The business pages tell us corporate leaders, perhaps cowed by reactions to executive pay and the more general desire to rebuild the legitimacy of capitalism, are increasingly interested in ethics. An interesting question is whether this change, if it is real, will permeate into the way lawyers advise their clients.
The conventional view is that commercial lawyers act zealously in their clients’ interests no matter what the impact is on third parties. This ‘standard conception’ is that they can, and should take any step that advances their clients interest unless it is plainly unlawful or clearly in breach of professional conduct rules. The default position of this standard conception is that if the law in an area is grey, lawyers and clients can exploit uncertainty in their own favour.
To be sure, there are risks in the ‘if its grey, we can play’ approach. The travails of some of News International’s former lawyers may be a timely example. Hackgate aside, though, there are some interesting signs that the ‘client zeal’ model may come under pressure. One is an apparent change in the approach of (some) regulators. The FSAs fining of hedge fund boss David Einhorn for insider dealing is being taken as a signal that the FSA is toughening up its approach. Einhorn, told by a corporate broker acting for Punch Taverns that the company was preparing a significant equity fundraising and knowing this would depress the share price, gave instructions to sell all of his hedge fund’s holding in Punch. They refused to accept Einhorn (who still protests his innocence) insistence that he had requested of the broker that he not be given confidential information (in the lingo, he had not been “wall-crossed” – which would make the trade an insider trade). In essence the FSA is saying, Einhorn should have relied on his own judgment not reassurances he sought from others.
Today in the FT (£), Hector Sants (leading on the break up of the FSA into prudential and conduct regulation) says this:
“We would like firms not to just take the narrow perspective of what can they get away with within the rules and how long can their lawyers delay, but take the broad perspective. When the right way forward is clear, they should get on with it.”
Strong regulator action will be required to overcome a lawyer (or client’s tendency) to take a compliance/avoidance view of their obligations (what is the minimum I have to do to comply or how can I avoid regulations in place rather than comply) and the tactical use of delay. It would be interesting, indeed, if Einhorn had taken legal advice on whether the trade was lawful and waived a supportive opinion under the nose of the FSA when they came to enforcement action against him. There will be some way to go if the FSA are to encourage “proactive” and “judgment-led” regulation but it if they are even half-way successful they may have significant impact on how lawyers advise their clients. Punish enough clients who lawyer up and employ defensive, zealous tactics and the tactics become discredited. It would become clear, then, that regulators other than the professions’ regulators have a key role in shaping the ethics of the legal profession. They will, likely, have to succeed in persuading the courts that in taking a proactive and judgment based approach the rights of defendants are not being fatally weakened.
Relatedly, there is a very interesting article from Whelan and Ziv on SSRN which suggests some corporate clients are beginning to seek to regulate their lawyers ethics. Some of this covers fairly well known territory like increasing emphasis on diversity policies and broadening the range of competitor businesses who their outside law firms are conflicted out from acting for (a not uncontroversial approach). There is also a very interesting focus by some Corporates (Walmart and Bank of America are mentioned) which include a, “prohibition on using obstructive and coercive tactics in litigation, the duty to protect the integrity of the justice system, to consider and favor negotiation and ADR over contentious adversarial strategies, and in general to act “ethically”.” There are, of course, a range of questions about this approach: how extensive is it? Does it influence their outside lawyers’ behaviour? What happens when business interests and ethical interests are in opposition? It is too early to say. In large part the ethical obligations are framed within, and seen by the drafters of these requirements, as being supportive of the business aims of the clients. Put simply, more work is needed to assess whether this is window dressing or a substantive change but it does signal that the old paradigms of corporate legal ethics may be changing. One very concrete example that Whelan and Ziv take from Walmart, is one which would have had a very interesting impact in the context News International’s problems:
“If Outside Counsel believes that a Wal-Mart Associate (including any Legal Department personnel) has or will engage in illegal or unethical activity as a representative or agent of the Company, the most senior Outside Counsel responsible for the matter through which such activity is discovered must immediately and confidentially contact the RLDA (or a Wal-Mart Associate General Counsel or General Counsel, as appropriate). No Wal-Mart Associate has authority to instruct Outside Counsel to act in an unethical manner in connection with any Wal-Mart matter”. In other words, OC are being used as a mechanism to monitor improper behavior of the client’s agents, turning them into “lawyers – gate keepers”.
I would be very interested to hear whether such clauses are being written into instructions from General Counsel in the UK. I would also be very interested to hear whether such policies have any impact.