All sorts of organisations like to undertake background checks on the people they work with. Employers routinely take references from job candidates: a very simple sort of example. But some organisations undertake far more comprehensive and rigorous background checks upon the people they work with, and the purpose of this essay is to consider the rationale for doing this, whether such elevated background checks are appropriate at all in order to permit personnel access to privileged information and/or activities; and if so then to develop a more systematic approach to how such background checks ought to be undertaken.
The two great proliferators in the world of background checks are lawyers and central government. In order to become a lawyer, or to work in a law firm, you have to undergo all manner of unusual and intrusive enquiries so that the legal regulator may be satisfied of what is typically called your "character": in other words, that you have the qualities of morality and integrity sufficient to exercise your duties as an officer of the court, and that you are not the sort of person liable to influenced to commit crimes or other wrongdoings in the course of your professional obligations under certain sorts of harmful third party influence or by reasons of greed or other improper motives. Government background checks for civil servants have much the same rationale but are undertaken rather differently. So these are two good examples to study to compare and contrast in assessing the most effective way of conducting background checks as the goals are the same but the methods are different.
Let us begin with some truisms.
It is entirely possible for a person who has not undergone any background checks whatsoever to have the very highest standards of honesty and integrity.
It is also entirely possible - and unfortunately it happens a lot - that a person who has undergone all sorts of background checks engages in conduct far below the professional standards expected of him or her.
People often know when they are being vetted, even if you don't tell them. It turns out to be a remarkably difficult process to hide. Both lawyers and civil servants undertake "secret" background checks on occasions, but they often turn out not to be so secret at all.
The consequence of point 3 above is that it is possible for the person whose background is being checked to play the system, by ensuring that such investigations or enquiries as may be being made reveal such information as this person wishes.
That is why the phenomenon in point 2 above is regrettably so prevalent.
The purpose of listing these truisms is to initiate a process of enquiry in the reader's mind as to whether background checks are really as effective and important tool as one might imagine. The short answer is probably that they remain essential and as a practical matter they cannot be abolished; but we need to think very carefully about how they are done and the reliability of the information they reveal and the assessments that are made as a result of them. Put straightforwardly, those assessments may be much less reliable than we would like to imagine and therefore they should be given more limited weight in the decision-making processes that use assessment data of this kind.
Here is a list of potential methods of vetting and reviewing the suitability of both lawyers and civil servants for sensitive office. The overlap is remarkable.
Character interviews are undertaken to assess integrity.
Criminal record checks are undertaken, including (exceptionally) in respect of so-called "spent offences", that is to say offences covered by legislation such as the Rehabilitation of Offenders Act 1974 which entitles a person not to answer questions about certain criminal offences they committed a long time ago in the past.
Questionnaires about lifestyle choices may be undertaken, although in the law these may be less politically circumspect than in some branches of the civil service.
References may be called, either with or without the knowledge or consent of the person being assessed. In the annals of the British Civil Service, the calling of references without the assessed person being aware of the fact in advance in part of what is known as the so-called "developed vetting" procedure. In law, it is a a periodic exercise undertaken by the Solicitors Regulation Authority or the Bar Standards Board in England and Wales, although it is typically triggered by some specific incident or complaint and it may take place upon first admission to the roll.
The Solicitors Regulation Authority in particular, one of the world's most exacting legal regulators, has a general authority to make such enquiries as it sees fit into virtually any aspect of an English solicitor's professional and personal life, in order to assess whether the solicitor is living up to the standards of integrity, independence and impartiality that membership of the profession requires. Its powers are very broad indeed, in contrast to most US bar regulators who do not undertake such open-ended enquiries.
There are certain specific qualities to the character and background check regimes of lawyers as opposed to civil servants. For lawyers, and in particular English solicitors, absolute honesty in all areas of one's personal and professional life is regard as tantamount; this principle can be pursued to extraordinarily exacting degrees. So where an English solicitor is issued with a penalty fare notice on a train for not having a train ticket or not having the right type of train ticket, for the purposes of the railway company and most others that is the end of the matter as long as one does not do it again. The person is given the benefit of the doubt that this was not intentional behaviour. Whereas the Solicitors Regulation Authority will typically demand an explanation from a solicitor issued with a penalty fare notice, in order to undertake an enquiry as to whether travelling without a ticket was an act of fare evasion, which is a crime of dishonesty. If the solicitor cannot provide a persuasive explanation that this was just an accident, the Solicitors Regulation Authority will typically strike that solicitor off the roll for life, because from the point of view of the regulator dishonestly travelling without a ticket on a train and failing to pay the due fare calls into question the solicitor's integrity and that might impact upon his or her independence in his or her professional work. American lawyers often gasp in shock when this author (who is an English solicitor) tells them of this rule. English solicitors are expected to act with the utmost honesty in every aspect of their lives, and this is considered a hallmark of the profession.
On the other hand, a number of legal regulators, including those in England, have over recent years changed their attitudes towards unlawful (and indeed lawful) recreational narcotics. It is possible, in England, to be struck off the roll of solicitors for being an alcoholic. If one's alcoholism is so severe that it affects one's professional work in such a way as to raise concerns about one's integrity, independence and impartiality, for example one might steal client money (over which English solicitors have an almost unique relationship of trust; they are allowed to hold client money for all manner of lawful purposes and they are held to exceptionally high standards in the way that they do this), then the solicitor will be struck off.
By contrast, the English legal regulators have become more pragmatic about the use of illegal drugs in recent years. The old rule used to be that any use of an illegal drug was cause for being struck off, on the basis that others might know about this and use the fact as improper leverage to cause an English lawyer to depart from his overriding duties of independence and impartiality. Then the rule was relaxed for marijuana, whose use was perceived as prevalent. The use of marijuana, even though it remains a crime in English law, will not now cause an English lawyer to suffer disciplinary sanction. The English legal regulators started to adopt a concept that there is a certain sort of legitimate private space in which even a legally regulated person is entitled to break the law - as long as they are not doing so dishonestly, and as long as there is no evidence that the consumption of an illegal recreational narcotic is affecting the person's professional capacities and jeopardising their duties of independence, impartiality and integrity. This reflects a broader change in social attitudes in recent years in which many countries have legalised certain types of marijuana, and the regrettable fact of widespread drug use in many societies has come to be accommodated by the law and drug use has started to be seen as a medical and social problem rather than a criminal one.
Another unusual feature of the English legal regulatory system is the duty to self-report one's own wrongdoings and the wrongdoings of other members of one's profession. This is an absolute duty and failure to do so is considered a breach of the principles of integrity and indeed a form of dishonesty. Hence if an English lawyer is convicted of any kind of criminal offence, then they are under an obligation to tell their legal regulator that this has occurred, and then to cooperate with such investigation as the regulator may thereafter undertake. It is in fact far greater a sin not to tell the regulator of one's conviction than the conviction itself. Lawyers are expected to have absolute integrity. Part of the quality of integrity is admitting your own faults and errors.
The obligation to report the wrongdoings of fellow members of one's profession is the source of much awkwardness. Like civil servants, English lawyers are under scrupulous obligations of confidentiality about the work they undertake and they can tell third parties virtually nothing about it. The inevitable consequence of this is that they tend to form social and intimate relationships with one another, because these are the only people with whom they can discuss the greater majority of the events taking place in their lives. So when you see your friend and colleague doing something wrong, you are obliged to report them to a regulator with potentially draconian consequences for that person. Imagine the following hypothetical scenario. During the course of social interactions, you note that your friend and colleague is drinking too much or is taking some sort of drug in concerning quantities or with concerning frequency. As an English lawyer, you are obliged to report that to the regulator - and, even worse for the personal relationship involved - you are obliged not to tell your friend and colleague that you have done so. While this rule is often ignored because it is so onerous, there have been some serious cases where the regulator has applied disciplinary sanctions to both lawyers: one who did something wrong, and one who did not tell the regulator about it.
Unfortunately this rule also gives rise to a lot of satellite litigation, as English lawyers write letters to each other accusing each other of professional misconduct and reminding them of their duty to report the other lawyer to their professional regulator. The use of professional misconduct complaints as a litigation tactic has increased exponentially in recent years and at the time of writing is driving much of the legal community bananas.
International law firms
Finally, we conclude with a few light-hearted observations about international law firms, and we wonder whether these observations might also apply to any other large government institutions with which the reader may be familiar.
International law firms have lots of foreign offices, all with somewhat different cultural perspectives upon the common task, and between which there are often a lot of misunderstandings; some lawyers (including this author) have found themselves as specialists in resolving these inter-office misunderstandings.
There is a category of lawyers, who in the world of international law are called "rainmakers", who travel around the world constantly, from one office to the other and to various other places to build relationships and investigate the operations of offices and other appropriate subjects of enquiry.
There is another category of lawyers, that in the field of international law are typically known as "fee earners", who work predominantly from a single domestic office and supervise the work of the rainmakers to ensure that it meets the appropriate regulatory standards and that the rainmakers remain safe and secure and to provide them with political direction, analysis and information.
International law firms are replete with protocols and procedures, many of which are about confidentiality and are even stronger in content than the statutory requirements.
International law firms have internal compliance functions, typically based in one of the larger offices, who oversee the work of all the lawyers, rainmakers and fee earners alike, to ensure that their work lives up to the standards of the international law firm network.
The compliance function may include algorithm-based regulation of communications whereby use of certain words in emails ore other electronic correspondence automatically triggers a human compliance review. Examples of words that may trigger compliance review are "kickback", "bribe", words associated with extreme political positions, and words associated with controversial political issues or countries. Swear words may also trigger compliance review, because notwithstanding the practical realities of life law firms like to maintain formal, correct records not interlaced with profanity.
A compliance officer may then form a provisional assessment on the basis of the associated documentation connected with the communication that triggered the compliance review, or they may contact relevant fee earners, rainmakers or other managers to make further enquiry.
Compliance officers are fundamentally helpful in their roles, seeking to maintain the integrity of the umbrella organisation and looking to resolve problems and provide constructive advice.
International law firms tend to keep colossal quantities of comprehensive records about virtually everything any lawyer does, including measuring the time they are at their desk and a variety of other personal and professional information. Much of this information is never used, but in case of internal enquiries it can be pulled upon for review.
We like international law firms. How about you?
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