What motivates the zealous lawyer?

Acting in the best interest of the client is a key professional principle.  It is also a principle that is sometimes in tension with other principles: the obligation to protect the rule of law and the administration of justice, and acting with integrity, in particular.  This tension leaves open the question, how much emphasis should be given to the client’s interest? How zealous should lawyers be for their client?  Whilst both solicitor and Bar codes emphasise the preeminence of the rule of law and administration of justice where there is a conflict between principles, I often hear lawyers state, incorrectly, that the client’s interest are paramount or – in the words of Lord Hunt – that ‘client first was bred into me’.  The Bar’s own emphasis on fearlessness adds its own gloss.  The idea of the zealous advocate, and in turn, the zealous lawyer, has a strong historical and philosophical pedigree.

One of the assumptions of zeal is that it is an act of selflessness on the part of the lawyers. That it is an indicator that lawyers put their clients first: zeal is motivated by benevolence to the client; they are their ‘friend’. Critics suggest this is a convenient fiction: that zeal reflects an alignment  between lawyers and clients. Where lawyers zealously take an action, not clearly forbidden by law or professional codes, but which is nevertheless questionable – think, say, of creating aggressive tax avoidance schemes or a questionable but arguable justification for war: the idea that the lawyer is professional bound to zealously exploit (even create) questionable arguments for their clients is both commercially convenient and relieves them of moral responsibility for their own actions. Under this reading, zeal is founded on a false prospectus.

There is an increasingly rich psychological literature on this issue.  In particular, it shows that lawyers (and other professionals) are naturally prone to identify with clients and shade their judgments about (say) reasonableness too much towards the client’s self -interest. I have had an article published today, with Rachel Cahill-O’Callaghan (Cardiff University) which looks at this.  It suggests that those lawyers that are more zealous in their outlook, i.e. more inclined to advocate a risky or aggressive strategy, are more motivated by self-interest than are less zealous lawyers.  Those with stronger risk-appetites appear less motivated by benevolence for the client.  If zeal is self-interested, the risk that lawyers miscalculate the client’s interests is magnified.  For me the results suggest the need to restrain zeal and to think carefully and objectively about the client’s interests and the lawyer’s broader obligations. Wise heads may see a better balance between a client’s medium and long term aims and these broader obligations, and reject short term, risky opportunism – even where it may help them earn more money or gain that promotion if it comes off.

The article is available here, although it is pay-walled for those who do not subscribe to Legal Ethics.

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Independence play – Chilcot on the legal process

This is a long post. You may want to make yourself a cup of tea if you are inclined to read it all.

Chapter 5 of the  Chilcot Report provides an important case study in the multitude of ways in which the independence of a lawyer might be compromised.  It is, of course, particularly pertinent to Government Legal Service Lawyers but I suspect it contains lessons for all lawyers.  Certainly, I will be asking my own students to study it.

At over 70,000 words, out of a report of 2.6 million, it is an incredibly detailed account of how Lord Goldsmith, as Attorney General, came to give the “green light” to military action against Iraq. Judging by the way the Report was reported yesterday it is a central plank of Chilcot’s finding. As he put in his statement:

the Inquiry has not expressed a view on whether military action was legal. That could, of course, only be resolved by a properly constituted and internationally recognised Court. We have, however, concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.

It is not clear that, had things been done differently, Britain’s participation in the Iraq War would have been avoided altogether. However, it is not fanciful to suggest that our role might have been significantly curtailed had Lord Goldsmith not, in his words, “given the green light” that military action was lawful.  This may not have helped the people of Iraq, but it may have led to fewer British deaths, and a less tarnished reputation in the World for the United Kingdom.

In giving that green light, Lord Goldsmith was aware, in formal terms, of the need to give, independent and impartial advice. It is well known that, in giving advice, Goldsmith changed his mind about the legality of military action without a second UN resolution at the point of critical decision.  I do not want to allege that such a change of heart was not genuine.  What I want to do is examine the ways that the situation, the management of the situation by others, and the Attorney- General’s approach to the situation, all contributed to a process littered with significant flaws.  In discussing what those significant flaws might be, I do so based only on my reading of Section 5 of the Chilcot Report.

The Attorney General did not know who his client was?

The starting point for many lawyers, when thinking about their professional obligations, is what is in the best interest of their client? To think in such terms, one has to be clear who the client is.  The way Chilcot presents it, Lord Goldsmith got it wrong:

Lord Goldsmith told the Inquiry that he viewed Mr Blair as “ultimately” the client for his advice.


Lord Turnbull [the Cabinet Secretary] told the Inquiry that he, Admiral Sir Michael Boyce, Chief of the Defence Staff (CDS), the diplomatic service and others were all clients for Lord Goldsmith’s advice. The characterisation of Mr Blair as the client was not “a very good description of the importance of this advice”.

Knowing who the client is critically effects how one calculates the interests at stake and who one communicates with.  There is particular criticism from Chilcot of Lord Goldsmith’s failures to communicate with Cabinet ministers for whom is advice was particularly pertinent.  This is in contrast with Lord Goldsmith’s sometime frustration, if I read the report correctly, with his inability to speak directly to the Prime Minister as often as he would have liked.

Not knowing who one’s client is, of course, particularly significant at times of conflict within the client.  The UK Cabinet was not of one mind on intervention in Iraq. An Attorney General keen to be both independent minded and seen as independent minded would need to hold all of the key constituencies in mind and be communicating consistently with that understanding.

The timing of the advice was deliberately delayed

One of the curiosities of the situation was that Lord Goldsmith was told he would be instructed to provide advice but he was then told he was not to give his advice immediately.  One explanation for this approach was it would allow all the facts of the situation on the ground to become clearer. Another explanation is that it ensures that the advice is delivered at a time when it is less likely to influence the client’s overall strategy. Another, is that it leaves the lawyer to provide their advice at a time of maximum pressure.   And a fourth is that the lawyer’s role is to provide a rubber stamp, not to provide genuine advice.

Tony Blair explained the delaying of the advice in these terms:

 “I think it was more that we knew obviously when we came to the point of decision we were going to need formal advice.

A critical question is whether Goldsmith was right to accede to the instruction to delay his advice?  His legal counsellor advised him to think about giving his advice in spite of the injunction to hold off.  In terms of his professional obligations: he is professionally responsible for the manner in which his advice is given, but can the client determine the timing of his instructions? Clients cannot instruct on tactics in litigation, by way of comparison. To accede to the request was to lead to a significant weakening, structurally, if not in his mind, of his independence. He opened himself up to significant pressures. There is a strong argument to say he should not have done so.  I’ll leave the last word on this to Elizabeth Wilmshurst, a Deputy FCO Legal Adviser, who resigned at the culmination of this saga because of her concerns about the AG’s eventual advice:

“…For the Attorney to have advised that the conflict would have been unlawful without a second resolution would have been very difficult at that stage [the eve of War] without handing Saddam Hussein a massive public relations advantage. It was extraordinary, frankly, to leave the request to him so late in the day.”

Coping with the risk your advice will be misrepresented

Lord Goldsmith was clearly sensitive to the problem that his view on the legality of military intervention in Iraq would be, and probably was being, misrepresented. That misrepresentation was a risk internally (within government itself), bilaterally (discussion with the US in particular) and publicly (in statements to Parliament and the press).  It’s a risk all lawyers are familiar with.

As an example, Lord Goldsmith told the Inquiry:

“There is … I see this quite a lot in government … also the problem that sometimes the qualifications to what you have said don’t seem to be heard as clearly as you intended them to be. I have heard the expression about the ‘yes, but’ and the ‘but’ is forgotten, in another context … [S]ometimes, therefore, you have to shout the ‘but’ rather harder than you would normally, to make sure it is not forgotten.”

It was clear that Lord Goldsmith was right to be worried.  Having already told the Foreign Secretary, Jack Straw, of his doubts that war would be legal without a second resolution, “Mr Straw told Cabinet on 14 November that, while the Security Council would need to be reconvened to discuss any breach…  the key aspect of resolution 1441 was that military action could be taken without a further resolution.” At a number of points in the report, Goldsmith becomes aware of reports that his legal advice will say what Straw says, when Goldsmith’s then view is that it will say something less helpful to the government line.

At times, Goldsmith took steps to try and counter the problem. He wrote three times to the Prime Minister to express his provisional views on the question of legality.

It is possible (although Chilcot does not speculate on this) that this is not selective deafness, but a more concerted attempt to raise expectations across the civil service and political constituencies that the advice will say what the government wants it to say. In this way, informal pressure might be applied to Goldsmith to come up with the right answer.  Similar pressure was applied, wittingly or unwittingly, by encouraging or inviting Goldsmith to speak with protagonists seeking justification for military action. This included, at Goldsmith’s request, the UK’s Ambassador to the UN, and a large group of US officials and lawyers keen to impress upon him their view that military action would be lawful without a second resolution.  There were reasons for wanting to speak to some of these individuals, in particular, their ability to explain what had led to the most recent UN resolution. As I understand it, that was of dubious benefit evidentially, but it could help Goldsmith see the arguments as to how to construct the words of the resolution. The more general point, though is that almost all the direct, person to person influence on his thinking (at least as portrayed by Chilcot, and with the exception of quite a robust line from the FCO) was coming from one side of the argument.

What is the lawyer’s role when giving advice?

When a lawyer is giving an opinion which they know is a necessary step in taking an action they are acting as a gatekeeper for legality. That they are a gatekeeper is underlined in circumstances where that opinion is unlikely to be tested by, for example, litigation.  In this sense, the lawyer acts a bit like a judge, but a judge with complications.  Ms Adams (the AG’s legal counsellor) set out for the Attorney General how important how he see’s his role was to how he should advise:

“What advice you give … may therefore depend on the view you take as to your role in advising on use of force issues. For example, you might give a different answer to the question: what is the better interpretation of resolution 1441? than to the question: can it reasonably be argued that resolution 1441 is capable of authorising the use of force without a further Council decision?

“You have previously indicated that you are not entirely comfortable with advising that ‘there is a respectable argument’ that the use of force is lawful, given your quasi-judicial role in this area. Previous Law Officers have of course advised in these terms …

“For my own part, I think that the first view is the better interpretation, but that the arguments in favour of the second view are probably as strong as the legal case for relying on the revival argument in December 1998 when the UK participated in Operation Desert Fox.”

Goldsmith’s initial approach is to advise, in draft initially, in both ways: he says the better interpretation of international law is that a second resolution is needed, but that there is a reasonable argument (one that could be argued in court with some prospects of success). The reasonable argument test might, I understand, include arguments which are weak but arguable.

It’s not a ‘have your cake and eat it’ argument, it is a: here’s the answer I think it is, but I can’t rule out the other answer argument. Or it’s, a) here is the low risk option legally, and b) here is the high(er) risk option.  Or, a) here is the answer I would give if I were acting judicially (or perhaps more pertinently, totally independently) and b) here is the answer that I could give a paying client if I were their advocate and they really wanted me to fight it.  Crucially for Goldsmith, he does not clarify in his own mind whether he should be giving the quasi-judicial or advocate’s answer until late in the day.

Whether the Attorney-General applied the right test or did give an opinion based on a weak but arguable claim is something which others may have explored, but this case provides ample basis for a fresh look, by all lawyers, at the tests they apply when giving such gate-keeping opinions.  Their obligations to promote the rule of law and administration of justice require them, in my view, to temper any inclination to tell the client what they want to hear with more genuine independence and that means thinking carefully about the process and outcome of the formulation of their advice.

There is a further limb to this bit of the analysis.  Jack Straw was also being advised by the senior FCO lawyer (Mr Wood) that military action without a UN decision was illegal.  Jack Straw was not impressed:

Mr Straw wrote to Mr Wood the following day: “I note your advice, but I do not accept it.”

Quoting his experiences as Home Secretary, Mr Straw stated that, “even on apparently open and shut issues”, he had been advised: “there could be a different view, honestly and reasonably held. And so it turned out to be time and again.”

Mr Straw concluded:

“I am as committed as anyone to international law and its obligations, but it is an uncertain field. There is no international court for resolving such questions in the manner of a domestic court. Moreover, in this case, the issue is an arguable one … I hope (for political reasons) we can get a second resolution. But there is a strong case to be made that UNSCR 678, and everything which has happened since (assuming Iraq continues not to comply), provides a sufficient basis in international law to justify military action.”

Mr Straw sent copies of his letter to Lord Goldsmith and to Sir David Manning as well as to senior officials in the FCO.

…Lord Goldsmith wrote back:

“It is important for the Government that its lawyers give advice which they honestly consider to be correct … they should give the advice they believe in, not the advice which they think others want to hear. To do otherwise would undermine their function … in giving independent objective and impartial advice. This is not to say … that lawyers should not be positive and constructive in helping the Government achieve its policy objectives through lawful means and be open-minded in considering other points of view.

“But if a Government legal adviser genuinely believes that a course of action would be unlawful, then it is his or her right and duty to say so. I support this right regardless of whether I agree with the substance of the advice which has been given. Where a Minister challenges the legal advice he or she has received, there are established mechanisms to deal with this. The principal such mechanism is to seek an opinion from the Law Officers.”

In this way, the Attorney General is acknowledging his role, in the absence of litigation, as the final arbiter of questions of legality. Is he underlining the quasi-judicial nature of his task?  Chilcot goes on to note, Sir Franklin Berman, Sir Michael Wood’s predecessor as the FCO Legal Adviser, wrote:

“I have to confess (once again) to some astonishment at seeing a former Foreign Secretary implying in recent evidence to the Inquiry that he was not bound by legal advice given to him at the highest level, but was entitled to weigh it off against other legal views as the basis for policy formulation. If Ministers begin to think that they can shop around until they discover the most convenient legal view, without regard to its authority, that is a recipe for chaos.”

Mr Straw also wrote:

“Once the Attorney General had uttered on this question, that would have been the end of the matter; as on any other similar legal question. It would be wholly improper of any Minister to challenge, or not accept, such an Attorney General decision, whatever it was. But we were not at that stage.”

Interestingly though, in spite of writing to rebuke Straw, Lord Goldsmith had not sent him his draft advice, which we come on to discuss now.

Drafty drafts through which influence blows

Sophisticated clients seeking ‘independent’ opinions, and lawyers instructed by clients to provide such opinions take varying views on the extent to which clients should be able to comment on draft advice. There can be a need to establish that errors are not made, and there are other benefits, but the risks are also plain.  Lord Goldsmith opened himself up to influence when he provided his draft advice to the Prime Minister, for discussion with the Prime Minister, and not – on the evidence – even to the Foreign Secretary and Defence Secretary. Here the problem with not knowing the client becomes particularly acute. The winds of influence on this draft advice were all blowing in one direction, from the Prime Minister’s Office.

The Uni-directional influence can be sensed also in the way Goldsmith had the draft advice sent to Sir Jeremy Greenstock (UK representative at the UN). His office wrote this:

“The Attorney would welcome your comments on the view he has reached.

“In particular, he would be interested to know if you feel that there are any significant arguments which he has overlooked which would point to a different conclusion. The note has been passed by the Attorney to No.10, but has not been circulated more widely. I have been asked to stress that the note should not be copied further.”

Crucial in the changing of Goldsmith’s mind about his draft advice was a meeting he had with senior US officials and lawyers, including those who negotiated the first UN resolution.  Goldsmith was much impressed by the sincerity and consistency with which they all argued that their preferred meaning of the UN resolution was understood by the key members of the Security Council (the French and the Russians – understood, it was said, that they had ‘lost’ and that the resolution effectively permitted military action without a further resolution in certain circumstances).  He firmed up his draft advice and gave an opinion in writing that indicated a second resolution was preferable but that he was “prepared to accept” that there was a reasonable argument that proceeding without a second resolution was possible.  Again the issue of who the client was becomes important. As Chilcot notes:

Mr Straw, Mr Hoon, Dr John Reid, Minister without Portfolio, and the Chiefs of Staff had all seen Lord Goldsmith’s advice of 7 March before the No.10 meeting on 11 March, but it is not clear how and when it reached them.

Other Ministers whose responsibilities were directly engaged, including Mr Gordon Brown, the Chancellor of the Exchequer, and Ms Short, the International Development Secretary, and their senior officials, did not see the advice.

It was Lord Goldsmith’s professional obligation to ensure that the client was properly communicated to. As he thought the client was de facto the Prime Minister he would have thought he had discharged that obligation.

Dealing with powerful bosses

The AG had a meeting with the Prime Minister before a meeting with Cabinet was due to take place to receive his advice.  Alistair Campbell’s diaries discuss it:

“[Peter Goldsmith]… had done a long legal opinion and said he did not want TB to present it too positively. He wanted to make it clear he felt there was a reasonable case for war under 1441. There was also a case to be made the other way and a lot would depend on what actually happened. TB also made clear that he did not particularly want Goldsmith to launch a detailed discussion at Cabinet, though it would have to happen at some time, and Ministers would want to cross-examine. With the mood as it was, and with Robin [Cook] and Clare [Short] operating as they were, he knew that if there was any nuance at all, they would be straight out saying the advice was that it was not legal, that the AG was casting doubt on the legal basis for war. Peter Goldsmith was clear that though a lot depended on what happened, he was casting doubt in some circumstances and if Cabinet had to approve the policy of going to war, he had to be able to put the reality to them. Sally [Morgan] said it was for TB to speak to Cabinet, and act on the AG’s advice. He would simply say the advice said there was a reasonable case. The detailed discussion would follow.

This description outlines the way in which Lord Goldsmith is being managed out of the communications with Cabinet and, it seems reasonable to surmise, Goldsmith could see that and was attempting to avoid it. As he changes his position at the end, however, he appears to become more pliant.

The pressure of the situation, how risk and mandate change

Once the military and civil service indicated they needed a clear view as to the legality of proceeding, Lord Goldsmith changed his mind about his preferred view of legality. In the background, negotiations for a second resolution were not going well, although it is not clear from Chilcot that Goldsmith knew they were going to fail.

Lord Goldsmith informed his officials on 13 March that, after further reflection, he had concluded earlier that week that on balance the “better view” was that there was a legal basis for the use of force without a further resolution.

Lord Goldsmith reached this view after he had been asked by both Admiral Boyce and Ms Juliet Wheldon, the Treasury Solicitor, to give a clear-cut answer on whether the “reasonable case” was lawful rather than unlawful.

This view was the basis on which military action was taken.

Mr Martin Hemming had written to Mr Brummell on 12 March stating:

“It is clear that legal controversy will undoubtedly surround the announcement of any decision by the Government to proceed to military action in the absence of the adoption of a further resolution by the UN Security Council. The CDS is naturally concerned to be assured that his order to commit UK Armed Forces to the conflict in such circumstances would be a lawful order by him. I have informed the CDS that if the Attorney General has advised that he is satisfied that the proposed military action by the UK would be in accordance with national and international law, he [CDS] can properly give his order committing UK forces.

…In a minute approved by Lord Goldsmith, Mr Brummell wrote that Lord Goldsmith had told him that:

“… he had been giving further careful consideration to his view of the legal basis for the use of force against Iraq … It was clear … that there was a sound basis for the revival argument in principle …

“The question was whether the conditions for the operation of the revival doctrine applied in this case. The Attorney confirmed that, after further reflection, he had come to the clear view that on balance the better view was that the conditions for the operation of the revival argument were met in this case, i.e. there was a lawful basis for the use of force without a further resolution beyond resolution 1441.”

…Lord Goldsmith told the Inquiry that he had reached his “better view” after he had received a letter from the Ministry of Defence stating that Adm Boyce needed “a yes or no answer” on whether military action would be lawful and, as requested by Sir Andrew Turnbull, a visit from Ms Wheldon asking the same question on behalf of the Civil Service.

Here we see Lord Goldsmith’s position is one of acute difficulty. The Civil Service need to know, they say, that war is legal if they are to lawfully prosecute that war. The only person who can give them that comfort is the Attorney General. He experiences a very human desire to protect them. And his view of the law changes at the same time.  The situation has brought a terrible pressure to bear, and their is no escaping it’s influence.

Lord Goldsmith told the Inquiry that he:

“… very quickly saw that actually this wasn’t satisfactory from their point of view. They deserved more … than my saying there was a reasonable case.

“So, therefore it was important for me to come down clearly on one side of the argument or the other, which is what I proceeded to do.

“… until the Civil Service and the … Services said they wanted this clear view, I was working … I take full responsibility for this, but it was with the approval of my office on the basis that saying there was a reasonable case was a green light. It was sufficient for the Government, and if the Cabinet and, as it turns out, the House of Commons, took the view that it was the right thing to do, then we had done enough to explain what the legal basis was and to justify it.

“But when they came with their request, I then saw that actually that wasn’t fair on them.”

The reluctance to say, “No”

A critical issue is whether this desire for a clear yes or no, and the implications on individual members of the civil service and armed forces, is a relevant factor which should influence his legal opinion. In one sense, the more substantial meaningful sense, the quality of the protection provided by his opinion, the quality of the rule of law, depends upon the Attorney General getting the answer right and putting the consequences of his decision to one side.  He could have said it is the better view that proceeding without a resolution is not legal and that is his No. Another interpretation is that he is being asked to provide comfort, he is the lawyer as an insurance policy. If he says military action is legal then that insures the civil service and the army against criticism (perhaps legal action) for carrying out unlawful orders.  This is why the question of what his mandate is- the specific question he is answering -is, and what his role is, is so important.  Is he an advocate for the view of his client or is he an independent adviser deciding something in a judge-like fashion: the gatekeeper? The problem is picked up by Chilcot in this way:

Asked how the case had suddenly become stronger [for sayng intervention was legal], Lord Goldsmith replied:

“It is the decision you make about it. You make a judgment. You say ‘I’m asked to advise whether there is a reasonable case’, and you examine all the evidence and you say, ‘Yes there is a reasonable case’. You don’t need to go any further, and in that respect, I can see with hindsight, that I was being overly cautious.

“Then somebody says to you, ‘Actually, I don’t want to know whether you say there is a reasonable case, I want to know whether or not you consider that it will be lawful.’

“Well, I regard that as a different question and you then have to answer it.”

At this point, the mandate has changed, the question has narrowed, and with it Goldsmith’s answer has narrowed.  There are plausible reasons for this, in particular, that previous AG’s had given advice based on the reasonable case test. However, having embarked on a more expansive approach to his role, consistent with his prior beliefs; shifting to that narrower approach weakens the independence of the process significantly. An interesting question is whether the way he has engaged in the process and shifted his mandate is sufficiently problematic to mean he should at this point have stepped aside. The political impact of that would have been seismic, and one can well imagine why he would not have done it, but even so – it merits consideration.  Another approach would have been for him to engage fresh eyes and wise counsel – was his view a proper one. There is no sign he did that, but he might have done.  Instead, his previous anxieties about succumbing to the narrow approach are placed to one side. Interestingly, also, at this point he switches more fully into advocacy mode:

Lord Goldsmith was reported to have said that “having decided to come down on one side (1441 is sufficient), he had also decided that in public he needed to explain his case as strongly and unambiguously as possible”.

Is that a fact? The adviser-client, fact-law distinctions that do not hold

We can see in the very human response of Lord Goldsmith to the predicament of the civil servants and the armed forces, that he is well aware of his own agency in deciding the legality of war.  When one talks of ethics with lawyers, an argument that is commonly made is that ethical dilemmas are for clients; a lawyer’s role is simpler. I advise, the lawyer says, and the client decides.  That simplification is rarely as true as it is appealing. A second problem that is raised by the final stages of Lord Goldsmith’s actions is what I am calling the fact-law dichotomy. Here the idea is that the lawyer takes the clients facts as given (unless clearly contradicted) . The lawyer does not adjudicate on the truth of the client’s instructions (the facts they tell the lawyer), they make the client’s case based on the facts they are told.

This idea derives from the adversarial trial, and even there it does not always hold up well, but in the context of a lawyer providing a legal opinion it can be positively dangerous. In a situation where a lawyer knows that his opinion is going to be held up as authorising a controversial act such as war, what obligations are there on lawyers to be sure their facts are good ones?  The position is, I would suggest, somewhat higher than under no obligation whatsoever; and somewhat less than being their sole responsibility.

In perhaps the most jaw-dropping passage of this section of the Chilcot report we learn how Goldsmith dealt with the very important fact of whether Iraq was in material breach. It will be recalled that part of Lord Goldsmith’s view that military action could be legal without a further resolution but that there needed to be significant, compelling evidence of material breach. In his opinion of March 7th he wrote the proposition that law would be lawful would:

“… only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-co-operation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence … is sufficiently compelling to justify the conclusion that Iraq has failed to take the final opportunity.”

Against such a test, it seems open to the Attorney General to ask for the evidence to be provided and for him to assess it or at least review it. It is, after all, an – no, the – critical step to be taken to assure the legality of military intervention is even arguable. Instead, Lord Goldsmith asked for confirmation of Mr Blair’s view that Iraq had “committed further material breaches as specified in [operative] paragraph 4 of resolution 1441”.  Two civil servants dealt with it.  A Mr Brummell wrote to a Mr Rycroft on 14 March:

“It is an essential part of the legal basis for military action without a further resolution of the Security Council that there is strong evidence that Iraq has failed to comply with and co-operate fully in the implementation of resolution 1441 and has thus failed to take the final opportunity offered by the Security Council in that resolution. The Attorney General understands that it is unequivocally the Prime Minister’s view that Iraq has committed further material breaches as specified in [operative] paragraph 4 of resolution 1441, but as this is a judgement for the Prime Minister, the Attorney would be grateful for confirmation that this is the case.”

In his response on 15 March, Mr Rycroft recorded that it was Mr Blair’s “unequivocal view that Iraq is in further material breach of its obligations, as in OP4 of UNSCR 1441”.

Mr Rycroft replied to Mr Brummell on 15 March:

“This is to confirm that it is indeed the Prime Minister’s unequivocal view that Iraq is in further material breach of its obligations, as in OP4 of UNSCR 1441, because of ‘false statements or omissions in the declarations submitted by Iraq pursuant  to this resolution and failure to comply with, and co-operate fully in the implementation of, this resolution’.”310

Lord Goldsmith also described to the Inquiry a briefing from Mr John Scarlett focused on the question of Iraqi compliance:

“… the clear intelligence, the clear advice I was being given by him was that Saddam Hussein in Iraq had not complied with the resolution, not just that there were specific elements of … serious non-co-operation, including, for example, intimidation of potential interviewees …”

Asked what his opinion was on the weight of the intelligence, Lord Goldsmith replied:

“At the end of the day … like any lawyer who is dependent upon the facts from his client – I was dependent upon the assessment by the Government which had all the resources it had … and that was why I particularly wanted to be sure … the week before the events, that the Prime Minister, who did have access to all that information, was of the view that there had been a failure.”

This is the answer of a barrister at the door of the court, with no time to check the facts before he goes into bat for his client. Is it sufficient for the role of Attorney General in circumstances such as these, where the factual issue is absolutely central to his advice?  I do not think so.

Insurance policy and advocate

By the end of the affair, we see the Attorney-General’s culmination of his shift into advocate’s mode.  In presenting his advice to Cabinet and the nation he does not provide his advice, instead, he indicates the legal basis on which he has reached a view that military action is lawful. This is the final, unhappy finessing of his role.  His, then, legal counsellor told the Inquiry:

“He was essentially asserting the Government’s view of the legal position, which was based on his advice … I think that [using the Attorney General to make the public statement on the legal position] may have been a mistake.”

Another witness opined:

“The general practice on other legal issues is that the Attorney does not present the Government’s legal position: that is left to the Minister with policy responsibility for the issue under discussion. That is what was done in relation to Kosovo or Iraq in 1998.”


In disclosing his conclusion but not his reasoning and his doubts, there is a risk that he misled Cabinet, or Parliament.  Clare Short, a Cabinet Minister who was sceptical of the War, complained that she had been misled by advice she thought was unequivocal in nature.

Asked for his view on the proposition that there was never a full discussion in Cabinet about his opinion which was “caveated and was finely balanced”, Lord Goldsmith replied that his advice was:

“… caveated in one respect … It takes the central issue of the interpretation of 1441 and identifies that there are two points of view, and then I have come down in favour of one of them.

“The Cabinet, I’m sure knew that there were two points of view because that had been well-travelled in the press. The caveat was you need to be satisfied that there really has been a failure to take the final opportunity. That, of course, was something which was right in the forefront of Cabinet’s mind, I have no doubt, and I’m sure was mentioned by the Prime Minister and the Foreign Secretary and others in the course of the debate. I would expect so.”

In relation to the handling of the Cabinet meeting on the 17 March, Chilcot offers Lord Goldsmith some comfort:

Cabinet was not misled on 17 March and the exchange of letters between the Attorney General’s office and No.10 on 14 and 15 March did not constitute, as suggested to the Inquiry by Ms Short, a “side deal”.

Cabinet was, however, being asked to confirm the decision that the diplomatic process was at an end and that the House of Commons should be asked to endorse the use of military action to enforce Iraq’s compliance. Given the gravity of this decision, Cabinet should have been made aware of the legal uncertainties.

Lord Goldsmith should have been asked to provide written advice which fully reflected the position on 17 March, explained the legal basis on which the UK could take military action and set out the risks of legal challenge.

Some comfort, but the rest is far from satisfactory.

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Do GCs on senior management teams make business riskier?

There is a current fondness for arguing that GCs should claim their place at the top table of the World’s corporations.  There are a variety of plausible reasons for making the claim -it may solidify the importance of good governance, it’s a sign of the (in-house) profession’s ascendancy, and/or, it’s a simple necessity for large organisations to have legal brains influencing the major decisions.  There is also one central doubt. That doubt is that a place on the Board may negate the willingness of GCs to do the job they were appointed to do. We could define that job in a number of ways but today let’s keep it to this: they are their to better manage the company’s legal risk.

It is of course really difficult to test out what it really means when a GC get’s promoted to the top table: for them, for their company and for their legal risk culture.  So it was with great interest that I read, The association between corporate general counsel and firm credit risk. It’s a study based on analysis of 9,878 businesses between 1994 and 2013. The essential question asked is whether credit risk ratings and credit default swap spreads (prices) change when GCs are appointed to senior management positions.  Put another way, do credit risk analysts (as ‘experts’) think the appointment of a lawyer to the senior management team reduces or increases credit risk?

This is what they conclude:

Using changes analyses for a sample of firms during the 1994–2013 period, we find that credit rating agencies and CDS investors perceive an increase in GC firms’ credit risk relative to non-GC firms upon appointment of a GC to senior management. We also show that bond market participants respond to appointments in the one- and two-year periods immediately following a GC appointment, suggesting that these participants do not perceive GC firms’ credit risk as increasing slowly over time, but rather relatively quickly.

Their analysis controls for various matters: things like size of firm; leverage; tangible property; changers in income; book value; expected litigation risk; and the like. This is important because, they find that:

GC firm industries exhibit higher credit risk via credit ratings but not CDS spreads. In addition, GC firm industries are composed of firms that are larger, have more leverage and tangible assets, higher profitability, higher stock return and cash flow volatility, a greater (lower) propensity for reporting losses (year-over year increases in income), and a higher entrenchment index. We also include the average annual cumulative abnormal stock return in our industry sample and conclude that GC firm industries exhibit more positive abnormal stock returns compared to non-GC firm industries. Collectively, this descriptive evidence suggests that GC firm industries are comprised of firms with somewhat lower financial stability, but greater stock return potential.

So part of the reasons that GC’s might get appointed to boards is the more volatile nature of the businesses that they are promoted  within, but this – on the data – does not appear to be the only explanation because they control for this kind of industry variation in their analysis. The question is why do those assessing credit risk downgrade credit risk on appointment of a lawyer to the senior management team and why do credit default spreads increase afterwards? The claim of the authors is that the lawyer’s presence at the business’ top table may reduce their appetite for risk control in  favour of business facilitation:

…GCs have begun to assume advisory and entrepreneurial responsibilities within the firm. Recent survey evidence suggests a keen understanding of business management, project management, sales, and marketing are necessary attributes of contemporary GCs (Association for Corporate Counsel, 2015). Ganguin and Bilardello (2005) expand upon this notion by highlighting that firms’ credit risk can be impacted by a reliance on GCs who excessively focus on capital raising, firm restructuring, and firm strategy, as well as GCs who allow the firm to become overly aggressive in dealings with suppliers, customers, and other stakeholders. As the GC takes on these new  responsibilities, he/she is likely to place less of an emphasis on the gatekeeping functions and more of an emphasis on the facilitating functions, thereby potentially reducing the effectiveness of the GC’s internal monitoring.

I confess to being a bit sceptical (in, I should add, a totally uninformed way) of the idea that credit risk raters and buyers of credit default swaps might be sensitive to the appointment of lawyers to senior management. But,the authors of the study cite, “the rating agencies [that] caution that an over reliance on lobbyists or lawyers can create a corporate culture that is overly aggressive.”  They also point to other studies suggesting in-house lawyers can be incentivised towards poorer practice by promotion and the like. I’d be interested in hearing views.

It is worth emphasising also though the authors acknowledged limitations of their study:

we employ an admittedly crude proxy to capture the changing role of GCs within firms, [and so] our measure could suffer from considerable noise. Second, our results may be capturing selection effects rather than treatment effects because the decision to appoint a GC to senior management is a firm choice.


So the results are consistent with the weakening of gatekeeping in favour of risky business facilitation, but other things may be going on.  Those other explanations may be alternatives or additional. It is possible, for instance, that a GC promotion is not the moment s/he turns native. Rather it may be a signal (or is read as a signal by credit risk analysts) that there is trouble coming down the pipe or that the business is expanding into choppier waters.

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Blaming the other: Professional irresponsibility in action?

There’s an interesting have your cake and eat it story in Litigation Futures picking up on research done by law firm RPC on an apparent increase in intra-solicitor complaints about an increase in solicitor on solicitor complaints. We are told the SRA received “over 2,500 complaints of this kind last year, compared to 1,850 in 2011”.  That’s an increase of about 7 or 8% a year, I think. Put that against a growing legal services market and I’m not convinced its a big uptick. But whether it is or not, apparently, RPC want to blame clients not the solicitors making the complaints (or the solicitors’ who’s behaviour may have prompted the complaints).

RPC said complaints were “often made at the request of clients who may misunderstand what constitutes misconduct, misconstrue the meaning or intention of the other party’s solicitor, or seek to exploit an opportunity for tactical advantage”.

Graham Reid, legal director of professional regulation at RPC, commented: “This is not about solicitors’ standards slipping. Litigation tactics are getting tougher. My experience is that more and more complaints appear to be filed in order to gain a tactical advantage in court cases.

I suspect this is the kind of spin that firms feel obliged to put out when their law firm clients might be criticised.  Imagine the clients sitting at their desks thinking RPC have done this bloody research showing our standards are slipping – they are plainly, not fully on our side.  But in fact there is, or at the very least there may be, a case for saying standards have slipped (if for instance one takes the protestations of the judiciary about inappropriate correspondence in litigation at face value).

Indeed, one can see another argument that standards are slipping in some of the arguments made by PRC themselves.  I’m rather troubled by the allegation that solicitors would be making misguided complaints, based on misunderstandings of misconduct, or for tactical advantage (the latter – to my mind – a potential abuse of process). An obvious question is who is shaping these understandings, who is offering the tactical advantages? The situation is a good deal more complicated than the RPC commentary suggests. Lawyers retain responsibility for their tactics, they do not simply follow instructions, and if the client is proceeding on the basis of misconceptions, misunderstandings of the law, and being allowed to exploit professional complaints for tactical advantage – in a proportion of these cases at least, the lawyers in question must bear some – and on occasion perhaps all – of the responsibility for that.

A final point odd point is made:

“Of course, solicitors remain under a conduct obligation to report to the SRA any serious misconduct on the part of another solicitor or firm. It’s not always easy to strike a balance between discharging this duty and client objectives.”

I’m open to persuasion, but if serious misconduct is seen, then I’m not convinced that there is a difficult balance to be struck – at least if one takes the professional principles seriously. But then again, I am often struck by how few lawyers understand that their duty to uphold the rule of law and the administration of justice comes into conflict with (say) the best interests of the client. Of course obligations of confidentiality must also be taken into account (so says O(10.4) of the SRA Code), but to my mind that effects the manner and process of the reporting (but I’d be interested in examples to test out the problem). Lawyers should be very cautious of giving a client the whiphand when it comes to alleging or not enforcing ethics. And they should be very wary indeed of blaming clients for misunderstandings, misconceptions and tactical devilry if they are the professional advisers of said clients.  They are not some chump on the battlefield, doing the General’s bidding; they do not get to just shrug and say, not me guv.


Now, almost immediately after posting this story (too soon for it to be anything other than a coincidence), I see a Legal Business story on the same research where RPC are more clearly warning solicitors against over zealous complaining so perhaps they were quoted somewhat out of context (although I don’t think so given this is their own release) or has had a rethink:

RPC legal director Graham Reid said the rise suggested litigation tactics were becoming more aggressive, with legal teams launching complaints against their opposition at the instruction of clients.

Reid told Legal Business: ‘It’s my experience that solicitors, especially litigators, can be over-enthusiastic in making misconduct complaints about the other side’s lawyers. A misconduct complaint is a serious matter: it shouldn’t be used just for the purposes of litigation tactics.’

…He added: ‘A solicitor thinking of making a misconduct complaint should be aware of the risk of wasting the regulator’s time,’ said Reid. ‘The SRA does not have inexhaustible resources, and it may not like being used for the purposes of point-scoring in litigation.

‘Being on the receiving end of a misconduct allegation – even where it doesn’t have a grain of truth to it – can be very upsetting for the solicitor concerned, it can undermine client trust and create potential self-interest conflicts.’

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Mapping the Moral Compass of In-House Lawyers

 Your can now download our report entitled “Mapping the Moral Compass” (or a shorter prettier Executive Summary).

The report looks at the relationships between in-house lawyers’ role, professional orientations, team cultures, organisational pressures, ethical infrastructure and ethical inclination.  It is based on a survey of 400 in-house lawyers working in public, third and commercial sectors.

We think that the report provides a unique profile of real differences within the in-house community. We examine individual and team orientations to the in-house role; the invocation of professional principles; and ethical infrastructure, ethical pressure and relationships with the employer. It is as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted.

Through this research the report profiles the characteristics of individuals, teams and environments most associated with a stronger or weaker propensity to behave ethically. It is important to emphasise that this mapping of the ‘moral compass’ of in-house lawyers shows that ethicality is associated with individual and professional notions of the in-house role but also with team orientations and the broader organisational environment. Ethicality is both a systemic and individual phenomenon.

The report notes that the systemic lesson is important: there is too much emphasis in legal circles on thinking that ethics is about being the right sort of individual. That kind of thinking is complacent and dangerous.

The report shows that individuals, systems and cultures mesh together in meaningful and measurable ways to increase or reduce ethical risk. As numerous corporate scandals have shown, such ethical risk puts individual lawyers at risk of professional misconduct but it also encourages poor quality decision-making for the organisations that employ in-house lawyers: short-termism and sharp practice can lead to catastrophic error.

Some initial findings at a glance:

  • 400 respondents
  • 10-15% experienced elevated ethical pressure. 30-40% sometimes experienced ethical pressure
  • Ethical pressure was highest in public sector organisations
  • 36% agreed that loopholes in the law should be identified that benefit the business
  • 9% indicated saying “no” to the organisation was to be avoided, even when there is no legally acceptable alternative to suggest
  • 65% achieving what their organisation wants has to be their main priority
  • 7% never discussed professional ethics issues with colleagues internally or externally, formally or informally.

Paul Gilbert, CEO of LBC Wise Counsel, who with Steven Vaughan of Birmingham Law School and Stephen Mayson, an honorary prof at UCL, is working with me on the Ethical Leadership for In House Lawyers project (you can keep up to date with that project here)

Whilst some findings give us concern, it is important to emphasise the good practice we found.  Our research suggests that ethical in-house practice is about rounded individual understandings of the role; it is about the approach of teams and the organisations those teams work in; it is about understanding and drawing on all the obligations of professionalism; and, it is about building a better infrastructure to manage the tensions within the role.

This research is part of a broader process of engagement and evolution of best practice with the practitioner community about ethical practice for in-house lawyers. Parts 2 of the process will discuss the findings emerging from townhall meetings and interviews with in-house lawyers.


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Professional loopholers: Pension Protection Fund CEO hits out

Mossack Fonseca has heightened scrutiny of the role of law firms as professional enablers of corruption, and tax evasion.  The collapse of British Homes Stores is throwing up some interesting questions about law firms.  Olswangs and Linklaters have been criticised before a Parliamentary Select Committee, and today’s FT contains an even more interesting point without naming a specific firm (£).  The allegation is that a ‘worthless’ guarantee was given to reduce BHS’s pension protection levy.  The advisers involved are not named but the Chief Executive of the Pension Protection Fund, Mr Alan Rubenstein, is quoted as saying this:

In his evidence to the select committees, Mr Rubenstein said “abuse” of the use of guarantees by companies was “widespread” and that there were “a number of advisers out there, respected firms, who were advising their clients on ways to reduce their PPF levy”

What is not clear from the story is whether he is saying the abuse and the advice on reduction are always, normally or merely sometimes one and the same, but the reputational costs of lawyers saying, I merely advise [on the loophole I discovered] and my client decides whether to exploit it, appear to be growing.

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Lawyers, advocates and the perils of description

Those of us who follow Giles Peaker on twitter (as @nearlylegal – follow him, he’s excellent especially if you have any interest in in housing) will know of his penchant for taking unregulated legal services providers to task about the way they describe their offerings to the public.  I’m glad to say he’s written up some of these encounters in a blog post well worth a read for those of you interested in the regulation of legal services.

His basic concern is that clients will be misled by claims from these unregulated suppliers that they are ‘lawyers’ when they are not solicitors and barristers (or CILEX or… etc.). Another concern is they claim to be advocates, but do not have rights of audience.  Some also claim to be scholars of jurisprudence. Giles seems less worried about them. I will not speculate as to why.

Of course one can claim to be a lawyer if one delivers law in some form (and indeed my own work has shown such ‘non’-lawyers can – in the right circumstances – get pretty good at it).  And I suppose one can say one does advocacy if judges permit me (sometimes? regularly?) to represent my clients even if I do not have a right of audience (say as a McKenzie friend or in tribunals where I do not need such a right of audience). Voila, I am an advocate: like it or not because the term is not protected by legislation.   The ‘truth’ of such claims does not mean the clients are not misled however.  By describing myself as a lawyer clients might be misled into thinking I am similarly qualified to being a solicitor (my recollection is that LSB/LSCP  research pointed in this direction). And saying I am an advocate does not mean I can definitely represent you if I do need a judge to allow me to act as an advocate without a right of audience.  There are even greater problems if I imply I am able to conduct litigation.  As Giles points out, clients of ‘advocates’ or ‘lawyers’ outside of legal services regulation are unlikely to have the post facto protections of claiming on their lawyers insurance or making complaints to the Ombudsman if things go wrong. They are not big protections but they are not insignificant either, especially the Ombudsman.

Giles is doing a manful job in collating this kind of potentially misleading (and sometimes I think more unequivocally misleading) marketing by unregulated providers. What he is not really able to do is collect much evidence of actual harm or the even trickier job of balancing the potential harms and the potential benefits of a cheaper unregulated sector where the law demands no regulation.  (In fact, whether it is cheaper is not much evidenced, I think, outside of wills.)  Neither the LSB nor the LSCP have shown they have the resources to do this properly either (the LSCP’s McKenzie Friend research did more than scratch the surface but it is quite a long way from an adequate evidence base for policy in the area). What we essentially have is educated guesses and interesting stories about the dark recesses of what may be a sizeable part of the legal services market. It is also an important part of the market aimed at the interests of sometimes vulnerable consumers. We should do better.


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