Posted by The Law School
9 August 2024The 2024 Hamlyn lectures will be delivered by Professor Richard Moorhead, Professor of Law and Professional Ethics at the University of Exeter.
The Post Office Scandal has alerted the nation to trouble in the legal world and the profession to problems in its ranks.
To those more accustomed to looking at lawyers’ ethics, the problems are less surprising. They suggest bad decisions of course, taken by bad people sometimes, but also bad systems and cultures too. The consequences of the Scandal were unparalleled for those who owned and worked in Post Offices and their families, but the problems that were exposed with the lawyers were unsurprising, ugly manifestations of a certain kind of professional orthodoxy. We see a clue about how important those problems are in the way they spread so widely across all segments of the legal professions, junior and senior lawyers, in-house and independent practice, barristers and solicitors.
These lectures will argue it is time to change the way lawyers think and behave, and how courts, clients, and regulators set their expectations. As well as fair and rigorous enforcement, the intellectual frameworks of lawyers need refreshing, and the institutions they work within strengthening.
This lecture will consider what drives good lawyers towards ethical blunders. Traditional notions of lawyers’ ethics, ideas such as fearlessness, zeal and Cab Rank neutrality, will be examined as will the human frailties that all humans, even – perhaps especially – lawyers face. We will consider how such ideas can drive lawyers towards disaster. Examples will be taken from the Post Office Scandal but also elsewhere. I will suggest traditional notions of ethics are flawed; that rather than protect the rule of law, they render it vulnerable.
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This lecture shifts the focus from the individual to their institutional contexts. Lawyers operate in organisations, and within courts, nurtured on the cultures of litigation, that can reinforce each other’s vulnerabilities, giving rise to ‘extraordinary orthodoxies’ that can pollute sensible and just decision-making driving cover-ups and false narratives. Such orthodoxies are morally loaded, pathologically tactical, and explain many of the actions of lawyers in the Post Office Scandals and other cases. The idea that these orthodoxies culminate in the creation of legality illusions will be developed to illustrate the need for a richer but simpler, socially meaningful notion of professional ethics that can have practical traction.
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This lecture will suggest potential routes to invigorating lawyers’ ethics. It will suggest reframing professional thinking so that lucid, practical, meaningful instantiations of integrity and independence match client loyalty. It will ask, does good judgment (and indeed the law) demand a place for morality in professional decision-making? And if so, what kind of morality? And how should uncertainty and risk be managed proportionately and without paternalism. An agenda for professional rule changes, regulatory practice, education, the courts, professional privilege and corporate governance is suggested by the orthodoxies the Post Office Scandal reveals; its victims demand our attention, and this lecture will propose ideas for action.