The new ethical turn

Recent events have once again raised a recurrent question in the public’s mind: where were the lawyers? When something goes wrong that public opinion thinks the law or regulation should have prevented, this question predictably resurfaces. This can include corporate collapse (Carillion, Thomas Cook), financial failure (Northern Rock, RBS), other public scandal (Post Office Horizon, Weinstein), and ‘dodgy dealing’ (aggressive tax schemes, enabling the movement of illegally obtained property).

To be fair to lawyers, it is not always just their profession that is singled out – accountants and regulators also often draw equally strident criticism and condemnation. But in almost all cases, observers are tempted to wonder whether lawyers should have done something: were they involved sufficiently closely to advise properly (or perhaps too closely involved); were they excluded when they should have enquired more diligently about what was going on; or were they even in some sense complicit in the questionable behaviour of their clients? Sometimes, the question is less ‘where were the lawyers?’ and more ‘we know they were there: what were they thinking?’

These are legitimate and important concerns, and the problematic activities typically touch on the lawyers’ professional ethics. This becomes an even more important consideration when the response that the lawyers offer is then itself couched in terms of ethical duties. The answers are too often defiant, evasive and uninformative: there are references to the duty to ‘act in the best interests of clients’ and to respect ‘client confidentiality’, as well as to legal professional privilege and the claim that ‘we advise, the client decides’.

Increasingly, civil society is neither impressed nor persuaded by these explanations. The pressure is growing for lawyers to justify their actions more explicitly and transparently. Patience and unquestioning acceptance grow thin when lawyers seek to use professional standards to justify misleading other parties and the court (Post Office Horizon), the inappropriate use of non-disclosure agreements or strategic litigation against public participation (Post Office Horizon, Weinstein), or the representation of oligarchs and kleptocrats in the movement of illicit funds (usually based on a ‘right to representation’).

There is, in short, an ‘ethical turn’. With increasing focus on the justifications offered for lawyer behaviour that some find questionable – or even objectionable – there is a need to re-examine the ethical foundations of legal practice. This is now happening on several fronts: the Legal Services Board has a stream of work exploring professional ethics and will soon be issuing a policy statement as a precursor to further regulatory intervention to support ethics and the rule of law; the recent Hamlyn lectures by Professor Richard Moorhead have offered a searing analysis of the present state of lawyers’ ethics; the Institute of Business Ethics is about to publish the report of a taskforce set up to examine business ethics and the legal profession, particularly the role of solicitors in purportedly facilitating or enabling kleptocracy and grand corruption (full disclosure: I am a member of the taskforce); and my own work on the need for, and meaning of, ‘acting in the public interest’ in the second supplementary report of the Independent Review of Legal Services Regulation.

This outbreak of concerted activity is not coincidental; it represents increasing disquiet in several quarters. Even some lawyers are mindful of the growing threat to the rule of law and the reputation of their profession.

As with all matters that stray into the ethical and moral domain, there are few ‘right’ answers. But that does not justify lawyers knowingly venturing into the grey areas and then claiming disingenuously that they are ‘just doing my job’ or ‘fulfilling my professional duties’. The belief that ethical imperatives arise outside of oneself from other sources, rather than being personally generated or internalised, permit forms of ethical distancing. 

As a result, personal responsibility for behaviour that others might regard as ethical or unethical is side-stepped and it somehow becomes a matter for those others to explain or justify.

Rather than avoiding ethical discussion, it is time for a more open dialogue of ethical matters within and among law firms, and for a more considered explanation of the ethical basis on which solicitors take on clients and how they then proceed to represent them.