Many of us are armchair moralists. We read histories of, say, the Second World War and imagine what we would have done if faced with the horrendous life-and-death choices that confronted others. Would we have stood up to wrongdoing and faced the consequences, or would we have put our heads down and got on with our lives in the hope that it would all blow over?
As is now well-known, some barristers from Essex Court Chambers issued a legal opinion, sought by clients, on whether the Chinese government is, among other things, guilty of genocide in its treatment of the Uighurs. The Chinese government responded by placing Essex Court Chambers on a list of people and entities subject to international sanctions. This has understandably caused upheaval at Essex Court Chambers, with reports of departures.
There have been protests from UK leaders. The prime minister said he stood firmly with all those sanctioned (which included others who were not lawyers).
The justice secretary made a more lawyer-specific comment: ‘Chambers isn’t responsible for an opinion by one of its members; a lawyer shouldn’t be identified with the acts or views of the client, & the rule of law requires lawyers to be able to advise clients and give legal opinions without [foreign] governmental interference’.
The justice secretary has succinctly identified the biggest problem: ‘a lawyer shouldn’t be identified with the acts or views of the client’.
Before going on to more serious matters, I cannot resist pointing out some vivid hypocrisy. The prime minister recently accused ‘lefty human rights lawyers, and other do-gooders’ of causing the whole criminal justice system to be hamstrung, and the home secretary attacked activist immigration lawyers for abusing the immigration system. These lawyers who were attacked by Buckland’s own government were just carrying out their clients’ wishes at the time.
That is partly what I mean by armchair moralists. The right not to be identified with the client applies not just in China, but in the UK, too – and it is much more difficult to support if it hits your career or wallet. And, of course, to return to the case in point, the amounts of money involved in relation to China are gigantic. A principled stand by one firm, or even one legal profession, will merely lead to the money going elsewhere and probably change little.
I have lost count now of the number of times that I have written about the demise of the principle that lawyers should not be identified with their clients. It seems that practically every day another example is given.
Last week, for instance, the US group, Law Students for Climate Accountability, wrote to the law firm, Gibson, Dunn & Crutcher to ask where their red lines lay in acting for the fossil fuel industry. In the past, student activists staged protests at recruiting receptions held by Paul, Weiss, Rifkind & Wharton, demanding that the firm stop representing ExxonMobil in a series of climate change lawsuits, and hundreds of law students signed a pledge that they would not work for the firm as long as ExxonMobil remains on its client roster.
Of course, this is chicken feed compared to what the Chinese government has now done (and the reasons for the action not comparable, either). I think it is too late to save the principle of non-identification with the client’s interest. Breaches are occurring across a wide range of subject areas: tax avoidance, money laundering, libel writs for reputation laundering, non-disclosure agreements in sexual harassment cases, along with the examples given here of immigration and climate change. It has been broken so often that it is now a dead principle.
We can have an interesting argument about why it has come to this. Did the professional bodies not stand up for it sufficiently vigorously in the days when it could have been saved? Did lawyers boast too much about the identity of their clients and what they had done for them, so blurring the boundary? It would make for an interesting academic study, but does not help us decide what to do next.
There clearly needs to be a debate about the future, but I favour some sort of code to help solicitors navigate the perils that exist between client wishes on the one hand, and the clamour of public policy or the strong arm of a powerful state (as here) on the other. Whatever solution is found then needs to be strongly supported by everyone – profession and government - to avoid the faintest echo of Pastor Martin Niemöller’s words: ‘First they came for the socialists, and I did not speak out - because I was not a socialist’. In the end, there was no-one left to speak for him.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society.