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Lawyers must demonstrate sound judgement in turbulent times
History describes circumstances where moral attitudes change. Slavery was accepted as perfectly normal for centuries, indeed a reflection of an ordered universe; today it is considered abhorrent.
Gay marriage was unthinkable for millennia, yet is now permitted by the laws of some countries. I assume that we all wish to live our lives virtuously, but how can we be sure as to which practice reflects a temporary fashion and which an eternal value? I will here examine what lawyers should hold on to in times when values are overturned, which might be particularly relevant as our economic upheavals work themselves out and introduce new necessities.
None of our examples is as dramatic as slavery or gay marriage (and I do not wish to draw any equivalence between these two, which are just random historic instances). Nevertheless, some of the cast-iron assumptions with which we conduct our business are being questioned, and rather quickly. At the risk of abruptly plunging in matters of importance from the horror of slavery, the question of non-lawyer owned businesses, or alternative business structures, is a good example on which I will expand. Non-lawyer ownership was a big no-no just 20 years ago, because the principle of independence was held sacrosanct. Yet it is now encouraged by the government and our regulators, as a result of a redefinition of the meaning of independence. What has changed? Is there some permanent value to be held on to notwithstanding?
In Europe, ABSs have just been introduced in Italy against the will of the Italian legal profession, as part of economic restructuring. They were implemented in Spain in 2009. And it is not widely known that there is a study currently being undertaken which will look more generally at the legal services sector in Europe, within the framework of a review of the lawyers’ directives (the Establishment Directive 98/5/EC and the Services Directive 77/249/EEC). This study will specifically look at whether the provisions of cross-border movement are still appropriate ‘in the light of increasing interest in alternative business structures and multi-disciplinary practice within the legal profession’. (Incidentally, the study will also look at whether the scope of the directives should be extended to broader categories of legal professionals, apart from lawyers.)
Change is, of course, not just a European question. The Brazilian Bar, for instance, is trying to hold the line on another matter: the entry of foreign lawyers into its market. It passed a resolution last November stating that associations between foreign lawyers and Brazilian lawyers are not allowed. I have heard Brazilian lawyers wax passionate about this principle, as if it is one of the Ten Commandments. But what is the bet that in a few years such associations will be allowed in Brazil?
The obvious answer is to say that in times of upheaval lawyers should hold on to their core values. It is interesting to note in this regard that recently several bodies have felt the need to restate these: the Solicitors Regulation Authority with its mandatory principles; my own organisation (the Council of Bars and Law Societies of Europe) with our Charter of Core Principles for the European legal profession; and the International Bar Association with its International Principles on Conduct for the Legal Profession - all within the last few years, as if we felt that a storm was coming, and sensed the need to give lawyers the tools to survive it.
There is a problem, though, with any core principles. It is true that they are a guide to whatever passes for the eternal in lawyers’ lives (of course, nothing is permanent, and so I shall replace ‘eternal’ with ‘long-lasting’). However, if these long-lasting values reach too far into abstraction, they can mean opposite things to different people. ‘Independence’ is a value which appears in any core list for lawyers. But in some it means no ABSs, in others it permits ABSs. Or, to take another example in case it might be thought I am obsessed with ABSs, ‘independence’ means to some that in-house counsel cannot be members of the bar, whereas to others it allows it. And the duty to act in the best interests of the client, which appears in one form or another in all lists of core principles, can mean telling the truth to the court against the client’s interest in one jurisdiction, and ignoring the duty to the court - and so making the client supreme - in another.
So what do we hold on to in the storm, to help us survive with our morals and daily practices intact? Core values are all well and good, and we need them, but as we have seen they can be interpreted to mean conflicting things. Yet if we go too far in defining our core values further, there is a danger that we tie ourselves to inflexible positions, unable to take account of modern changes. A good example is the relationship between the development of cloud computing and the core principle of client confidentiality. Soon, I assume, all data will be stored in the cloud, which will be managed by gigantic companies based in the US or China, moving data about to various jurisdictions that have inadequate data protection laws. Do we forbid lawyers to use the cloud in such circumstances - which is a bit like forbidding them to use the telephone or the computer, since it will be almost inescapable - or do we adapt our rules to modern reality?
My answer to the conundrum is this, which is not very different to the philosophy behind outcomes-focused regulation: we need to stick with our core principles, and apply sound, honest judgement to their application to new circumstances. We will probably make mistakes, but we should emerge at the end of our upheavals with mostly sensible decisions, intact consciences and a record that we can defend to the future profession.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs.