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