Journal

Upholding professional ethical duties

On 27 May 2025, the Regulatory Affairs Committee submitted CIPA’s response to the Legal Services Board’s (‘LSB’) consultation ‘Upholding Professional Ethical Duties’. The consultation paper can be seen online. Also see the report of the LSB presentation in the May Council minutes.

We refer to the Consultation document issued on 6 March 2025. In general, we appreciate the efforts made by the LSB to deal with some isolated egregious cases where authorised persons have not acted in an ethical manner. However, we are concerned that the measures proposed in the Consultation will place an undue burden on those regulators and authorised persons who deal with matters unrelated to the isolated cases to which the Consultation refers.

The Consultation refers in particular to conduct in connection with the use of NDAs and SLAPPs and to the Horizon case. These are generally dealt with by solicitors and barristers and not by any of the other authorised persons regulated by regulators other than the SRA and the BSB. We note that the Consultation indicates that most regulators did not provide any specific examples of instances of unethical behaviour and only referred to possible areas where improvement in awareness could be made. However, it appears from the Consultation that the LSB intends to place large burdens on all regulators and regulated persons to comply with the LSB’s proposed outcomes and expectations where there will be nothing to investigate and the data will not be available to collect. Thus, the burden will be grossly disproportionate to the effect it will have. We therefore urge the LSB to look more carefully into the effect that the proposed policy will have on regulators and authorised persons who do not deal with the sorts of egregious cases to which the LSB has referred.

In the particular, there is a danger that placing too great a burden on authorised persons working as registered patent attorneys will lead to a decrease in the regulated community. The vast majority of the work carried out by registered patent attorneys is before the UK Intellectual Property Office (UKIPO) and before the European Patent Office (EPO). There is no requirement in UK law for those practising before the UKIPO to have any qualification. To practise before the EPO, it is necessary to be on a List maintained by the EPO. There is no UK law governing entry on the List and anyone entered on the List is subject to regulation only by the EPO.

If regulation under the UK system becomes too burdensome or too expensive, there would be a distinct possibility that members of the UK regulated community would leave that community as they would be fully entitled to continue to practise before the UKIPO and the EPO without incurring the cost of the UK regulatory burden.

There are advantages to being within the UK regulated community, in particular for consumers who benefit from the services provided by registered patent and trade mark attorneys. We would like to encourage all our members to remain within the regulated community but this will be harder to justify if the cost and burden of regulation becomes too great. We would therefore urge the LSB to consider making it much more clear in the proposed policy (see paragraph 22 of the Draft policy) that, where any part of the registered community already predominantly acts ethically, the policy can be applied with a light touch so that no unnecessary costs and burdens are placed on these parts of the regulated community. As the Draft policy states in paragraph 8, regulatory activities must be, inter alia, accountable and proportionate.

With the above general comments in mind, we will now address the questions raised in the Consultation. [See the LSB’s proposals at
legalservicesboard.org.uk/wp-content/uploads/2025/03/PERL-Consultation-Document-February-2025.pdf.]

Question 1 – Do you agree with the proposed definition of professional ethical duties?

Answer – No.

Reasons – Although we agree with the general idea behind the definition, we suggest that it should follow the order set out in paragraph 6 of the Draft statement of policy attached as Annex A to the Consultation. It is clear from the rest of the Consultation that the main problem being addressed is that some authorised persons consider that their primary task is to act in the best interests of their clients, whereas they should consider that their primary task is to work to promote the rule of law. It therefore seems wrong that the duties should start with a consideration of the interests of the client and only later mention the promotion of the rule of law. It is therefore suggested that the definition should much more mirror the order set out in paragraph 6 of the Annex A. CIPA considers that the emphasis in the list of duties should make it clear that the client does not have precedence over the other stakeholders in the system.

A suggested improvement for the wording is:

Authorised persons have a duty to:

protect and promote the public interest;
support the constitutional principle of the rule of law;
if exercising a right of audience or right to conduct litigation, comply with their duty to the court;
promote the prevention and detection of economic crime;
protect and promote the interests of consumers;
encourage an independent, strong, diverse and effective legal profession;
act with independence and integrity;
maintain proper standards of work; and
provided that this does not conflict with the duties above, act in the best interests of their clients and keep the affairs of their clients confidential.

Question 2 – Do you agree with our proposal to set general outcomes?

Answer – Yes, but:

Reasons – We agree with the idea behind this question but we again consider that the details of the general outcomes need to be considered carefully for the reasons given above. The general outcomes should be considered to determine whether they are appropriate and proportionate, especially in the context of groups of authorised persons where there is no evidence of unethical practices.

Question 3 – Do you agree these proposed outcomes address the harms and behaviours presented in the evidence? Are there any further outcomes we should consider?

Answer – Yes, but:

Reasons – As noted above, the harms and behaviours to which the Consultation refers are either very specific and specific to certain groups of authorised persons or generic considerations of possible future harms. There is no evidence that such future harms are likely to occur and so it seems that the outcomes are biased against those groups of authorised persons where there is no evidence of unethical behaviour or propensity to unethical behaviour.

Question 4 – Do you agree that the proposed general outcomes should be met by regulators through a specific set of expectations?

Answer – No.

Reasons – The set of expectations has been drafted on the basis that the LSB wishes to deal with the harms and unethical behaviours seen in three specific areas of legal practice, as noted above. However, these particular harms and behaviours relate only to certain groups of authorised persons and their regulators. It is appropriate that the expectations should be focussed on these groups of authorised persons and their regulators. However, there does not seem to be any reason to apply these general expectations to all other authorised persons and their regulators. Therefore, we suggest that there should be a much more clear possibility for regulators of other authorised persons to be able to take a very light touch approach to the general outcomes where there is no evidence that harms arise and unethical practices are in existence or expected in respect of these other authorised persons.

Question 5 – Do you agree that regulators should demonstrate that evidence-based decisions should be taken about which expectations are appropriate to implement for those they regulate?

Answer – Yes, but:

Reasons – As noted above, there are authorised persons where the risk of there being any harms or any unethical practice is very low. As noted in the Consultation, IPReg reported that there were no instances of such harms or practice in connection with the authorised persons it regulates. This question seems to imply that all regulators need to carry out extensive investigations to determine which expectations should be implemented. This will place a financial and administrative burden on the regulators to carry out research which is unlikely to find anything. This adds a useless burden to the regulators and this will be passed on to their authorised persons.

This also seems to be inconsistent with Question 17. The basis for Question 17 is that there is a set time limit for implementing outcomes 1 to 3 and a second set time limit for implementing outcomes 4 and 5. If that is the case, then the regulators have no choice but to implement all outcomes and therefore all expectations. There does not seem to be any way to avoid doing unnecessary work.

It should therefore only be required that each regulator be required to provide a reasoned statement to the LSB as to which expectations have been addressed and which have not. The reasons may be supported by evidence if it is available but there should be no requirement to produce evidence if there is no reason to suspect that any relevant evidence exists.

Question 6 – Do you agree with the proposed outcome 1?

Answer – Yes.

Reasons – We agree that authorised persons should be required to be actively aware of their ethical duties throughout their careers and should have the skills to carry out their ethical duties.

Question 7 – Do you agree with the specific expectations proposed under outcome 1?

Answer – Yes, but:

Reasons – We agree that the regulators should set the standards for education and training but should not themselves provide the education and training. The provision should be the responsibility of the authorised persons and their representative bodies.

We also question the mention of ‘at appropriate regular intervals’. This sounds like an invitation to attend a course every three or four years so that the authorised persons can tick boxes on forms without actually taking into practice ethical considerations. Many regulators are going away from setting targets for hours of CPD and going towards more reflective assessment of CPD. The matter of ethical behaviour should be always in the minds of authorised persons and so we consider that it would be more appropriate to delete the quoted words.

Question 8 – Do you agree with proposed outcome 2?

Answer – Yes but:

Reasons – We agree with this outcome, provided that it does not become too burdensome for the regulators to produce the materials or for the authorised persons to appreciate what they mean. If the rules in particular become too detailed and specific, there is a danger that areas are missed and so disputes arise. It should be ensured that the rules are as general as possible and that specific examples are only given in guidance. We consider that an effective way for this to be dealt with would be to require all regulators to make it a rule that its regulated authorised persons act according to the final definition of professional ethical duties.

Question 9 – Do you agree with the specific expectations proposed under outcome 2?

Answer – Yes but:

Reasons – We agree with all but item III. This seems to be an order for the regulators to re-do work which has already been carried out by the LSB. There is a large amount of reference to circumstances which can affect ethical behaviour in the Consultation. Why should all regulators need to repeat this work? It is considered that such intelligence-gathering should be carried out by the LSB and transmitted to the regulators. The regulators should then be required to consider whether the intelligence gathered by the LSB impinges on its authorised persons.

Question 10 – Do you agree with the proposed outcome 3?

Answer – Yes.

Reasons – We consider that this is the most important point of the Consultation and is particularly applicable to authorised persons who work where non-UK ownership is involved, either in-house or for a firm. The Consultation refers to the culture and climate of the workplace. In cases of non-UK ownership in particular, the culture and climate can be dictated by the non-UK owners who may come from a jurisdiction where ethical standards are different. In such cases, the culture and climate may be that the client is always right and that the authorised person must do what the client wants, whether or not it is right or ethical. This can create a conflict with such owners that this is not how an authorised person under the UK system must operate or to take action when an authorised person observes or is asked to participate in unethical practices.

Many authorised persons are also subjected to a requirement to meet a stringent target for billable hours. This can lead to the authorised person carrying out any task given to them solely to meet the target. Under such a regime, it is again difficult to deal with possible unethical practices.

There is also the fear of negative repercussions. It is likely that an authorised person who brings up an issue of potential unethical behaviour with such an employer will find it difficult to progress in the firm and may lose their job or be forced to resign.

We note with approval the reference to mental health and wellbeing. Following practices which are solely client-focussed or are directed at billing targets can have detrimental effects on an authorised person and on the authorised person’s ability to recognise and act on possible unethical practices. In the IP field, where CIPA’s members practice, there are organisations, such as IP Inclusive and Jonathan’s Voice, which can assist in maintaining mental health and wellbeing. However, they do not provide a route for authorised persons to bring unethical practice to the regulator.

Thus, although there is support if an authorised person finds themselves in a difficult situation, there is less empowerment than there ought to be. Thus, we consider that more emphasis should be placed on empowerment rather than support.

Question 11 – Do you agree with the specific expectations proposed under outcome 3?

Answer – Yes but:

Reasons – In point I, we suggest changing this to making it a requirement for each firm or employer to have a system in place for anyone, not just the authorised persons, to report any possible unethical behaviours and to have those reports dealt with in an open and transparent manner. The system should also indicate to which body any authorised person can turn in case the matter is not settled to the satisfaction of the authorised person. If there is no route outside the firm or in-house department, then any system will be prone to failure. Protection of whistleblowers should form an explicit part of the expectations for authorised firms, not just a legal obligation imposed by statute.

Point II seems to be outside what any individual regulator can do. Unless the regulator is notified of a report, the regulator cannot support a reporting authorised person. If each regulator were required to provide a support structure, it would add unnecessary costs and burdens for each regulator. It would be better if there were an independent body to which any potential reporting authorised person could turn for support, whatever the field of activity of the authorised person. The support should be independent of the regulators so that the regulators are free to take independent regulatory action as appropriate in light of the reported incident and its outcome.

Point III seems to be the same as point I. Both require a system within each practice. If such a system is in place and known to all authorised persons, this will promote both compliance and an open and informed atmosphere.

Point IV places a large burden on each regulator which will add to the cost of regulation. The regulators should only be required to set the rules and deal with any complaints which arise from breach of the rules. Any practical guidance or resources should be provided by the representative bodies or a body set up to support reporting authorised persons.

Point V again places an undue burden on all regulators. How is a regulator supposed to ‘ensure’ that authorised persons foster the appropriate work environment? Are regulators supposed to interview each authorised person to determine whether this has happened? This would be an enormous burden. It is suggested that there should be a requirement for regulators to promote the desired open and informed environment and culture but should only be required to take action if any of its rules are breached.

Point VI should be expanded. Why is it limited to employers of in-house authorised persons? We consider that this should apply to all employers. It will be useful in particular for in-house authorised persons but would also be useful for authorised persons employed by firms with non-UK ownership or firms with too much emphasis on billable hours.

Point VII would seem to be a task more appropriate for the LSB. As the Consultation shows, the LSB already has the required contacts and so could provide a resource base for all regulators to consult. If each regulator is required to do this independently, there will be a large duplication of work and an unnecessary addition to the cost of regulation.

Question 12 – Do you agree with proposed outcome 4?

Answer – Yes, but:

Reasons – We consider that, as long as particular attention is paid to ‘appropriate’ in the outcome, most of this outcome is reasonable. However, there is a danger that one regulator may feel a requirement to conform with the practices of another regulator even though those practices are not required for their regulated community. Regulators will need to ensure that any tools and processes are appropriate for their regulated community.

We also consider that a requirement to ‘supervise’ will place on the regulator an undue burden. How is this to be carried out? Will the regulator have to inspect all the work of any authorised person to determine whether it is ethical? The regulators do not have the capacity to do this. If the regulator has supervised a task, and the task is not ethical, is the regulator the person ultimately responsible for any breach of the rules? We consider that a requirement to monitor is sufficient.

The last part of the outcome, regarding taking effective action, is what the regulators should be doing at present. If an authorised person carries out an action which is in breach of the rules, then the regulator should take action.

Question 13 – Do you agree with the specific expectations proposed under outcome 4?

Answer – Yes but:

Reasons – We agree that, in any approach to improving compliance with ethical standards, the use of all useful information must be encouraged. However, the way point I is phrased seems to place a large burden on each regulator to do the same work as all the other regulators, which seems like a useless duplication of work. All regulators have to report to the LSB on most of the topics present in these expectations and so it would be more sensible for the LSB to collate all this information and provide it to the regulators who can then make decisions based on a common set of data. Thus, it would be better to require the regulators to base their decisions on data supplied by the LSB and to provide to the LSB any data which is relevant to this issue.

As regards point II, we refer to the point we made above on outcome 3 that the problem is to provide support and this is not something a regulator should do. The regulator must be independent in any remedial action it takes and it cannot do this if it has supported a reporting authorised person in a matter. Thus, the support should be independent of the regulator.

Question 14 – Do you agree with the proposed outcome 5?

Answer – Yes.

Reasons – We agree that it is important to keep regulation relevant to current conditions. For instance, the introduction of AI, as referred to in the Consultation, could lead to unintended unethical situations and regulators will need to watch out for this. However, keeping up-to-date can also lead to less regulation. If measures adopted by a regulator in respect of any of outcomes 1 to 4 turn out to be irrelevant, then they should be removed. Regulators should always be looking to simplify the regulatory system so as to reduce the regulatory burden.

Question 15 – Do you agree with the specific expectations proposed under outcome 5?

Answer – Yes but:

Reasons – As noted above, it may be that future developments which will affect the way in which ethical matters arise. It therefore may be necessary to add new measures to those already in place to promote the primacy of ethical considerations in legal practice. However, it should be noted that developments can also make it possible to operate in a more ethical manner and so it may be that such developments will enable the requirements for regulation to be reduced. Regulators should always be on the look out for ways to make regulation less burdensome while maintaining the required standards in providing services to users.

Question 16 – Do you agree with our proposed timelines for implementation?

Answer – Yes but:

Reasons – It seems reasonable to expect that, assuming that the final outcomes and expectations do not contain more than is contained in the Consultation, meeting outcomes 1 to 3 within 18 months of the issue of the final document will be possible. It is considered that, were the suggestions we have made above to be adopted, such as the creation by the LSB of a single body for supporting reporting authorised persons and the use of the LSB as a central point for accumulating and communicating data, it may be possible to complete implementation before the 18-month deadline.

It is odd that outcome 5 is not included in the outcomes to be achieved in the 18 months. It seems that it will only be possible to meet outcomes 1 to 3 by evaluating proposed methods and indicators against present ones and ones used by other regulators and so outcome 5 should be a part of the whole process. This obviously should be an ongoing process and so would continue after the end of the 18-month period.

Question 17 – Is there any reason why a regulator would not be able to meet the statement of policy outcomes within the timeframes proposed? Please explain your reasons.

Answer – Yes.

Reasons – As noted above, a number of the actions required to meet the outcomes and expectations as proposed in the Consultation involve a large amount of research and investigation. It may be possible for a large regulator to do the research and investigation within the proposed timeframe but this may not be possible for a smaller regulator. Also, they will require an increase in expenditure which may not be within the usual budget of the regulator. These may prevent the smaller regulators from meeting the proposed timeframes and would also increase the regulatory burden as it may require an increase in practising fees.

These dangers could be avoided by adopting the suggestions referred to above by making use of the resources of the LSB to carry out the required data gathering centrally so that all regulators can use the same data resource to underpin its development of the measures it feels respond to the needs of those authorised persons it regulates. Similarly, having a single body to support reporting authorised persons provided by the LSB would reduce the regulatory burden and leave the regulators to deal impartially with any complaints which reach them.

Question 18 – Have you identified any equality impacts we haven’t considered which, in your view, may arise from our proposed statement of policy?

Answer – No.

Comment – It appears to us that any improvement in the working environment and climate and the way that authorised persons can report on actual or potential ethical breaches can only have a positive equality impact.

Question 19 – Do you have any evidence relating to the potential impact of our proposals on specific groups with certain protected characteristics, and any associated mitigating measures that you think we should consider?

Answer – No.

Comment – In the field of IP in which CIPA members operate, there is little opportunity for the measures, such as NDAs (in the sense used in the Consultation) and SLAPPs to be used. There are situations where equality issues could arise but we have no evidence that any such issue has arisen.

Question 20 –Are there any other wider equality issues or impacts that we should take into account and/or any further interventions we should take to address these in our statement of policy?

Answer – No.

Comment – Addressing EDI issues should be an essential part of practising in an ethical manner. However, EDI issues are dealt with in general legislation and there is a well-established background about this. It would over-burden the policy statement to re-state in detail all the well-known principles and practice relating to EDI. A general reference to following accepted practices in relation to EDI is sufficient.

Question 21 – Do you have any comments on the potential impact of the draft policy statement of policy, including the likely costs and anticipated benefits?

Answer – Yes.

Comments – As far as the field of IP is concerned, we consider that there is likely to be a negative imbalance between the costs of pursuing the statement of policy and the anticipated benefits. In the IP field, there is no evidence, nor even any allegation, that any of the problems referred to in the Consultation arise and so there is no requirement to take any action to correct a non-existent problem. There is a necessity to maintain this position but it appears that the measures IPReg takes at present are sufficient to prevent the sorts of behaviours to which the Consultation refers. IPReg has already specified that ethics is part of the curriculum for those taking the qualifying examinations and questions on ethics are present in each set of examinations every year. IPReg can also rely on its own messaging and on messaging provided by CIPA and CITMA to transmit any concerns and to notify those it regulates of any issues. Thus, placing further regulatory burdens on both our regulator and those regulated by our regulator seems to be disproportionate.

We feel that the same comments may apply to other smaller regulators and those regulated by them. It appears that the situations referred to in the Consultation may also be largely irrelevant to their practices and so, again, the measures may be directed at possibilities which in fact do not happen.

Question 22 – Do you have any further comments?

Answer – Yes.

Comments – One of our members attended the recent conference organised by the LSB in London. This was a very interesting and enjoyable conference. The present Consultation was announced at the conference and there was a session on SLAPPs in particular, which was very informative. Many of the attendees at the conference were clearly of the view that such matters as SLAPPs, NDAs and the Horizon issue were relatively rare and dealt with by a very limited number of authorised persons or firms. Thus, a number of attendees considered that the problem of unethical behaviour did not affect them. The same reaction has been heard from many of our members. Thus, there is a danger that most authorised persons will regard this Consultation as an over-reaction to some high-profile cases and therefore take less notice of the results of the Consultation than they deserve.

We therefore consider that more emphasis should be put on the more general problems which have been identified. In particular, we consider that the more important general issues which arise are those which result from pressures on employed authorised persons working where doing what the client wants or meeting billing targets are the primary concerns. The ways in which these pressures are dealt with vary to some extent between in-house and private practice but the same principle, that ethical behaviour should be the norm, should always apply.

The problem with these pressures is that they can lead to a much more hidden acceptance of unethical practices. Such acceptance can, as noted in the Consultation, lead to adverse effects on mental health and wellbeing. These are the more visible results of unethical practices but not all of these are visible. We therefore consider that outcome 3 is the most important part of the Consultation and emphasis should be placed on providing support for those suffering from mental health and wellbeing issues and providing a body for enabling reporting of unethical behaviour. It is considered that providing these measures effectively would enable a more general improvement in the avoidance of unethical behaviour and result in better value for money for all legal services.

On the Draft statement of policy, we suggest that the definition of professional ethical duties (paragraph 2) should be made more consistent with the list in paragraph 6 and the statements in paragraphs 11 and 12. Thus, acting in the best interests of the client should be placed below the more general responsibilities relating to the rule of law.

In paragraph 11, reference is made to three of the professions mentioned in footnote 61. This could give the impression that this policy is only directed at these three professions. This is highlighted by the terms used in the Consultation. It would be better if paragraph 11 began with ‘Regulated legal professionals…’ with footnote 61 appended to this to make it clear that the policy relates to all regulated legal professionals.