Lessons for novices – and leaders

I started on a new hobby – sailing – rather late in life. I didn’t grow up in a sailing environment and it’s complicated and, if I’m being honest, it’s all still a little bit of a mystery.

The language is curious. Ropes are described as sheets (sometimes); sails have unusual names like ‘genoa’; and there’s a constant need to ‘trim and reef’. It requires teamwork; the yacht needs a competent crew who must pull together (sometimes literally) and understand the part they play in keeping the boat afloat.

Knowing that the boat can tilt at peculiar angles without capsizing takes a lot of trust. It’s interesting but scary at the same time. And now, after a prolonged interruption because of the pandemic, going back to sea seems scarier. Will I remember what to do and how to behave?

Strange times

These experiences make me think about law firms and how strange it must seem to someone joining a legal business for the first time; and indeed, coming back to office life after a lockdown or furloughed interruption.

Whether that person is a trainee or newly qualified solicitor, a paralegal or someone employed to provide non-legal services, they must quickly acquire the language of the industry if they want to be part of the team – and want that team to succeed.

They must demonstrate compliance with pre-existing standards of behaviour against which they will be tested.

I have often thought the regulatory and legal acronyms we use would provide enough materials for a pub quiz round. We have in our legal repertoire such abbreviations as SRA, TLS, RBR, COLP, COFA, NCA and SARs (the latter used for three different purposes).

The list is endless. We expect everyone to understand these but, quite honestly, why should they if they are new to our world? Remember genoa is not just a cake or a city…

Testing behaviour

The same is true of regulatory and ethical standards. Most employees will want to be good colleagues but will non-lawyers understand that in a law firm, this includes the need to sign up to and demonstrate professional behaviours?

Will they expect to be tested against these behaviours in their personal lives and during office hours? Actually, why should we assume they would understand this – why should we expect non-lawyers to appreciate the enormous burdens of the duty of confidentiality, or the fact that if they promise to do something, this may be regarded as an undertaking or that they need to take care with social media usage?

Everyone in the firm will be tested by the regulator against the regulatory and ethical duties contained in the SRA standards and regulations. Everyone must understand the SRA principles, the professional conduct behaviours in the SRA code of conduct for firms, and the duties to protect client money under the accounts rules.

Honesty, acting with integrity, acting in a way that instils trust and confidence are values which, when breached, have consequences that go further than simply an employment issue. Never forget the SRA has the power to make section 43 orders prohibiting the employment of non-solicitors in SRA-authorised firms without its prior permission.

There have been numerous disciplinary findings against non-solicitors working in SRA-authorised firms, which prove that the SRA extends its regulatory reach to these individuals.

Enforcement powers are used both in respect of matters where there is a direct connection with client protection, but also in respect of deeds which are undeniably wrong, but not directly connected with the delivery of legal services.

These are examples of unethical behaviours which recently resulted in section 43 orders:

• A probate manager accepted a gift of £20,000 from an elderly client without informing the firm or insisting that the client obtained independent legal advice
• A paralegal signed a consent form to obtain records and told the other side’s solicitors that the form had been signed by his client
• A graduate member of CILEX forged his employer’s signature on the portfolio papers he had prepared for his application to become a CILEX fellow
• A personal assistant was paid an interest-free loan by her employer to buy a travel season ticket but used the money for other purposes

Firm managers and compliance professionals must have confidence that all colleagues are team players who understand the rules, neither being fair weather sailors nor sailing so close to the wind that they stop. Safety messages are vital.

A law firm’s right to offer legal services is dependent on its continuing authorisation. In other words, behaving to the required standards and not upsetting the regulator is essential.

Missing the point

Everyone must hear the same messages when they join the law firm and these messages must be communicated and understood from day one. Too often, the induction process is regarded as the responsibility of the human resources team and deals only with employment matters.

This misses the point that all individuals are being inducted into the ways of a regulated business with professional standards and other duties which must be understood.

Put another way, all individuals – regardless of background, legal experience or job role – must understand that they will be tested to high standards because they are employed in an authorised law firm.

Now that we are moving into another phase of our pandemic journey, do these messages need repeating? From day one, the regulatory and ethical messages should include the following:

• You are working in a regulated business. That’s a different experience from working in an advertising company or department store or wherever you last worked.
• If you are a trainee, aspiring to become a solicitor, how you behave now has lasting repercussions.
• If you are a non-solicitor but a qualified lawyer, how you behave now will be of interest to both the SRA and your own regulator.
• The SRA is interested in everyone in the firm; anyone could find themselves having to justify their actions to the regulator.
• Even solicitors do not have unlimited rights; these individuals only get a certificate and the right to practice for a year at a time and must continue to demonstrate ethical behaviour.
• Clients must have confidence in law firms. We keep their secrets (ok, most of the time and we do need to explain the legal exceptions to this concept). We put their interests first, our word is our bond, we don’t allow anything or anyone to cloud our judgement. We are expected to behave professionally.
• Holding other people’s money is a big deal. Clients need to be able to trust us to keep their money safe and there are complicated regulatory hoops we need to jump through.
• Things go wrong. An email will be sent to the wrong person, you may forget to ask your client to sign a document or similar, and the knee-jerk reaction must not be to try and hide that fact.
• The firm has compliance officers with specific roles in ensuring that conversations are started with the SRA at the right time. It’s important to know who the COLP and COFA are.
• It’s equally important to know that colleagues are not telepathic, so how and when to tell them about things that have gone wrong, or worry the individual, is important.

It is unwise to assume that everyone who joins the firm will understand the significance of working in a regulated industry and the role they play in maintaining the firm’s reputation and authorised status.

The benefits of taking the time to explain such points cannot be underestimated. The firm has responsibilities to the SRA to demonstrate effective governance in action and this must extend to all colleagues. Are you delivering the right message to your novice sailors?

Tracey Calvert is a consultant at Oakalls Consultancy Limited oakallsconsultancy.co.uk