In this talk* I am going to to focus on a fundamental and, I think, increasingly important, conflict of interest; a conflict at the heart of several current controversies surrounding public and legal life. That is the conflict between the public interest and the client’s interest.
I am going to argue that the problems we are seeing come out of our failure to examine fully two forces.
One ancient, the other more modern.
The ancient idea is that of the zealous advocate. That idea was designed for courts but is now most often applied for the benefit of boardrooms. And the second is the modern force of increasingly visible, commercialisation of law. Together, they may sometimes pose significant risks to the legitimacy of the professions and the fair working of our justice system.
At the heart of a debate about conflicts is the role of the lawyer. The classic view is that the Lawyer is a zealous advocate for their client’s interests. He weaves an armour of words, stronger than steel, for his clients. He defends their rights against the oppression of the powerful, particularly the power of the State.
But I also want to remind us that the same zeal, inspite – or perhaps because of – its noble origins can lead us to a more South Park view of the lawyer. Professor John Yoo derided for his authorship of the Torture Memos in George W Bush’s Whitehouse.
Here zealous advocates are not noble defenders of the oppressed but take advantage of law’s ambiguity. They provide legal cover for ignoble, even illegal acts and they do it for the powerful. Here, it does not matter whether an act is right, or lawful; it only matters whether a lawyer has advised their client that something might be lawful. That provides the client with legal cover.
In those circumstances, the client speaks loudly and clearly, I was advised by my lawyer I could do it. And importantly, both lawyer and client are, if we are not careful, absolved of responsibility. The lawyer is just zealous representing their client. The client is behaving in accordance with advice.
To those of you not thinking of Lord Goldsmith and wondering if this really is a problem, let me show you some evidence from what the public think about lawyers. Populus did a poll for Which recently which showed what the public thought of various professions and occupations.
Lawyers did not shine.
69% of the public thought lawyers were properly trained. A reasonable if not stellar result when compared against other professions. Only 21% thought they acted in the best interests of the client. And 20% thought lawyers acted ethically. Similarly, whilst 35% trusted lawyers to act in their best interests, 30% did not.
We can, temporarily at least, comfort ourselves that this is better than bankers and journalists (and builders, politicians and estate agents).
We should also step back a little from these results and treat them with some caution by asking why the results are as they are.
I suspect a lot of this stems from public attitudes to the criminal justice system and lawyer’s roles within that system in particular.
Take the example of Levi Bellfield, Millie Dowler’s killer, and his counsel, Mr Jeffrey Samuels QC. Mr Samuels took a good deal of criticism for his cross-examining of Mille Dowler’s father. A lot of the criticism can be deflected by a better understanding of the defence advocate’s role.
[A]n advocate, in the discharge of his duty, knows but one person in the world, and that person is his client. To save the client by all means and expedients, and at all hazards and costs to other persons, and among them, himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.
Lord Brougham, 1820
The classic quote comes from Henry Brougham as he defended Queen Caroline whilst the King and Parliament sought to strip her of the Crown.
Those ideas continue to influence the wording of the Bar’s Code of Conduct to this day. It contains a strongly, indeed, eloquently worded, defence of the client’s interests. The Barrister:
must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (including any colleague, professional client or other intermediary…)
It is also important to note that zeal for the client is subject to limits, in prohibitions within the Code on engaging in conduct that is dishonest or otherwise discreditable or prejudicial to the administration of justice; or likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. These limits are less vigorously expressed perhaps, but there all the same. Nor, of course, can an advocate knowingly or recklessly mislead the court
There are some problems with the way the Code is expressed perhaps.
Whilst public administration of justice and the like is paramount, it is also expressed in the negative; do not transgress and you can remain fearless, but that rather begs the question – what is a transgression? When is zeal for the client too fearless?
Now for any barristers becoming anxious at an impending attack, they can relax, my main interest today is in what happens outside of courtrooms.
We have seen a number of high profile problems: Hackgate, Nightjack, Standard Chartered Bank and Hillsborough. These problems draw attention to three things, I think.
- One is that the professional rules generally do not address in detail the ethical problems of lawyers outside of the courtroom, particularly when around the Boardroom.
- The second is that elite firms and in-house counsel have been heavily involved, showing ethics is not solely a problem for one man bands in backstreet offices.
- The third is that at the heart of these concerns is the possibility that the ethic of client loyalty, of client zeal, has become too strong.
Lord Hunt in his report on professional regulation gave a clear statement of the culture he expected to see in many firms when he said, ‘client first was bred into me’. Well it may be time to consider how and in what circumstances client first has been in-bred a little too much.
Why might zeal have become too strong?
The profession has always been a competitive place. But now the scaling of those heights is more visible and it is more explicitly measured. And it is measured principally in terms of money.
Profit per equity partner, revenue, size are what counts externally in league tables. Professional status is increasingly measured internally and externally in terms of money. Internally, hours recorded and bills recovered are indirectly or directly linked to promotion and pay.
These are coupled to hourly rates that drive lawyers to do as much as possible for clients. The economics drive zeal, where a client is willing to pay. There is also an increasingly vigorous battle of reputation which involves who can be seen as the most client facing or business focused.
Often the latter is a good thing. Lawyers have sometimes neglected client interests in the past and lacked commercial insight. But business focus can also lead to corporate clients looking for things like “the most creative approach to legal risk”, which can be a much more double-edged sword.
Let me try and show you what I mean by way of some examples. These are simplified stories culled from recent events. Because they are simplified and also we have often not heard both sides of these stories, I am not going to name the firms or lawyers involved, although I have discussed many of them elsewhere in my blog, but suffice it to say they do not derive from the backstreet firms thought to be the main generators of ethical problems for the legal profession. They derive from the trusted elites.
The first example
You act for a large corporation.
A client asks you to investigate wrongdoing of kind X. Your investigation reveals wrongdoing of a slightly different kind, Y. You speak to your client contact who says that is not the kind of wrong doing you are interested in.
You write a letter saying there is no wrongdoing of kind X. You do not mention Y. Your client later says you have investigated wrongdoing and exonerated them. What do you do? Should you have dealt with the matter differently?
Example 2. Your client appears before a Parliamentary Inquiry. That client denies wrongdoing which you know they are guilty of. They appear to perjure themselves. If it was a court and you were representing them, you should clearly cease to act. What should you do?
Example 3. You act for a large corporation who wants to engage in off balance sheet accounting. It may or may not be lawful under accounting rules. They ask you to give an Opinion which will help them make the case it is lawful. You can give a helpful opinion that is competent and correct. It raises a suspicion that it may lead to accounting fraud, but you do not know it will.
Should you give the opinion?
Example 4. Your client is wants to hurry through transactions which may be in breach of US money laundering and regulations.
You advise that these transactions probably are in breach of the regulations. Should you also advise the client on how to handle the transactions so that the regulator does not scrutinise them?
Should you advise them how to structure them so competitor banks may handle those transactions and so be more likely to take the regulatory risk?
What do we learn from these examples?
They are simplifications. The case for the prosecution, if you like but I think we learn three generalizable things.
Not uncommonly lawyers have gatekeeper functions. Their advice is used to justify actions to others (we investigated, the transaction is of a permitted kind). Lawyers ethical duties to people other than the client in these situations is uncertain.
Even where they do not have such functions, lawyers may act to subvert the purpose of law by arguing something is legal which is probably, even almost definitely, not. Any lawyerly nuance is lost once the opinion is given, or the accounts are filed, or torture authorised.
There are also sometimes (often?) problems with who the client is or what is in their interests. So in the Hillsborough case, when police statements were amended to remove evidence of management failure – was the solicitor acting in the best interests of their client South Yorkshire Police, or their client’s management – the Senior Police Officers who, it so happens, were telling them what to do? In the short term the answer is probably both. In the longer term, the conflict is clearer.
In all of these situations, there is an argument that the lawyers were simply zealously representing their client’s interest. There is an argument that that is their job, and that they should not be criticised for doing so.
What they are doing is taking any potential ambiguity in the law, any opportunity in the process, and turning it to their client’s advantage. The ethical rules may fail to deal with the problem, or are not enforced, and the predominant culture of ‘client first’ holds sway.
That is why I say we should not comfort ourselves with the idea that these are actions taken by bad men. It may be that they are taking the actions that economic, professional and cultural forces dictate. It may be that what we are seeing in these cases is normal.
I would end by urging you to watch Lord Justice Leveson’s cross examination of Alistair Brett, former in-house lawyer for the Times (http://www.levesoninquiry.org.uk/hearing/2012-03-15pm/). What for me is most apparent from this encounter is how normal is the pressure to protect the client with all resources at one’s disposal. How easily we can see a lawyer in a difficult situation make decisions which are informed by the client’s interest not the public interest in the administration of justice.
Arguments can be marshalled for clients and are rarely subject to the scrutiny they faced there. It shows how easy it can be for the client first attitude to morph into something much more dangerous. That this approach is the wrong approach is suggested by one crucial piece of guidance in the Solicitors Code of Conduct.
Where two or more Principles come into conflict the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice.
These conflicts are real and we need to pay attention to them.
*This is a talk given to mark the launch of the UCL Journal of Law and Jurisprudence