An independent commission is needed to improve integrity and effectiveness and tackle serious issues with honesty in the legal system, an expert investigating the Post Office scandal has said.
Lawyers are aiding irresponsible decisions and there is abuse of confidentiality and legal professional privilege, according to Professor Richard Moorhead. There is a need for "concerted action" to tackle system-wide failures.
The independent commission should work with government, the professions, the courts and regulators.
The proposal was made as part of this year's Hamlyn Lectures by Professor Moorhead, who is from the University of Exeter Law School.
In the lectures he highlighted the serious legal problems of recent years, including the cases handled for oligarchs; the threats to national security posed by professional enabling, alleged SLAPPs, NDAs, corruption and phone hacking.
He also warned of a culture of excessive aggression in legal work - suggesting things are legal that are likely not legal, including misleading and abusive handling of legal matters.
Professor Moorhead said any commission would need to be strongly led with a mandate to address a programme of reform.
He also called for "more capable, better resourced, and more respected" regulators. This may mean a single regulator and a single disciplinary tribunal.
He said: "We have to change the way lawyers think and behave. We have to put complete integrity and particular care not to mislead at the front of our thinking. We should turn away from lauding amorality and guard against harm."
Professor Moorhead said ways of engaging and constructively challenging judges on how their work influences behaviour and ethics in litigation and advocacy should be encouraged, whilst respecting their independence. Judges should get more resources and support to manage difficult cases.
A particular focus of reform should be on building and strengthening accountability systems for legal risk in organisations and the professions. This is likely to require changes to rules and guidance in relation to corporate governance.
The power of regulators to regulate in-house lawyers and support their independence needs consideration to ensure regulatory gaps are closed.
Professor Moorhead said regulators and courts could do more to emphasise and strengthen obligations to be independent and objective in the provision of advice and assistance to clients.
Scrupulousness, complete honesty, and particular care not to mislead, as well as responsibility of purpose, and consideration of forseeable consequences, should feature prominently in any professional code.
Fearlessness and the presumption that lawyers can harm third parties for their clients should be removed from the codes and guidance because they are used to justify unwarranted aggression from lawyers.
Professor Moorhead also recommended:
- Ethical practice should be a routine and proactive part of competence review for all lawyers in firms and chambers.
- There should be a mechanism by which individuals, teams, or their firms/chambers could undergo non-disciplinary investigation and analysis, to encourage lesson learning and remediation, not punishment.
- The role of the Compliance Officer in Legal Practice in solicitors firms should be reviewed and improved.
- There should be a full, independent review of the law on legal professional privilege.
Professor Moorhead said: "Lucid ethical thinking could be aided by modest changes to codes, better guidance and regulation, and a concerted programme of training. This may sound forbidding to practitioners and judges at first and it will require exceptional leadership and determination.
