Having dealt with arguments against changing the status quo in the last chapter, this one considers what reforms are necessary. A range of proposals will be explored. These can be divided into those aimed (i) at addressing client fraud; (ii) at creative compliance; and (iii) at strengthening the lawyer's counselling role. The first include up-the-line-reporting and strengthening the protection of in-house lawyers. The second comprise amending the SRA Code to require compliance with the spirit of the law and restricting legal professional privilege. The third involves assigning a role to lawyers to act as ethical counsellors. The chapter also considers expanding third-party rights of action. The proposals in the main apply to both in-house and external lawyers. It has been argued throughout that the former have an important corporate governance role to play and may often be better placed than external lawyers to do so.
Strengthening the gatekeeper role of in-house and external lawyers: up-the-line reporting
England is out of step with the United States and Canada in not having rules which directly address up-the-line reporting by lawyers of misconduct. In the United States this is dealt with by Part 205, which was promulgated by the SEC in response to the Sarbanes-Oxley Act 2002, by the ABA Model Rules, and in the professional conduct rules of the state Bar societies. The professional conduct rules of the Law Society of Upper Canada, which regulates lawyers in Ontario, where the Canadian Stock Exchange is based, also require up-the-line reporting.