A central tension in professional ethics is balancing the public interest, and the public interest in the administration of justice, with the best interests of the client. The SRA promote a worthy endeavour, their Question of Ethics page. The problems are often of a rather mundane nature (though I imagine the SRA will pick issues which they get a lot on their helpline). Glancing idly at it today, I noticed this:
Q. I act for a client who is currently remanded in custody. One of the client’s relatives has today called in to the office to leave some papers. I suspect, from something he said, that my client may have access to a mobile telephone that is not permitted under prison rules. The client is intending to telephone me later today to discuss his upcoming hearing. Can I take the call?
A. Bearing in mind your duty to act in your client’s best interests, and given that you do not know for certain whether the client is using a mobile phone, you can take the call. However, you must raise this issue with your client, explaining the position under the prison rules and making it clear that you will not accept any call in future that you suspect is made on a mobile phone. To do otherwise could put you at risk of being found in breach of rule 1.06 (public confidence) of the Code. Similarly, you should make it clear that you will only contact your client through the normal means.
Now I do not disagree vehemently with this advice but it seemed to me (on admittedly superficial consideration) that there are a number of alternative and plausible options. One is that, if taking a call that they suspect is in breach of the rules should be refused the second time, it should be refused the first time too. The SRA seem to be saying, it’s okay to turn a blind eye just this once. My initial thought would be why? One approach would be to say, “I cannot take this call” immediately, tell the client why and hang up. My instinct, which may also be wrong, would be that the lawyer should a) find out quickly the urgency and seriousness of the client’s need to make the call, weight this against the breach of the rules and take a decision which properly balances the interests of justice (is the risk posed to the client in not taking the call serious enough to justify tolerating a breach of prison rules) and unless persuaded that there is a need to take the call they should terminate it on the basis that it risks bringing the profession into disrepute. I quite accept however that others may have different views, which leads me onto my main point.
The SRA are about to embark on outcomes focused regulation where they have to persuade firms to think for themselves a bit more about what constitutes ethical behaviour. A minor, but perhaps not insignificant way, of doing this would be to have a) more controversial topics for their question of ethics page and/or b) to permit discussion/comments on those questions. Most practitioners would ignore them of course (as I suspect others would) but some would not.