Like all professions, lawyers are subject to ethical standards and rules which usually impose duties which are higher than they might owe to a client if they were not a member of the profession. They may be imposed by law or by a professional Code of Conduct.
The different professions categorise ethics in different ways, but they all involve the following main issues:
- Integrity – which tends to cover what lawyers do in their private lives;
- Duties to the court, which usually override the other duties;
- Duties to the client, including the crucial duties of confidentiality and avoiding conflicts of interest, and also covering commercial relationships;
- Duties to third parties – e.g. witnesses;
- Duties to run the business properly, including having regard to equality and diversity principles.
At times, all of these will conflict with lawyers’ economic interests (they lose a client, or need to take steps to comply with the rules). This tension has arisen most recently in the debates about referral fees. The Bar and, indeed, many solicitors, regard the payment by lawyers of referral fees as corrupt and likely to compromise clients’ interests. Others see these as facts of life and are not clear exactly where the difference between legitimate marketing and an inappropriate referral fee lies. The issue has excited the Ministry of Justice in respect of criminal legal aid.
It’s essential, both for clients and for the justice system that lawyers should be independent – so that they can provide impartial advice and be trusted by the courts. There have been concerns recently about (a) how the large global firms stand up to their global clients and (b) how in-house lawyers manage their roles when challenged by their Boards or Chief Executives. The latter is getting particular attention from academics.
Business and Human Rights
The legal profession is still looking at how it responds to the UN Guiding Principles on Business and Human Rights. While firms have control over their business decisions on how they manage their procurement and supply chains reasonably easily, problems arise when providing advice to clients who want advice on work that may be perfectly legal but raise human rights or ethical doubts. How far is a law firm required to police their client’s intentions? How would law firms refusing to act for a particular client affect that client’s own right to legal advice? Certainly Kofi Annan at the 2015 IBA Conference argued that lawyers ought at least to be advising their clients to do the right thing.
A Question of Trust
The SRA’s recent consultation on how it should deal with lawyers who fall short of their ethical duties is now closed. It raised some questions about the relative seriousness of particular breaches and will, doubtless, have resulted in interesting discussions: is fare dodging incompatible with being a solicitor? One thing that struck me was a relatively benign approach to solicitors who were in contempt of court – they are still officers of the court, aren’t they?
While it’s an interesting debate, perhaps a more fruitful approach might be to help the overwhelming majority of solicitors who want to comply with their ethical standards.