Another day, another corporate scandal – The Post Office – which raises questions, yet again, about the role and purpose of lawyers in society and their part, or not, in these scandals.
Richard Moorhead, professor of law and professional ethics at Exeter Law School, wrote in a blog, rightly uncompromisingly, that the case raised a broad range of professional issues.
“I hope that the BSB and SRA will investigate with all due alacrity not just to see if anyone should be held to account but also for the lessons that can be learned.”
He went on: “Many of the problems here are as much corporate governance problems as legal ethics problems but we should not let that fact drop between the two stools or linger for yet more years.
“If we ask the traditional question of all such scandals, Where were the lawyers? The only response is ‘Where weren’t they? Because they were either at the heart of it or ought to have been. Not solely responsible, of course, but importantly responsible.”
Paul Gilbert, Chief Executive of LBC Wise Counsel, a consultancy which works closely with in-house lawyers has written an open letter which he hopes in-house lawyers will send to their board and Executive colleagues in the light of the scandal. The final two paragraphs are as uncompromising:
“The role of lawyers in any business, including your lawyers in this business, is to protect your interests expertly and fearlessly. However, the role of lawyers can never be just about carrying out the wishes and directions of their employers. At the heart of what all lawyers do is to explicitly and diligently uphold the administration of justice.
No matter what the business imperatives or the pressure we all feel, we hope you know and welcome that we will not be silent if we need to raise concerns or objections to a decision, policy, behaviours or course of action that undermine our duties as lawyers.
We are proud to be employed here, and we hope you are proud to support us in fulfilling our role.”
Legal Futures reports that “Paul Harris, senior partner of Edward Fail Bradshaw & Waterson in east London, said only a full statutory inquiry could determine “how and to what extent, if any” the Post Office’s lawyers were responsible for errors or misconduct.
Mr Harris, who also acted for three of the defendants, said: “It is not clear who knew what and when and this in itself requires proper investigation.”
So, it looks like the focus of any review or investigation will, rightly, investigate regulatory breaches by lawyers, if any.
But the reviews must not stop there. They must forensically examine the chain of command linking the lawyers and “non-lawyers” at The Post Office.
They must acknowledge what Professor Stephen Mayson, author of The Independent Review of Legal Services Regulation (2020, S 4.12) called the “inherent tension” between lawyers and their employers.
And in the case of The Post Office their employers, the “non-lawyers”, are set out on the Post Office website:
“ How we run the business
Our Board
Our Board of Directors is chaired by Tim Parker. As Non- Executive Chairman he is independent both of the executive management of Post Office Limited and of its special shareholder. The Board comprises the Chairman, five other Non-Executive Directors and two Executive Directors.
Board responsibilities
The responsibilities of the Board include setting the business’ strategic aims, putting in place the leadership to deliver them, supervising the management of the business and reporting to the shareholder. There are a number of Board committees which deal with specific topics requiring independent oversight including audit, risk and compliance, nominations of the Board, pensions and senior remuneration. Each committee is chaired by a Non-Executive Director and operates within its own agreed, documented Terms of Reference
Our Group Executive
Below main Board level, the Group Executive (GE) is the most senior leadership team which is accountable to the Board for the day-to-day operations of the Post Office. It is made up of the Chief Executive and each of his direct reports together with the Company Secretary and is responsible for delivering performance measured against the corporate objectives set by the Board and agreed with the Post Office Shareholder.”
So where were these “non-lawyers” Where weren’t they?
Where were the NEDs? Where were the corporate governance checks and balances?
Who did the lawyers report to? What performance management system was used in their annual appraisals? Who decided what meetings they were allowed to attend or not? Did they experience ethical pressure? Were they allowed to do their best work? Were they heard?
The SRA will, I suspect rightly say that the Post Office lawyers should have “blown the whistle”, if they knew, because the SRA regulations require them to “act with independence”.
But the SRA knows what everyone knows: the inconvenient truth that in-house lawyers do not have the regulatory support they need to act with independence.
Despite many requests the SRA has not undertaken a Thematic Risk Review of the risks to society regarding the independence of in-house lawyers – and in this case – an appalling miscarriage of justice to individuals.
Had the SRA acted, many years ago when this matter was highlighted for the first time, then perhaps the Post Office lawyers might have been in a much stronger position (and the opportunity for misconduct or error reduced) – reporting directly to the Post Office Chair or SID and/or able to go above their heads to the SRA routinely and not in extremis, perhaps with “Officer of the Court” written into their employment contracts, and their law department regulated as a separate unit, as per the Mayson Report.
These steps might have helped avoid this catastrophe for the wronged and for what was once “a national treasure”.
But we’ll never know, will we?
Will we?
Ciarán Fenton
