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Financial Planning Webinar (13 November)
Warwick Law Fair (22 October)
Pupillage Fair (19 October)
Student Evening (2 October)
Imposter Syndrome Seminar (26 September)
BSB Equality Rules (19 September)
Employed Bar Garden Party (11 June)
FCA Enforcement Webinar (15 May)
Fraud Prevention Webinar (2 May)
Wine and Cheese (18 April)
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Ethics Webinar

Webinar - The Post Office Horizon IT Scandal
23rd January 2024

BACFI was privileged to host a distinguished panel of legal academics and professionals at its ethics webinar on 23 January 2024, “The Post Office Horizon IT Scandal”: Flora Page (barrister, 23 Essex Street), Dr. Alan Brener (Associate Professor (Teaching) Laws, University College London) and Professor Richard Moorhead (Laws, Exeter University). Flora Page is currently representing a number of the wronged Sub-Post Masters and Sub-Post Mistresses in the Public Inquiry into the Post Office Horizon IT scandal. Dr. Brener and Professor Morehead have written and blogged extensively on the scandal, in particular from the perspective of legal professional ethics.

When the BSB Handbook requires you to “promote fearlessly and by all proper means the client’s best interests” (rC15.1) what exactly does that entail? What is the position, for example, where short-term decision-making may result in some tactical advantage to a client, but it will be detrimental to the client’s long-term interests if not successful in disposing of matters and they proceed to trial? These were some of the knotty, ethical issues discussed by the panel within the context of the Post Office scandal where undoubtedly ethical boundaries were crossed. Indeed, as one panellist remarked, the Post Office scandal may yet prove to be the largest incident of legal professional negligence of a generation.

The panel observed that there had been a marked shift in the lawyer / client relationship in recent times with modern corporations now wielding disproportionate power over the lawyers that they employ and instruct. Consequently, employed barristers are increasingly finding themselves in the invidious position of having to give unpalatable advice in circumstances where it risks impacting their careers. The Post Office scandal highlights the bad behaviours that can occur as a result lawyers bending to the perceived will of an organisation and, if left unchecked, the serious miscarriages of justice and other undesirable outcomes that can result. The panel identified ‘corporate tribalism’ (i.e., the need to be a team-player), management hubris and siloed decision-making as examples of behaviours on the slippery slope.

The panel spoke of the risks of employing ‘clever legal strategies’ and noted that the Post Office scandal provided a salient reminder that lawyers are responsible for setting case strategy and they cannot hide behind their client’s instructions. The Post Office scandal saw the Post Office’s lawyers adopt the aggressive legal strategy of seeking the recusal of Mr. Justice Fraser, who was ultimately instrumental in shining a light onto the wrongdoing that had occurred. The panel reiterated the importance of independence and telling the client what they need to hear as opposed to what they want to hear. It is uncommon for lawyers suddenly to engage in ethical misconduct and, more often, it culminates from a series of smaller, incremental transgressions, for example massaging the facts along the way.

The webinar audience asked some thoughtful questions of the panel, including in relation to the role of directors and the lessons that could be learned from the financial services industry. In response, the panel observed that the current BSB Code of Conduct contained a ‘soup of problems’, not least in relation to inconsistencies with its SRA equivalent. It was felt that there is a need for additional guidance and support for in-house lawyers. However, the panel also stressed the importance to employed barristers of being on alert and taking a step back to examine their overall conduct of a situation and recognising where individual decisions might lead.

With special thanks to BACFI General Committee member, Laurence Fry, for coordinating the event. Professor Moorhead has also published extensively on the Post Office Horizon IT scandal on the following website: https://open.substack.com/pub/richardmoorhead/p/shutting-down?r=72sof&utm_campaign=post&utm_medium=web&showWelcome=true

BACFI Ethics Webinar Speaking Note

https://youtu.be/4qtDkvpMxHA (click this link to view the recording)

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