The Guardian has announced that ACS:Law the firm at the centre of a controversy about its tactics on file-sharing cases has been forced to close it’s doors. I have already blogged about the professional ethics issues likely to be involved here. I doubt this will be the end of it, the ethical investigation into the firm’s tactics should and probably will continue as the individual lawyers bear professional responsibility for their actions. The story raises a series of interesting dilemmas. It could be argued that the firm, if overly zealous in its pursuit of claims, has reached beyond defending its client’s best interests and breached its broader obligation to promote the public interest in the administration of justice. Whether it was the ethicality of the firm’s tactics which produced the campaign against that firm, or the natural alliance between the firm’s targets and those keen and able to use cyber tactics to damage the firm and their client is unknown. Very likely it is a bit of both.
Unsurprisingly, and to a degree understandably, professional regulators and the courts have not been swift to react to the claims made against the firm. I wonder if that would have made a difference. Swift investigation and, if appropriate, punishment may have satisfied the complainants and averted a disaster for the firm but it is difficult to conceive of that happening under current systems. Indeed, it is fair to say that in this case the judge at first instance has acted swiftly and with a careful eye on potential wrongdoing. Nevertheless, risk-based regulation might demand quicker responses to emerging problems of this sort. Similarly, I wonder if the firm’s tactics had been more clearly within the spirit and wording of the rules they would have found themselves in this position. In any event, the firm ultimately appeared to expose itself, and its client, to a risky (and possibly unethical) strategy which can now be seen to have backfired spectacularly. They damaged their professional mandate with (a section of) the public by behaving in a way perceived as unethical. Morally, any lesson is diluted by the disgraceful threats reported against the firm and the unjustified criminal attacks on its security system, but firms acting for controversial clients, particularly when they are acting against groups or individuals with popular appeal will need to think carefully about their approach. Zeal for one’s client has limits, not only in professional rules, but in terms of being sensitive to stakeholder opinion. There is a risk that if firms are overly sensitive to sections of public opinion they may be unable to act in the client’s best interests, but the problem is more subtle than that. The profession’s reputation for promoting the administration of justice does not simply derive from a fearless zeal for their clients. They also have to show fairness and probity in their dealings with opponents. The problem is that we do not yet know whether ACS:Law did or did not behave appropriately. Instead, the controversy – not the regulators – put them out of business. It was protest not professionalism what won it, and some of that protest was very unsavoury, but higher standards of professionalism might have prevented it.