Hill: Regulation needs to support ethical decision-making
Lawyers can sometimes be “too inclined” to act unethically or use a “mistaken” adherence to an overly narrow view of the rule of law to justify questionable conduct, major new research has said.
Such a view leads them to conclude that, just because something is in their client’s interests or is not forbidden by a law or rule, it is not unethical.
This “must be wrong”, the study said.
There needed to be a “contextual view” that meant “some means of advancing a client’s interests, even if not clearly prohibited, can offend shared understandings about fair play or the actual meaning of a law”.
But the study’s analysis of ethical risks suggested that lawyers “are sometimes too inclined to engage in professionally questionable, and potentially even illegal, actions without fully reflecting on the legal rules and interests engaged”.
It found the potential for the rule of law to be challenged by certain forms of lawyer conduct was “widespread and significant”, and that lawyers have a “mistaken and frequent adherence to the narrow view of the rule of law when falling into error, and that is where many of the more borderline (and problematic) situations arise”.
What does it mean for lawyers to uphold the rule of law? was commissioned by the Legal Services Board for its project looking at how regulators can best clarify, support and incentivise ethical practice that upholds the rule of law.
It was written by Professor Richard Moorhead of Exeter University and Professor Steven Vaughan and doctoral student Kenta Tsuda, both of University College London.
“Many of the examples that we explore involve divided loyalties: on one hand, obligations to a particular client; and, on the other, duties to the collective (to the court, to the administration of justice, to the wider public interest),” they said.
“The particular social role of lawyers requires them to act in the best interests of their clients and as agents of the rule of law.”
But while it was generally agreed that lawyers were of “critical importance” to the rule of law, there has been little effort to explain how, they said.
Further, the meaning of the rule of law itself was not settled. As a result, the authors urged “scepticism of claims that the rule of law demands any particular response to a regulatory issue or that it ascribes to lawyers freedom from restraint or scrutiny”.
They explained: “A lawyer’s behaviour is not necessarily consistent with the rule of law merely because a superficial claim can be made that they are exercising a right for a client. For example, that I have a right to bring a claim does not necessarily mean I have a right to bring a particular claim in a particular way. Other questions have to be asked and answered.
“There is a narrow view of the rule of law which says that professional regulators may not inhibit the ‘rights’ of clients to access zealous advocacy, and there is a broader view which says that overly zealous advocacy jeopardises and sometimes breaches the rule of law.”
The study put forward seven elements of a legal and professional commitment to uphold the rule of law, such as helping to challenge inappropriate and arbitrary uses of power, supporting citizens with their legal rights and protecting them from state and other coercion, and applying their expertise to help clients understand and navigate the law.
It also stressed that the role for the lawyer as an agent of the rule of law was “at least as strong beyond court-based dispute resolution”, such as when drafting contracts, investigating misconduct and advising on compliance.
The academics said “less deliberate behaviour” may give rise to rule of law problems as well.
“Substandard work which leads to the compromising of the client’s or others’ rights may give rise to rule of law concerns, be that professional negligence or inadequate professional services.
“A body of academic research on criminal defence services, for instance, has tended to suggest that poor defence practice compromises due process for criminal defendants. Competence as well as ethical problems are relevant to the rule of law.”
The study listed several ways in which lawyers’ conduct can undermine their commitments to the rule of law, such as discriminating against potential clients, representing likely wrongdoers in a way that supports their continued wrongdoing, abusing or taking unfair advantage of other parties, silencing claimants, and facilitating “creative compliance with the law”.
But it said that whether behaviour falling within these descriptions was actually improper depended on a “judgement exercise”.
For example, “silencing a claimant with an NDA is not necessarily automatically improper; but if it is done in an improper way (in breach of the SRA Code or BSB Handbook and guidance, for instance) or for an improper motive (such that it perverts the course of justice), it then threatens the rule of law”.
The academics said that ideas of lawyer neutrality and that they should not be identified with their clients “properly help deflect criticism of lawyers simply for doing their job”.
But, equally, rule of law arguments could also be made “that lawyers cannot simply relinquish any judgement in the act of taking on a client… the non-identification principle does not seem to us to exclude all moral criticism, or regulatory choices, around representation”.
Previous research had shown that practising lawyers in England and Wales “have only a very limited understanding of the professional principles promulgated by their respective regulators”. The report concluded that the rule of law had to be embedded within the rules, guidance and practices of regulators and legal service providers.
This could be achieved by continuously developing an evidence base about the risks posed by lawyer misconduct to the rule of law, adapting the rules etc accordingly, and understanding the challenges lawyers face at various levels.
“The rule of law is foundational to a healthy society and lawyers foundational to that health. Lawyer independence and integrity in striking the balances that a healthy society needs is foundational to that too.”
LSB chief executive Matthew Hill said: “The LSB is committed to ensuring regulation supports ethical decision-making and addresses any existing regulatory infrastructure weaknesses.
“This review gives us a greater understanding of the importance of the rule of law in underpinning rules and guidance for the profession, and builds on our evidence base for how the profession can target negative behaviours that can erode public trust and confidence.”
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