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‘Where were the lawyers in the financial crisis?’ asks Stephen Mayson

Says lawyers should protect and promote the public interest

4 September 2014

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The issue of when lawyers should act in the public interest was raised during a Q&A session at the Westminster Legal Policy Forum this morning.

"It is all part of a balancing act about how you behave and how you make judgements about acting in the best interests of clients, and sometimes that isn't pursuing the client's interests to the ultimate degree; it is perhaps telling the client that, in their own enlightened best interests, there are some things that they ought not to be doing,” said professor Stephen Mayson.

"'Where were the lawyers in the financial crisis?' is one of the questions that keep coming back as an ethical issue."

Mayson's comments were provided in response to a question posed by Martin Coleman, global co-head of regulation and investigations at Norton Rose Fulbright and a member of the board of the Solicitors Regulation Authority.

"Obviously the principal duty of a lawyer is to protect the client and it is overridden in certain circumstances, such as where there is a duty to the court, money laundering - very specifically-defined circumstances," commented Coleman.

"It does seem to me that the danger of a more general duty to promote or protect the public interest is that there are many cases where the lawyer is seeking to defend the individual person or company against the state and maybe an individual accused of crime or tax avoidance issues, and the government would define its interest as the public interest. Is there not a danger in the suggestion that there should be a general duty on lawyers to promote or protect the public interest?"

Responded Mayson: "I wouldn't equate the public interest with whatever the government says it is and, clearly, if there is a dispute between the state and a citizen, it is a judge's duty to determine what ultimately is in the public interest.

"I'm slightly concerned that any lawyer should go into his or her working life with the notion that their principal objective is to serve clients.

"It seems to me that, if you are an officer of the court, you do generally have different and sometimes competing interests."

Mayson noted that "accountants have a duty to act in the public interest, but that doesn't seem to stop them from acting in their clients' interests as well."

Speaking at a later session, Sir Michael Pitt, chair of the Legal Services Board, added that engineers face similar competing interests.

"We have responsibility as engineers to the environment, which can be in tension with client demands," he said. "We need to work through those dilemmas and do the right thing".

This article was updated at the request of Stephen Mayson. 

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