Lawyers should be prepared to justify their actions when claiming to act in the public interest, says a leading UCL law professor in a new report, that cites both the Post Office Horizon and Harvey Weinstein scandals.
Legal Services Regulation: the Meaning of 'the Public Interest' is the latest in a series of reports by Professor Stephen Mayson (UCL Faculty of Laws) looking at the regulation of the legal services sector.
In his landmark report in 2020, Reforming Legal Services: Regulation Beyond the Echo Chambers, Professor Mayson called for all legal services providers to be regulated. Currently only those providers offering 'reserved' services (such as conducting court proceedings or preparing the necessary documents for the sale and purchase of property) require authorisation from a legal services regulator, whereas those offering 'non-reserved' services (such as giving general legal advice or will writing) do not.
In his new report, Professor Mayson says that some lawyers are pursuing their clients' interests at the expense of the public interest, despite claiming otherwise, and calls for all lawyers to be prepared to "articulate and record a public interest justification for their decisions and actions". This, he says, would be a "significant step forward".
In the report, the public interest is defined as maintaining the fundamentals of society (such as the rule of law and the administration of justice) as well as securing the legitimate and equal participation of individuals in society.
His new report takes into account the Post Office scandal, which saw more than 900 sub-postmasters prosecuted for stealing because of incorrect information from the Horizon computer system. It has been called the UK's most widespread miscarriage of justice.
Professor Mayson, an Honorary Professor of Law at UCL, said: "By pursuing a self-interested version of their clients' interests, these lawyers have forgotten that they are members of a public profession that owes duties to society generally (on whose behalf they are granted their licence to practise), as well as a consequential obligation to be accountable for discharging their professional duties in the public interest.
"Greater transparency and accountability would be a significant step forward in maintaining the standing of the legal profession.
"It would also lead to a better understanding for all if lawyers' decisions could be tested openly (within the proper limits of client confidentiality) if their behaviour is called into question."
In his report, Professor Mayson highlighted the inappropriate use of NDAs as a recent example of unprofessional conduct by lawyers.
He said this included where NDAs were used to prevent the investigation of potentially criminal or wrongful acts or the injured party from seeking justice, adding that their use in relation to Weinstein's behaviour was one of the best-known examples.
Professor Mayson also cited the misuse of NDAs in the case of the Post Office scandal, as well as other concerns including advancing a case that is contrary to the evidence, failing to disclose relevant evidence, and frustrating the administration of justice.
He says: "This list represents a serious indictment of the behaviour of legal advisers in the Horizon cases, and there seems little doubt that each instance represents an example of unprofessional behaviour.
"The scale of the injustices, the length of time over which the misconduct occurred, the number of lawyers involved in those occurrences, and the general observation that both the Solicitors Regulation Authority and the Bar Standard Board have noted an increase in reports of lawyers misleading the courts, all strongly suggest a pervasive and persistent turn in the nature of the legal services market.
"There is no sense in which the evidence of so much of the lawyers' discreditable actions emerging during the [Post Office scandal] inquiry can be said to be consistent with the obligations of members of a public profession, with their duty to the public interest and the interests of justice, or (even) with the best interests of their client.
"If such behaviour is allowed to continue, or becomes more widespread, the legal sector would be in danger of being seen as a harmful or 'noxious' market."
This, Professor Mayson explains in his report, is a market that produces outcomes that are detrimental to society or citizens or that exploit those who are vulnerable.
"There can be no doubt in my mind that the prevailing interest must always be the public interest. This is why, despite ministerial reluctance to prioritise the regulatory objectives in the Legal Services Act, protecting and promoting the public interest should be the predominant objective to which all others are subordinate.
"A more overt consideration of the public interest should encourage better articulation of the basis for any conclusion or action, as well as the motivation that underpins it, and so enable more informed testing of the assertion made," he says in the report.
Professor Mayson's review has explored issues raised by a 2016 Competition and Markets Authority study which found that the legal services sector was not working well for individual consumers and small businesses and that the current regulatory framework was unsustainable in the long run.
His 2020 report supported that conclusion, saying the legislative framework under the Legal Services Act 2007 was outdated and had created a regulatory gap where some consumers were exposed to unregulated providers with no or limited prospects for redress if harm was caused. The report recommended that the primary objective for the regulation of legal services should be promoting and protecting the public interest.
Earlier this year, the Justice Select Committee said that "it would be wrong for the Government to ignore the conclusion" of Professor Mayson's 2020 report.
Solicitors Regulation Authority (SRA) guidance already requires solicitors to be able to justify their decisions and actions in order to demonstrate compliance with their obligations under the SRA's regulatory arrangements. This new report specifically reinforces that requirement in relation to the public interest.
