors and
third parties. For example, section 58 of the Courts and Legal Services Act 1990 (as
amended by section 27 of the Administration of Justice Act 1999) has modified the

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common law rules on maintenance to permit solicitors to work under certain ‘no win, no
fee’ arrangements known as conditional fee agreements. In addition, litigation may be
funded by an entirely unconnected third party in certain circumstances, for example
where the third party does not seek to exercise ‘excessive’ control over the course of
the litigation, or where the third party does not make such a profit that the funded party
may not benefit from a successful outcome. The law surrounding such funding
arrangements is in its infancy and this is very much a developing area in which ethical
considerations are likely to be of huge importance.

Free representation for those who could not otherwise afford it, an ancient ethical
stalwart, is very much encouraged by the SRA and the Bar Council and has been given
new impetus in recent years. The Bar Pro Bono Unit was established in 1996 and the
charitable provision of legal services is now a key component of professionalism and
corporate social responsibility for many solicitors’ firms, barristers’ chambers and
government bodies.

1 Professional regulation

With these recent changes has come an increased focus on the professional regulation
of lawyers. Although the courts retain inherent rights to regulate the conduct of those
whose profession it is to appear before them, the day-to-day business of regulation has
in recent times been undertaken by the governing bodies of lawyers – the Solicitors
Regulation Authority (SRA) and the Bar Standards Board.

The autonomy of both the solicitors’ and the barristers’ professions to self-regulate has
been recognised since the first committee was empowered to discipline solicitors under
the Solicitors Act 1888, but it was severely curtailed in 1990 with the Courts and Legal
Services Act and the setting up of the lord chancellor’s Advisory Committee on Legal
Education and Conduct (ACLEC). ACLEC provided scrutiny and comment where
changes were made to professional rules, but it had only an advisory role.

The current regulatory framework was put in place following a report commissioned by
the Department of Constitutional Affairs in July 2003. The report, entitled Competition
and Regulation in the Legal Services Market concluded that the regulatory framework at
that time was ‘outdated, inflexible, over-complex and insufficiently accountable or
transparent’. As a result, Sir David Clementi was appointed by the secretary of state
with broad terms of reference to consider reform. His report of the Review of the
Regulatory Framework for Legal Services in England and Wales, published in

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December 2004, recommended a number of measures focused on promotion of the
public and consumer interest.

Complaints of professional misconduct against solicitors are dealt with by adjudicators

at the Legal Complaints Service of the SRA and, in more serious cases, by reference to
the Solicitors Disciplinary Tribunal (SDT), which acts independently of the SRA. Appeals
from decisions of the SDT are to the High Court. Complaints of professional misconduct
against barristers are overseen by a complaints commissioner who filters complaints
before referral to the Conduct Committee of the Bar Council. More serious complaints
are referred by the Conduct Committee either to a summary procedure panel or a
disciplinary tribunal. Appeals from the decisions of those bodies are to the ‘visitors’ (the
High Court judges). The courts have generally deferred to a finding of misconduct by
the profession’s disciplinary bodies and have also been reluctant to interfere in the
levels of penalties on the basis that the representatives of the profession itself are the
best judges of misconduct and its seriousness. Dishonesty is regarded as the most
serious lapse in professional standards, and the usual penalty is striking off the roll of
solicitors or disbarment.

A passage from the judgment of Lord Bingham MR in Bolton v The Law Society [1993]
EWCA Civ 32 gives a flavour of the considerations which will be taken into account
where a solicitor (or barrister) faces a disciplinary tribunal: ‘Because orders [of
disciplinary tribunals] are not primarily punitive, it follows that considerations which
would ordinarily weigh in mitigation of punishment have less effect on the exercise of
this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often
happens that a solicitor appearing before the tribunal can adduce a wealth of glowing
tributes from his professional brethren. He can often show that for him and his family the
consequences of striking off or suspension would be little short of tragic. Often he will
say, convincingly, that he has learned his lesson and will not offend again. On applying
for restoration after striking off, all these points may be made, and the former solicitor
may also be able to point to real efforts made to re-establish himself and redeem his
reputation. All these matters are relevant and should be considered. But none of them
touches the essential issue, which is the need to maintain among members of the public
a well-founded confidence that any solicitor whom they instruct will be a person of
unquestionable integrity, probity and trustworthiness. Thus it can never be an objection
to an order of suspension in an appropriate case that the solicitor may be unable to re-
establish his practice when the period of suspension is past. If that proves, or appears
likely to be, so the consequence for the individual and his family may be deeply
unfortunate and unintended. But it does not make suspension the wrong order if it is
otherwise right. The reputation of the profession is more important than the fortunes of

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any individual member. Membership of a profession brings many benefits, but that is a
part of the price'.

The Courts and Legal Services Act 1990 also established the office of the Legal
Services Ombudsman which is charged with ensuring that the professional bodies for
both parts of the modern profession conduct fair, thorough and efficient investigations of
complaints from the public about their members. The ombudsman produces a public
report in response to a complaint, and although the ombudsman’s recommendations
cannot be enforced, he can publicise any failure to comply with his orders. Perhaps
unsurprisingly, given the history of complaints about lawyers set out above, the most
common of all complaints received by the ombudsman relates to lawyers’ fees.

The globalisation of legal services has brought with it the need to investigate whether
today’s huge corporate law firms can continue to be regulated under a ‘one-size-fits-all’
approach. In 2009 the Hunt and Smedley reviews have confirmed the need for change.
Essentially, the existing regulatory regime cannot fully accommodate the needs of the
corporate firms, including addressing the global nature of their work and recognising the
particular types of clients which employ their services. The interesting question has also
been posed whether the same ethical standards should apply when a lawyer acts for a
vulnerable client as compared with a large well-run corporate client, which will often
employ its own in-house lawyers. One of the more interesting aspects of the changes in
regulation which will be occasioned by the differentiation of corporate law firms and their
clients will be the extent to which it remains possible to apply time honoured notions of
legal ethics to lawyers and firms at opposite ends of a very wide spectrum.

1 Future ethical challenges 

1.1 Costs
The Statute of Westminster of 1275 introduced the entitlement of parties in litigation to
recover costs. With the coming into force of the new Civil Procedure Rules the courts
have been encouraged to adopt a flexible approach to awarding costs in litigation. This
movement was further developed by the Access to Justice Act 1999 which permitted,
for the first time in England and Wales, the recovery of success fees and premiums paid
for after the event insurance policies.

However, the new rules have become extremely complex and this area remains an
ethical minefield. A complex fee system can lead to substantial satellite litigation but, on
the other hand, a sophisticated fee recovery regime compensates the successful party,
allows those without means to litigate, deters vexatious, frivolous and other

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unmeritorious litigation, reduces delay and misconduct in proceedings and encourages
settlement. The contrasting position in the US, where provision of legal services on a
contingency fee basis is common, has been blamed for an explosion in the level of
litigation and for defensive practices by manufacturers and service providers. However,
many English lawyers believe that it is only a matter of time before contingency fee
arrangements are made lawful in UK litigation.

1.2 Money laundering

Compliance with anti-money laundering legislation is regarded by the Law Society as
one of the greatest challenges for solicitors today. During the past 10 years, the issue
has been addressed in legislation at both national and European levels, with several
different statutes imposing obligations affecting lawyers. These changes mark a
necessary exception to the solicitor’s ethical obligation of client confidentiality.

1.3 Ethics training

Legal ethics have historically been neglected in the education of lawyers. Indeed, the
amount of time which is spent on the teaching of legal ethics in the majority of
institutions in England is minimal. It is also interesting to note that the teaching of legal
ethics and professional responsibility in the US only became a required course in 1974
following revelations about the involvement of lawyers in the Watergate scandal. In the
UK it is likely that there will be an increased focus on the importance of ethics training at
university level and beyond.

1.4 Equal opportunities

The issue of equal opportunities among solicitors, barristers and the judiciary also
remains an ethical issue, with allegations of sexism, racism and other forms of
discrimination continuing to be heard in some parts of the profession. The Lord
Chancellor’s Department and the Bar Council commissioned a report in 1992 which
found substantial evidence of unequal treatment at all levels of the profession in respect
of gender, and it is a matter of fact that ethnic minorities are not proportionally
represented in certain parts of the profession. Clearly there is much work to be done by
the legal community before inequality of opportunities for lawyers can eventually be
consigned to the annals of history.

2 Conclusion
“The one great principle of English law is to make business for itself”. The English legal
profession has moved a long way from this public perception so vividly captured by
Charles Dickens in Bleak House. However, until the late 20th century the pace of change
has been slow.

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 The right to a fair trial, now enshrined in article 6 of the European Convention on Human
Rights, includes the right to a trial conducted in accordance with the recognised
principles of conduct of litigators and advocates. The parties to a dispute are entitled to
rely on the lawyers – on all sides – conducting the proceedings according to recognised
ethical principles. Although now embodied in professional codes and subject to
continuous review and refinement, the basic principles of legal ethics have stood firm for
many centuries. They have been in existence at least since medieval times and
probably from time immemorial. They have stood the test of time. These fundamental
principles of ethics for litigators and advocates guarantee a legal system operating in
the public interest and providing a fair and just trial for all who come before the English
courts.

 Mark Humphries has 25 years’ experience of contentious legal practice. Until

recently a litigation partner and head of advocacy at Linklaters in London, he is now the
director of his own commercial disputes firm Mark Humphries Ltd. He is a past
chairman of the Solicitors Association of Higher Court Advocates

Sources
Baker, The Legal Profession and the Common Law – Historical Essays (Hambledon &
London 2003)
Baker, The Oxford History of the Laws of England, OUP 2003
Cranston, Legal Ethics and Professional Responsibility, OUP 1995
Drinker, Legal Ethics, Columbia University Press 1953
Du Cann, The Art of the Advocate
Helmholz, Ethical Standards for Advocates and Proctors in Theory and Practice
Hilbery, Duty and Art in Advocacy
Lemmings, Gentlemen and Barristers
Rose, Of Ambidexters and Daffidowndillies: Defamation of Lawyers, Legal Ethics and
Professional Reputation
Rose, The Ambidextrous Lawyer: Conflict of Interest and the Medieval and Early
Modern Legal Profession
Rose, The Legal Profession in Medieval England: A History of Regulation
Pannick, Advocates, OUP 1992
Phillips, Ethics of the Legal Profession – A New Order, Cavendish Publishing Limited,
2004
Prest, Canon Law and the Law of England
Prest, The Rise of the Barristers

15
Wilson, Lectures on Advocacy and Ethics in the High Court

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