There have been a number of controversial recent cases at the Solicitors Disciplinary Tribunal involving junior lawyers pressured into making unethical decisions. Richard Burnham looks at how law firms can create an ethical culture and support millennials in making ethical decisions
If the media is to be believed, to describe a person as a “millennial” is to suggest that they harbour a mild obsession with brunches, social media and irritating Piers Morgan. In reality, a millennial is simply a fancy term used to describe anyone aged between the ages of 25 and 39. This means that new entrants to the legal profession are now more likely to be millennials: the average age of a solicitor admitted to the roll is 29. (But, of course, we live in increasingly diverse times, so you can no longer assume that new recruits to the legal profession are ‘young’).
This is an interesting challenge, given the characteristics that millennials possess. Having been born into environment of immediacy, they thrive on short-term objectives and new experiences – they are often thought of as impatient. They are not solely interested in financial incentives in their careers: many seek employment with firms that seek to improve access to justice by offering pro bono work or assisting impoverished members of society. This ethical focus should not be surprising. Millennials often have stout ethical maxims in their day-to-day lives, whether that is refusing to engage with businesses who do not pay their staff a living wage, practising vegetarian diets or avoiding non-recyclable plastics.
By 2025, 75% of the global workforce will be millennials, rocketing them into the driving seats of the profession and ushering in a new age of expectations and ethical approaches to legal practice. Until then, what challenges will this influx of millennial solicitors cause the profession?
Senior lawyers tend to consider millennials incapable of making the ‘right decision’ ethically because they lack the experience (and therefore knowledge) to do so. This can often be interpreted by millennial lawyers as “I’m clever, you’re dumb, I’m right, you’re wrong”. The ethical grounding of millennial lawyers may mean they truly want to make the right decisions for the right reasons (even if this comes at a cost to their firm or themselves), but friction with their senior colleagues may actually make them less likely to raise ethical concerns.
Millennials often form the view that their supervisors’ experience plays against them, blinding them with familiarity and making it difficult for them to see past any ethical bad habits they have picked up. They think more experienced solicitors miss the point of ethics-based regulation, and simply aim to keep out of trouble with their regulators, rather than behaving ethically in general.
This rift can be dangerous, because it creates a situation where neither junior or senior solicitors feel capable of discussing ethics, which may result in decision-making that adversely impacts clients. And if individuals feel unable to discuss their potential concerns, the firm risks these serious issues being hidden from them, and perhaps becoming much worse.
Several controversial strike-offs have spilled from the Solicitors Disciplinary Tribunal (SDT) involving millennials whose decision-making process had been influenced by external variables such as pressure from their supervisors, mental health concerns, or toxic work environments.
It is easy to see how this can happen. Junior lawyers may feel afraid to question their supervisors for fear of repercussions. While some firms welcome disclosure of potential issues at an early stage, others have a toxic work environment where mistakes are unforgiveable black marks; decisions that protect the firm are to be made even if they harm the client. It is much easier to justify an unethical decision in an environment where ‘everyone else does it’ or where ‘I was just doing what I was told’. Regardless, the message from the SDT is clear: inexperience is no excuse for dishonesty.
Most fee-earners at a firm can exert some amount of influence. The number of years a lawyer has practised increases their standing within a firm and means their directions may well be complied with by junior staff, unquestioned. A trainee solicitor is less likely to feel comfortable challenging the direction of a senior partner than a senior associate or fellow partner would be.
Firms which employ toxic environments where management and senior lawyers can bully junior lawyers out of making independent ethical decisions should be cautious. They may well be in breach of principles 2 and 8 of the SRA Code of Conduct 2011 if they do not. While the Solicitors Regulation Authority has not yet brought any proceedings, there is nothing to say they will not in the future, particularly following the outrage accompanying the recent SDT cases.
An open and non-toxic work environment goes a long way to ensuring that all lawyers feel able to discuss their concerns and sound out their ethical decision-making process. Lawyers, particularly junior lawyers, should not be made to feel they need to hide their mistakes. But this is easier said than done when the illusion of the legal profession is that lawyers are inhuman and incapable of mistakes.
So how can you achieve this in practice?
Provide solid ethics training to all members of staff.
Make sure your compliance officer for legal practice (COLP) is strong and impartial. Simply having an ethical sounding board can make a big difference for millennial lawyers, offering them the chance to speak impartially with a neutral third party about any decision they need to make, particularly if it conflicts with a decision of one of their superiors. This can, of course, be difficult in smaller firms, where the COLP may be the managing partner.
Encourage an open dialogue regarding mistakes made. Most firms would prefer to know about a mistake on a file at an early stage so that they and their insurer can take proactive steps to resolve the issue. However, at firms where (even unintentionally) mistakes are taboo, fee-earners (junior lawyers particularly) can feel they have to hide their errors. This can result in the issue becoming compounded, or make the fee-earner feel they should take steps to cover up their mistake. I once heard a litigation partner tell a very upset associate: “Thank you for telling me. Mistakes happen, that is what insurance is for.” This kind of open dialogue ensures that junior lawyers feel comfortable talking to management. We’re all human, after all.
If you manage junior lawyers, encourage them to raise ethical queries, rather than dismissing such queries as challenges to your authority. Appreciate the external factors that may influence a millennial’s decision-making process, and be aware of when a millennial may feel uncomfortable broaching the subject. If you disagree with the millennial’s point of view, fully explain why. Be their mentor, not their boss.
This article finishes with a case study which highlights the complexity faced by junior solicitors in making ethical decisions. While the possible solution may be clear to many reading, remember that a junior solicitor may fear losing their employment, causing potentially devastating financial impacts, particularly if they have student debt to repay. They may be concerned about the stigma of being a trainee who leaves a firm mid-way through their training contract. And unethical behaviour may well also be commonplace at the firm, making it much harder for the individual to challenge any specific unethical decision.
Case study: Covering up mistakes
Imagine you are a trainee private client solicitor in a medium-sized firm and are working with a partner on a straightforward will. You prepare the will, which is reviewed and signed by the client with the partner, while you are out of the office.
Three months later, the client dies and their executors request the will for probate. Upon review of the will, it becomes apparent that it has not been executed properly, because it has only been witnessed by one person. As a result, the client has died intestate and their estate is passing to persons they expressly drafted the will to avoid.
The partner asks you to sign and back-date the second witness section. They explain that it is clearly in the client’s best interest for the will to be admitted to probate, and there may be serious consequences for both of you if this is not done. You cannot afford to lose your job.
Relevant rules in the SRA Code of Conduct 2011
• Principle 1: Uphold the rule of law and proper administration of justice.
• Principle 2: Act with integrity.
• Principle 3: Do not allow your independence to be compromised.
• Principle 6: Behave in a way that maintains the trust the public places in you and in the provision of legal services.
• Outcome (1.1): You treat your clients fairly.
• Outcome (1.16): You inform your clients if you discover any act or omission which could give rise to a claim by them against you.
Potential ethical issues / professional breaches
You could do what the partner says, hoping the amendment is never discovered. Some solicitors may argue they are protecting their client’s interest. You could report the partner to a more senior person in the firm, (or even the COLP), hoping they will intervene. You could tell the estate’s true representatives (whoever they may be) that they may have a claim in negligence against the firm for its omission. Finally, you could speak to the partner about their request and the ethical considerations.
It is easy to see how it could be considered beneficial for the client to sign the document – to do so would put into play their ultimate instructions. Many junior solicitors may also consider signing the document because they are afraid of upsetting the partner or losing their job. However, it is clearly unethical to back-date the witness clause, as this would be dishonest, and would be considered as acting without integrity.
Subject to any confidentiality obligations, informing the representatives that the estate may have a claim in negligence against the firm is likely to be considered the most ethical approach, as it can be seen to be acting in the best interests of the client in a transparent way.
Another option is for the junior solicitor to speak to a senior colleague. But which one? Many will be more comfortable speaking with either a senior partner or the firm’s COLP. Some may feel comfortable speaking directly with the partner about the unethical ramifications, but this may be difficult for some.
Ultimately, a junior solicitor is responsible for their decision. It is immaterial whether a decision is made due to the direction of a senior solicitor.