Regulating Legal Professional Ethics – speech by Matthew Hill, Chief Executive of the Legal Services Board

On 9 February 2024,  Matthew Hill, Chief Executive of the Legal Services Board, delivered a keynote speech at the Westminster Legal Policy Forum event on legal professional ethics in the UK. His speech is below.

Speech by Matthew Hill, Chief Executive at the Legal Services Board

The Legal Services Board is the oversight regulator of legal services in England and Wales. It is a statutory body established by the Legal Services Act 2007. We are independent of both Government and the legal professions. Together with the legal services regulators we oversee, we have a duty to promote a series of regulatory objectives, including protecting the public interest, supporting the constitutional principle of the rule of law and maintaining adherence to the professional principles, all three of which are of central importance to today’s debate 

For most of our existence we have focused on securing independence of regulation and on what you might describe as consumer-focused approaches to regulation. That was necessary and we have made a lot of progress. In recent times we have turned our attention increasingly to issues that are arguably more fundamental. Issues that do to the heart of a what it means to be a lawyer and the obligations owed by lawyers to clients, to the court and to the broader public interest and questions of how and indeed whether those interests are being properly balanced. We have been driven to ask these questions by a series of circumstances that have played out very publicly. Many have been mentioned already today. 

The dominant feature of the landscape of course is the Post Office scandal, which seems every day to reveal fresh outrages. But it is hard to avoid the conclusion that some of the failings of legal ethics – indeed one might say professional values – at the heart of the post office scandal are manifested in other ways that have become matters of broad public concern.  The use of non disclosure agreements to cover up wrongdoing like sexual misconduct, for example. The aggressive pursuit of journalists and other public interest actors to silence justified criticism masquerading as claims for defamation. The facilitation of kleptocrats and criminals seeking to take advantage the legitimacy afforded by the UK legal system. 

Now it is customary at this stage for people like me to issue a disclaimer in order not to hurt feelings of give offence. And the sort of thing we might say is that “the vast majority of lawyers behave perfectly ethically all of the time”. Let me say I have stopped saying this. Not because I do not believe it to be true, but more because I don’t think anyone can actually demonstrate that it is. It has become an article of faith, which to my mind has no place in a rational debate about the future of legal ethics. 

Instead I am going to say that I think there are two statements that I think are almost certainly false. The first is that “all lawyers are crooks”. The other is “it’s just a few bad apples”. In between those two statements, however, lies a very complicated landscape, and one about which we probably ought to be more honest with ourselves if we are to drive the sorts of improvements that I think the public deserve. 

Now I am not going to try to add to the analyses you have heard and will hear today from people with much more direct experience and expertise than mine of what happens when legal ethics and good practice are not sufficiently honoured. I cannot add, for example, to the analysis of Professor Moorhead on the Post Office Scandal, to the powerful testimony of Zelda Perkins of what happens when the law is used to protect the powerful at the expense of the weak, or the tireless and effective campaigning of Susan Coughtrie and colleagues in relation to SLAPPs. 

Instead I would like to set out three linked points that I think legal regulators, and indeed leaders in the sector, need to focus on as a matter of priority. They are, in turn: 

1. The first is accepting that there may – indeed is likely to be – a strategic failing with current approaches to regulation. While we have seen some moves by regulators to reflect public concern – for example the warning notices issued by the SRA on SLAPPs and NDAs – it has been slower and less extensive than I think any reasonable observer would now consider justified. I do have some sympathy for the regulators in this respect. They frequently face stiff and concerted opposition to attempts to make regulatory interventions. But it seems to me that public concern is now so widespread that a continued lack of energy from the regulators and indeed the professions themselves to grapple meaningfully with the issues is starting to look stark and indeed mildly ridiculous. For clarity I am not talking about stepping up individual prosecutions of individual lawyers – there will be a time for that as we have heard already. What I am talking about is asking the question “how are these things happening despite our system of regulation”?
2. The second point I would urge regulators to seize is the importance of turning intent into results. You can have all the guidance, warning notices, codes of conduct you like, but if you cannot turn that into real visible results, so that people who have suffered harm can see that there are consequences for the wrongdoers, it is all rather pointless. If you publish a warning notice on SLAPPs, for example, and then dismiss all the complaints brought under that notice, pretty soon people are going to lose faith. If that happened it would likely be a matter of grave concern to the LSB and to many others.
3. Finally, I think there is cause for scepticism about the ability of the hundreds, even thousands of rules, that make up the various regulatory codes of conduct across the sector are actually capable of driving the positive behaviours and values that the public has the right to expect from legal professionals. I know it is a provocative thing to say, but I frequently wonder whether it might be possible to be in apparent full technical compliance with, say, the BSB or SRA handbook and still be a really bad barrister or solicitor. It may be that there has been too much focus on individual transgressions by individual lawyers and not enough focus on societal risk, leadership, culture, ethos and values. 

To round off my words with something a bit more positive I will say that at the LSB we have been building a programme of regulatory change in relation to legal ethics since 2021. During that time we have seen a growing prominence of ethical and rule of law issues on the agenda and in public debate. The fact of today’s conference and the breadth of contributors it has attracted is good empirical evidence of that. But it really is time now to drop the defences, roll up the sleeves and tackle the issues head on.  

I will end the sermon there.