Solicitors can learn valuable lessons from the Phil Shiner affair.
I first met Phil Shiner when he ran what was effectively a one-man law centre for Frank Field MP in Birkenhead in the 1980s. I knew him when he was Birmingham’s expert on section 99 of the Public Health Act 1936 that allowed tenants redress for disrepair. We kept in contact while he was litigating the Baha Mousa case.
I was distressed to see him struck off for a series of issues relating to another Iraq case, Al Sweady. This involved the irregular obtaining of evidence; the tainting of legal aid applications; and a personal endorsement of ‘allegations that the British Army had unlawfully killed, tortured and mistreated Iraqi civilians… in circumstances where it was improper to do so.’ His misconduct has sparked off denigration of such a scale that it affects the whole profession. This piece is not, however, really about him. It is about the lessons that we – and particularly aspirant and new solicitors – should learn from his case.
First, integrity is a quality that should run through any solicitor like letters through a stick of rock. Indeed, with more attention to basic values like honesty and client care, we might have avoided the external regulators with which we are now saddled. And, if your practice takes you to oppose powerful forces, then self-interest joins with professional obligation. Ethical temptation rarely comes in a plain brown envelope tied with a bow and announcing itself for what it really is. There are an infinite number of corners that can be cut with apparent impunity and compromises with truth that do not seem significant. Worst of all, commitment to a cause may lead to compromise of values: what the police once called ‘noble cause corruption’. To survive, a solicitor must pass by serpents peddling a variety of tempting fruit.
Second, every so often you get cases where you do need to lose perspective and ‘lock on’ like a missile. I have seen solicitors of every kind get obsessed when they thought clients were suffering an injustice. And they just went at it beyond all reasonableness. A really good example is one of my true heroes – Alastair Logan. He picked up a duty solicitor case; it turned out to involve the Guildford Four and became one of the great miscarriage of justice causes of modern times. He saw it through to the very end; then reinvented himself as a family mediator. The solicitors behind other major miscarriages have been just as driven. The truth of the Hillsborough disaster only finally unravelled through a combination of relatives, fans and lawyers like Elkan Abrahamson who kept going for years in the wilderness before vindication. The best of our number have a capacity for obsession, albeit not at the expense of the professional.
Third, the substantive point at issue in much of the litigation which Shiner took on over his career was a crucial one – the accountability of the powerful. In relation to the military, you can argue about where the line of liability should be drawn. But you cannot really argue about the matter in dispute for Baha Mousa. Troops of an occupying power must be held to an appropriate standard of behaviour. If their officers will not take that responsibility, lawyers must ensure that the courts do.
The abduction and random killing of local people is not only morally wrong, it is spectacularly misguided if the armed forces are acting in the professed belief that they are protecting the local population. In relation to Iraq, others took up the same point – and bore no little criticism. Lieutenant Colonel Nicholas Mercer was the British Army’s chief legal adviser in Iraq in 2003. He took an unpopular stand against conduct which he believed amounted to ‘torture’. That is the sort of ethical commitment we want to encourage, support and celebrate.
Solicitors may well find themselves more isolated than barristers in taking up unpopular cases with difficult ethical issues. The bar provides strong social ties that protect its members and they are shielded from direct contact with clients. Solicitors practise more collectively but can feel more isolated in taking a stand when so much closer to those instructing them. As a profession, we need to value and support those of our number who put themselves on the line for clients and interests that may – for many years and even for ever – be seen as unworthy. As a society, it is better that the boils of injustice, anger and betrayal are lanced by dedicated lawyers than left to fester. The disaster at Hillsborough was eventually acknowledged. The outrage of Baha Mousa’s death was recognised. The Irish insurgency was eventually ended. We should celebrate the lawyers who played a part in all those.
And, yes, we must also underline for all our members that professional ethics is not a tick-box exercise but the upholding of some pretty clear fundamental values. Break them and you should be struck off. But that should not intimidate solicitors from dedicating themselves to fighting injustice.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice