Agency over technocracy: how lawyer archetypes infect regulatory approaches: the FCA example

By Trevor Clark (University of Leeds), Prof Richard Moorhead (University of Exeter), Prof Steven Vaughan and Dr Alan Brener (UCL Laws)

30 St Mary Axe also known as The Gherkin viewed from the South side of the Thames

6 April 2022

By Mr Trevor Clark (Lecturer, School of Law, University of Leeds), Professor Richard Moorhead (Professor of Law, Law School, University of Exeter), Professor Steven Vaughan (Professor of Law and Professional Ethics, UCL Laws) and Dr Alan Brener (Lecturer, UCL Laws).

Publication details

Clark, Trevor; Moorhead, Richard; Vaughan, Steven and Brener, Alan (2022) 'Agency over Technocracy - How Lawyer Archetypes Infect Regulatory Approaches', Legal Ethics, 10.1080/1460728x.2022.2059742.

Summary

This article looks at the contested role of in-house lawyers in regulated organisations in the financial sector. A recent Financial Conduct Authority consultation on whether to designate the head of legal of banks, insurance companies and other financial firms as ‘Senior Managers’ and the decision which flowed from it, reflected a flawed view of lawyers as a neutral technocracy of mere legal technicians; we show how the FCA’s decision is potentially damaging to the public interest and failed to take into account that in-house lawyers are often important decision-makers and influencers within their organisations. We put the case for an alternative view; that in-house lawyers are professionals, with agency that requires them to act in accordance with ethical norms and means they should be made more accountable for their conduct.