Ethics Hub

Supporting the constitutional principle of the rule of law is one of the nine regulatory objectives set out in the Legal Services Act 2007. The CLSB has a statutory duty to promote this objective – and the other regulatory objectives – through our regulation of Costs Lawyers. Our regulatory rules aim to ensure that the professional conduct of Costs Lawyers is consistent with, and supports, the rule of law.

This page aims to clarify Costs Lawyers’ obligations regarding ethical conduct and upholding the rule of law, including what to do when faced with an ethical dilemma. It should be read alongside the Costs Lawyer Handbook and the other resources in the Ethics Hub.

The rule of law

Like all legal professionals, Costs Lawyers have a professional and ethical duty to uphold the rule of law and the proper administration of justice. This duty is reflected in the principles set out in the Code of Conduct.

There is no single agreed definition of the ‘rule of law’, however, Lord Bingham set out eight principles that make up the rule of law:

1. The law must be accessible and so far as possible intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
5. The law must afford adequate protection of fundamental human rights.
6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
7. The adjudicative procedures provided by the state should be fair.
8. The rule of law requires compliance by the state with its obligations in international law as in national law.

Ethical conduct

Ethics is a system of principles and philosophy concerned with the behaviour and conduct of individuals in society. Everyone has ethical principles in their lives, including professional and personal ethical principles, societal principles, cultural principles, and more. These principles are shaped by our education, experiences and influences, and inform our choices about what to do in a given situation. The practical application of ethics in a professional context can help to decide which course of action to take when faced with ethical dilemmas and competing interests in your work as a Costs Lawyer.

The key principles of professional ethical conduct are enshrined in the Code of Conduct and derive from the five professional principles set out in section 1(c) of the Legal Services Act 2007. Examples include maintaining your independence, acting with honesty and integrity, and keeping the affairs of your client confidential. However, professional ethical conduct is not limited to compliance with your regulatory obligations, and it is not just about avoiding acting in a way that would breach the Code of Conduct. Professional ethical conduct is wide-ranging. It encompasses behaviour and values that you should exemplify when carrying out your work, such as treating others with dignity and respect, recognising how your professional conduct affects the culture and society that you work in, and considering broader issues of corporate and social responsibility.

Why is this important?

Ethical conduct is an important part of upholding the rule of law and the proper administration of justice. By upholding the rule of law and acting ethically, Costs Lawyers help to ensure access to justice, the protection of human rights, the equal application of the law to all, and public trust in the legal system. Conversely, unethical conduct undermines the rule of law and access to justice, and diminishes public trust in the profession as a whole.

Recent events such as the Post Office Horizon scandal have increased public scrutiny of lawyers’ conduct, placing even greater emphasis on the importance of acting in accordance with your professional and ethical obligations.

Costs Lawyers whose conduct falls below the expected standard may find themselves subject to a complaint or disciplinary sanctions by the CLSB. As set out in our policy statement on enforcement and sanctions, the CLSB is primarily concerned with taking enforcement action against serious breaches, not those which are merely trivial. Behaviour involving dishonesty, lack of integrity, significant harm to consumers, or behaviour that poses a high risk to the public interest, the reputation of the profession or the administration of justice, will always be serious.

In addition to its vital relationship to the rule of law, ethical conduct also has positive benefits for the profession, firms and individual Costs Lawyers. Being perceived as a Costs Lawyer or firm with high ethical standards and values can help to attract new business and retain existing clients, and have positive benefits for recruitment into the profession. A recent study showed that a firm’s perceived ethics and values have an impact on recruitment, with three quarters of study respondents agreeing that they would not join an organisation whose values did not match their own, even if they were offered more money. A majority of respondents were also looking to effect positive change through their work as a lawyer.

Ethical dilemmas and your obligations

The principles in the Code of Conduct set out what is expected of Costs Lawyers. You must ensure that you comply with the requirements of the Code. However, as stated earlier, professional ethical conduct goes beyond simply ensuring that you comply with your regulatory obligations.

Ethical dilemmas arise when the best course of action is not clear-cut. For example, when the ethical course of action may have a negative outcome, or when the needs of different parties are in conflict. Ethical dilemmas may pose questions of conflict between your duty to promote the proper administration of justice and the requirement to protect the interests of your client. You should be aware that your obligations to your client do not override your duty to promote the proper administration of justice and maintain independence, nor do they override your duty to uphold the rule of law and consider the public interest.

Ethical dilemmas can arise in many situations and affect Costs Lawyers at all stages of their careers. They are not limited to Costs Lawyers at senior levels of the profession, or only to your relationships with your clients. You may encounter ethical issues in your work with other legal professionals, your colleagues and other third parties. When thinking about ethical conduct, you should therefore consider it in the context of your interactions with your clients and others, as well as in the context of the wider profession, and the public interest.

What is considered ethical conduct and values are shaped by societal and cultural expectations that are constantly evolving. There is sometimes no ‘right’ answer to complex ethical questions that occur in professional and legal contexts, which are themselves complicated and nuanced. Each scenario will be different, and the ethical challenges that arise in one area of law may not occur in another. For example, an ethical question that arises in a costs context may be very different to that which arises in substantive family law litigation.

In practice, every ethical challenge will have unique characteristics and you must decide how to meet your professional obligations on a case by case basis.  This means that you must exercise professional and situational judgement, and give consideration to any ethical issues at hand, when considering how to act.

Regardless of the situation you are facing, you should always consider your obligations under the  Code of Conduct, and ensure that you are familiar with the Guidance Notes in the Costs Lawyer Handbook. If you are in doubt about what steps you should take, you should consider consulting a senior colleague. You can also contact us directly for assistance.