Ethics: a matter of compliance
A recent conversation with a TV broadcaster underscored an important question in relation to professional ethics, relevant to lawyers. That question being whether acting ethically means acting in accordance with professional regulations or something different to that.
In a broadcast context, I learned that what TV producers, presenters and delivery teams consider unethical is a competitor organisation not following the standards by which everyone else is bound. They are not focused on right and wrong or potential harms, but whether not following the rules provides an unfair advantage. An example might be how criminals or victims are depicted in a documentary or how the impact of war is reported, which results in, say, high viewing numbers. This will be considered an ‘ethics’ issue, with industry outcry driven by the lack of a level playing field. On this they check each other’s homework and evaluate their own.
It may not be surprising to learn that the focus in the entertainment industry is not on the why or the good of the standards, or what you would do if there were no or conflicting rules, but on whether your competitor is being held to them. However, what may be surprising, as well as confronting - for lawyers and their regulators at least - is that by virtue of this definition, the entertainment industry may have greater focus on ‘ethics’ in practice than lawyers do.
It is common in the legal sector for ethics to be taught at law school and then to languish at the back of the attention shelf long after, rarely dusted down, certainly in commercial practice, as often confirmed when I ask about practices and workflows. Academic studies have long revealed the same, such as in the book In-house Lawyers Ethics by professors Moorhead, Vaughan and Godinho. The news is awash with scandals in which ethics appear to have played little to no part in decision-making informed by lawyers every step of the way, nor in the processes and controls that surrounded that decision-making.
Is this any wonder, if we in the legal profession see ethics as a nebulous topic and one that has little bearing on the cut and thrust of corporate reality, only relevant to obvious criminality? The opposite is in fact true: ethics is actually about legal compliance and the holding of standards across the board.
Lawyers are bound by professional and regulatory obligations set out in their rules and codes. These obligations are a requirement of practice. They are law. They are, as the Solicitors Regulation Authority describes them, ‘the fundamental tenets of ethical behaviour that we expect all those that we regulate to uphold’. This is law, therefore, with ethics baked in. Acting with independence and integrity and in a way that upholds the rule of law and the administration of justice is a baseline legal requirement - not a nice to have extra or up for debate.
What I am proposing, therefore, is that in the legal profession we actively recognise ethics as legal compliance at the very least. In this we would do well to:
Re-read - and regularly - our requirements of practice.
Recognise them as laws with which we must comply.
Establish operational governance that ensures that compliance.
This removes confusion about how much of ethics is about conscience, right and wrong, justified ideals or a pervading narrative. It provides common language we can all understand, moving us into the compliance space no different to integrating the latest privacy, AML or payments regulations, with the same eye to responsibility and potential stakeholder and societal harm. Here is the law, here is what we need to do to comply, here is how we deal with conflicts and uncertainty.
When our professional ethics and regulation are law, why apply a different standard of rigour to them?
This is not to say we stop talking about ethics. Ethics should be active in our parlance and practice around decision making. However, we can use ethics interchangeably with compliance, understanding that integrity is the level of responsibility legally required. It is ethical to comply with the law, unless it is not, in which case the law needs to change and there is a process for that.
We may attribute a range of differences between the legal profession and the broadcast industry, including differences in vocational calling. However, whether we apply an ‘everyone has to do it’ approach to professional standards or a greater connection to the societal why behind them, we can end up in the same (without harm) place if we are all actually holding and held to that same standard in practice. Longer term, we are more likely to make unacceptable trades if we are disconnected from purpose, but that is the subject of another post.
There are many learned souls who write extensively on ethics and this proposal is alongside not instead of that great work. It is to provide a simplicity in our approach in the legal profession as regards ethics, at a time when clarity of thought and practice seems atrophied in this area and yet the stakes are so high.
The simplicity being that ‘legal ethics’ as a concept is interchangeable with compliance. Ethics is not something on top or outside of the rules of practice: it is a legal requirement of them. This is the law for every legal practitioner, of which ignorance is no defence.