As director of Oakalls Consultancy, and as a former employee of the Law Society and the Solicitors Regulation Authority (where she had a variety of roles including senior ethics adviser as well as helping draft the SRA handbook), Tracey Calvert is one of leading UK voices on compliance.
With the publication of her new book for ARK Group, In House Ethics in Practice, Tracey provides a practical, easy-to-read guide on the ethical behaviour that is expected of in-house lawyers. As the only book currently on the market dealing with the subject, we sent some questions her way to find out more about it to hear her thoughts about the current regulatory issues facing in-house counsel and what can be done to stay on the right side of the regulator.
What made you decide to write In House Ethics in Practice?
I had already written an ARK book about ethical behaviours in private practice and it seemed logical to develop the theme by writing about ethical behaviours in the in-house world. From my experience as an ethics adviser with the Law Society and the SRA, I was aware of the misunderstandings that can arise when working as an in-house lawyer, as well as how important it is to understand the behaviours that must be demonstrated.
Having worked as a lawyer in both private practice and in an in-house capacity, did you find that the same ethical principles applied? Or were there specific key elements you found different?
The basic ethical principles apply regardless of the environment in which a lawyer practises. However, it can sometimes be more difficult to apply the correct behaviours in the in-house environment when acting for someone who is not only your client but also your employer. Sometimes it is necessary to manage the expectations of an employer who may not have an understanding of the regulatory framework within which you must operate.
With over 25,000 in-house solicitors now registered in the UK, why do you think more people are considering it as an alternative option to a law firm?
In-house practice is becoming increasingly popular as a first-choice career path. It offers a lot of variety and also the opportunity to progress in ways which may not be possible in the private practice environment.
What do you think are the biggest ethical challenges that in-house counsel are faced with today?
In some in-house environments, it is a challenge to convey to the employer why being a regulated person makes you someone who must demonstrate agreed standards of behaviour to an independent regulator – the SRA. The SRA has the right to question what you are doing and also has the powers to discipline you. In other contexts, the challenge may be that the individual’s regulated status needs to be compatible with the requirements of the environment in which they are operating which may be subject to its own form of regulation, such as when employed in the financial services industry or similar.
Throughout the years, how have you seen focus shift towards the in house sector from the regulator?
The need to regulate proportionately, to manage risks, and to demonstrate that the regulatory objectives are being met, means that the SRA needs to show that it is regulating the whole profession regardless of the environment in which individuals are practising. This is a change and in the not too distant past, the tendency was for the regulator to focus more on private practice. Because of this, the regulator is now playing catch-up in terms of working out what is actually required in terms of proportionate regulation of the in-house sector. Be prepared for changes in the next couple of years whilst the SRA reviews the application of its Handbook requirements
Why is knowledge about the SRA Principles and SRA Code on Conduct so essential for an in-house lawyer?
In-house solicitors must be able to display ethical behaviours and it is essential to have a good knowledge of the SRA Principles and the SRA Code of Conduct. The Principles apply to all solicitors regardless of how they practise, and the SRA has already undertaken initial work with the Code and with application provisions for in-house practice. Breaching Principles and Code outcomes will create disciplinary and regulatory issues for the individual concerned. It is absolutely no defence to argue that anything about your employment has stopped you from acting ethically and therefore every solicitor must ensure that they have the requisite knowledge of what they must do and have the ability to demonstrate that they are acting ethically.
What do you think is the best way for in-house lawyers to avoid a fine from the SRA?
Simply by acting ethically. Understanding what are the non-negotiable features of being a regulated person and ensuring that, where necessary, inappropriate expectations on the part of the employer are challenged.
In House Ethics is available through the ARK store for only £50.