ACS: Law –professional ethics in the internet age?

The idea that lawyers should, without fear or favour, champion their clients interests is one of the most conventional and controversial elements of a lawyer’s code of ethics.  The so-called standard conception of legal ethics suggests that lawyers may (or must) do all that they can for their client unless it is (clearly) forbidden by law or professional rules. There is a weak and a strong version (the stronger version includes the words in brackets).

The code of conduct for solicitors is not as strong as this. A lawyer’s duty to act in the best interest of each client is one of the core duties alongside duties to:

  • uphold the rule of law and the proper administration of justice;
  • act with integrity;
  • not allow your independence to be compromised;
  • provide a good standard of service to your clients;
  • and a prohibition on behaving in a way that is likely to diminish the trust the public places in you or the legal profession.

In a nod towards the standard conception, the guidance speaks of “making the client’s business your first concern.” But also this:

“Where two or more core duties come into conflict, the factor determining precedence must be the public interest, and especially the public interest in the administration of justice. Compliance with the core duties, as with all the rules, is subject to any overriding legal obligations.”

The question is: how does one determine the public interest? A lawyer minded to fearlessly promote their client’s interests is likely to argue that the public interest demands fearless defence of the client’s interest taming all steps which are not prohibited by law. Others may take a more nuanced approach.

The Guardian reports on an interesting case in point in relation to ACS: Law. The key allegations made against the firm appear to be in this paragraph:

The methods used by ACS:Law for pursuing alleged file sharers have been criticised by consumer watchdogs and industry bodies including the British Phonographic Industry. Last month the firm was referred to a disciplinary tribunal after a long-running probe by the Solicitors Regulation Authority into its tactics in the pursuit of alleged file sharers. The company has been criticised for sending out thousands of letters to people it suspects of downloading illegal content, demanding payment of a fine to settle the case. Many who received the letters, which seem to have been based on the internet “IP address” – rather than the physical address – of the recipient have protested that they are innocent, and though hundreds of people are believed to have paid the fines claimed, the Guardian has not found any confirmed reports of any cases proceeding to trial, where ACS:Law’s methods and evidence would have been tested.

It appears from the report that the firm is already being pursued through the Solicitors’ Disciplinary Proceedings. I am assuming, from the reference to “fines”, that this is on the basis that they are alleged to have made claims against consumers which they had no basis in law for making.

Because the case related to file sharing and encompasses the interests of large numbers of web-savvy members of the public, the firm has been subject to action of a quiet different kind leading, it appears to attacks on their website and the exposure of confidential information.

Whatever the rights and wrongs of the action (and it seems likely that wholly innocent clients will have had confidentiality breached, alongside the inevitable damage to the firm’s business) it may be that this case is a salutary reminder of the importance of tempering professional zeal for one’s clients with a need for broader values of fairness in the administration of justice.

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