Time for a new charter on ethics

In our current reputational troubles, the legal profession has a choice: we can either continue to take a beating from critics in parliament and the press regarding our so-called ‘professional enablement’ activities, or we can decide to do something positive to turn the story around.

There are various options. For instance, we can lie low and hope that the story goes away. But it has persisted over the years, hopping from subject to subject.

It started with tax avoidance and the leaks of the Panama and Paradise papers; moved to non-disclosure agreements in employment cases during the Harvey Weinstein and #MeToo scandal; hopped to climate change when Extinction Rebellion started to target law firms (pictured); and has now settled for the time being on SLAPPs (strategic litigation against public participation), in view of the activities of Russian oligarchs using our courts to silence critics in the years running up to the Ukraine invasion.

I do not believe that it will blow over. The accusation that solicitors are enabling their clients to undertake activities which, while often lawful, are against the public interest is now too deeply entrenched, finding itself a year ago in reports published by the United Nations and the OECD.

So we move on to the next option: emphasising the core principles of lawyers. I agree with this tack, but it has not proved efficient in moving the dial an inch. We can say to our critics until we are blue in the face that lawyers should not be identified with their clients’ interests, in accordance with article 18 of the UN Basic Principles on the Role of Lawyers. We can say that clients have a right to put their case, and to undertake whatever is lawful – indeed, that it is for the government to set the law, and for the government and the courts to decide what is in the public interest.

But no one listens or cares, and the accusations keep coming.

So I suggest another option, which is that we launch new guidance on our existing code of ethics, guidance which will be fit for the modern age, and in particular for the growing tendency to blame lawyers for the activities of their clients.

I do not think that we need any new principles. The current ones, which include independence, honesty, integrity and upholding the rule of law, are fine. Maybe new attention could be paid to upholding public trust and confidence in the legal profession. In any case, changing the principles is the role of the Solicitors Regulation Authority, not the Law Society. But I think that we could look again at our existing principles and offer guidance.

It might be in the form of red flags or real-life cases. We are used to issuing such guidance in the area of money laundering. The Law Society is one of the professional bodies involved in the Legal Sector Affinity Group’s ‘Anti-Money Laundering Guidance for the Legal Sector’, which has a whole section on red flags in terms of clients, sources of funds, and the nature of the transaction. At random, and to give an idea, they include questions like ‘is the client excessively obstructive, secretive or unwilling to meet you’, and ‘is the client using multiple bank accounts or foreign accounts without good reason’.

Such a model could be transferred to our ethical principles, at least partly focusing on the so-called ‘professional enablement’ accusations. That could put us on the front foot and show our critics that we are dealing with the issues and have up-to-date advice for the profession.

It is not an easy task. The problems quickly pile up.

For instance, the areas of law so far touched by the accusations are very different to each other. What to do about a potential SLAPP which has landed on your desk is very different to what to do about a client whose transaction may damage the climate. There may be general principles and general red flags, but the question arises as to whether a single document could hold such a broad array, or whether there need to be separate guides.

Second, it is important that the Law Society does not burden solicitors with duties which do not appear in the SRA principles themselves. We are not the regulator, and our soft law interpretations should exist to help, not hinder, the profession, and certainly not to be used against us by our critics. That will be a difficult balancing act.

But this idea – a new solicitors’ ethical charter, a new guide to modern problems facing the profession – is at least a positive contribution to a story in which we have so far been outmanoeuvred. We need to get on the front foot, show that we are aware of what our critics are saying and deal with the accusations positively. We need a product.

Jonathan Goldsmith is Law Society Council member for EU & international 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

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