Mayson: Legal sector could become a “noxious” market
Lawyers seem to have forgotten that the public interest trumps the client interest and this needs to change, Professor Stephen Mayson has argued.
If behaviour such as those underlying the Post Office scandal became – or were perceived to be – “systematic, persistent, pervasive or structural”, then lawyers would have “lost all legitimacy in claiming to be a profession, let alone a public profession”.
He defined a ‘public’ profession as one where the duty to the public “always outweighs any conflicting duty to the client” – it came with the “privilege” of professional status.
Professor Mayson said: “Unfortunately, this understanding does not appear to permeate modern legal practice. It needs to be restored.”
Legal Services Regulation: the Meaning of ‘the Public Interest is the second supplementary report to his Independent Review of Legal Services Regulation, published in June 2020, which said all providers of legal services, whether legally qualified or not, should be registered and regulated by a single regulator.
The first supplementary report, in 2022, said legal regulation was not protecting consumers from harm – both in their inability to access services and when things go wrong – meaning structural reform was more urgent than ever.
The principal recommendation of the 2020 report was that the primary objective for regulating legal services should be promoting and protecting the public interest. The latest report looked at the public interest more closely.
Professor Mayson defined it as concerning “objectives and actions for the collective benefit and good of current and future citizens in achieving and maintaining those fundamentals of society that are regarded by them as essential to their common security and wellbeing, and to their legitimate participation in society”.
Regulatory intervention to protect and promote this was then “justified if it secures the fabric of society as well as the participation of individual citizens in it”.
The traditional academic view of the legal profession as “values-neutral”, or morally detached, was increasingly being challenged from within and beyond the profession, he argued.
“Indeed, arguably, lawyers are adding to their own challenges here by strategically identifying with the organisations and work of various market sectors that they actively seek as clients, or even making public statements about the sort of clients that they will not act for.”
Recent developments have put the issue under the microscope. These included “the representation of supposedly undesirable or unworthy clients (such as kleptocrats) or causes (such as activities that lead to environmental harm), the use of abusive non-disclosure agreements or threats of litigation intended to hide illegal or questionable behaviour or silence public investigation or critics, or the successive revelations about the role of lawyers in the Post Office’s pursuit of those wrongly accused of financial crimes in sub-post-offices”.
In many cases, the honorary professor of law at University College London said, “the proffered justification that the lawyers involved are simply pursuing their professional duty to act in the best interests of their clients does not sit well with the outcomes”.
If such behaviour was allowed to continue, or became more widespread, the legal sector “would be in danger of being seen as a harmful or ‘noxious’ market”, Professor Mayson said.
He stressed that the structure and enforceability of private transactions and property rights in accordance with the law were enabled and sustained by the public nature of the rule of law, the administration of justice and the role of lawyers.
“Accordingly, subject to the strict and appropriate application of client confidentiality and legal professional privilege, even otherwise private matters can be a legitimate public concern when those matters offend the public interest.”
Professor Mayson said: “By pursuing a self-interested version of their clients’ interests, these lawyers have forgotten that they are members of a public profession that owes duties to society generally – on whose behalf they are granted their licence to practise – as well as a consequential obligation to be accountable for discharging their professional duties in the public interest.
“Greater transparency and accountability would be a significant step forward in maintaining the standing of the legal profession.
“It would also lead to a better understanding for all if lawyers’ decisions could be tested openly – within the proper limits of client confidentiality – if their behaviour is called into question.”
Last week, the leading figure on legal ethics in the UK, Professor Richard Moorhead, called for the creation of an independent commission charged with improving “honesty, integrity and effectiveness in the use of law” so as to change the way lawyers “think and behave”.
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