This week, the Council of the International Bar Association (IBA) will consider Anti-Corruption Guidelines for Bar Associations. I remember when this was discussed in one of the IBA policy groups of which I am a member. The representatives from bars in the west (and from at least one other developed country) fell silent as if a rude word had been said, and commented in embarrassment that this had nothing to do with them. Of course, they could not oppose the IBA issuing such guidelines, but they felt it had no relevance to their work or the work of their lawyer members.
We in the UK fall into the category of thinking that corruption is something which largely happens elsewhere, where people have religions or skin colours different from our own. But there was a recent conference held by the University of Liverpool and the Centre for Crime and Justice Studies called ‘How corrupt is Britain?’.
The background note for this note said: ‘Thanks to the daily reporting of major newspapers getting involved in phone tapping and payoffs to police officers, the seemingly endless examples of the falsification of police statements in some of our highest-profile cases such as Stephen Lawrence and Hillsborough, LIBOR rate-fixing, payment protection insurance mis-selling, horsemeat in our burgers, arms companies bribing foreign governments, drug companies illegally paying other drug companies to keep accessible medicines off the market, politicians being paid to ask questions and fixing expenses claims and so on and on and on, this whopping great myth is no longer plausible.’
There was a debate about the conference on Radio 4 Today’s programme, where the representative from Transparency International UK (TI-UK), an NGO committed to fighting corruption, disagreed that the UK faced such a serious problem. But it turned out to be a matter of definition. TI-UK goes along with the World Bank definition of corruption as the abuse of public office for private gain. This definition would not cover, though, some of our most serious examples, such as the LIBOR rate-fixing scandal or the phone hacking and subsequent intimidation of governments by newspapers. However, the TI-UK representative did say on the radio – and this should give us all pause – that one of the symptoms of corruption in the UK was the provision of international corruption-related services by lawyers and estate agents.
So, assuming we define it properly, corruption is our affair. Solicitors have sometimes played a major role in rooting it out – think of the part played by a handful of our colleagues in bringing the phone-hacking cases into the public eye. A lawyer, Osita Mba, was involved as a whistleblower in another of the scandals which was mentioned during the Radio 4 interview on corruption – the so-called sweetheart deal between the UK tax authorities and Goldman Sachs about how much interest Goldman Sachs should have paid in their tax settlement. In both the cases highlighted, the lawyers paid a heavy price for their struggles: the solicitors in the phone-hacking cases were themselves followed by private detectives to see if they were having an affair, and Mr Mba was suspended and subject to an intrusive investigation. In other words, fighting corruption (in its broadest definition) is not easy.
In their turn, the Law Society and the SRA have played a role in the fight against money laundering, and have issued guidance about its broader relation, corruption. The IBA’s own new guidance does not give very specific instructions about what more bars and law societies should do. It focuses on two areas in particular: the education of lawyers, and positioning the legal profession at the forefront of the campaign. Of course, as we have seen with the definition, corruption differs from country to country, and specific advice for bars in Afghanistan would be meaningless in the UK, and vice versa (do they have phone-hacking tabloids in Afghanistan, do their banks set a worldwide rate?).
That bars and their member lawyers have a role is without question. What is also clear is that, while the bar part is relatively easy, to take specific action will often take great courage from the lawyer, and this comes from commitment to a moral code. The ultra-liberalisation of the legal profession ushered in by the Legal Services Act 2007, with its undue emphasis on market values (structures, ownership, competition among others), is not necessarily the way to instil this into lawyers.
Research some years back at 10 Israeli nurseries showed that parents were less often late to pick up their children before fines were installed for late pick-up – the moral duty to arrive on time was much stronger than the financial disincentive, which allowed people to think that they could monetise their moral duties. I believe that the ability to fight corruption will come from a greater emphasis, not on market values, but on lawyers’ codes.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs