David Howarth, fellow at Clare College, Cambridge, and a former Liberal Democrat MP, argues in this book that lawyers’ work is best understood as having common ground with engineering. That is, engineering not with physical properties, but with ideas and words for the creation of legal structures to put order into some part of the world for a client or employer.
Deal lawyers and legislative draftsmen create rule structures or schemes, advisory lawyers interpret them and the litigation industry works out the consequences when they break down. Thus, Howarth wants lawyers to be seen as practical professionals involved with design and function.
He puts forward the same idea in a normative way regarding the methods, operational values and ‘boundaries’ of lawyers and engineers. Legal problem-solving and engineering are compared, looking at: how briefs are defined and problems tackled; how wide an array of plausible answers may be considered; how the needs of systems are worked out (with ‘open systems’ being the more challenging to work with, being systems of fluid interaction with their environment); how obstacles and risks are identified; how prototypes are assembled and tested; and how ‘success’ is measured and recognised.
He argues that lawyers have much to learn from the wider reach of engineers’ methods and in particular from their awareness of the need for any new or changed device to work well within its surrounding system and not to cause damage.
Comparing ethical values, Howarth writes: ‘Engineering ethics, a relatively new but rapidly expanding field, asks what responsibility engineers should take for… harm… Increasingly, engineers are taught that they should take responsibility for environmental impacts and should attempt to design their products so that they promote sustainability.’
Howarth observes how lawyers in all sectors are not expected to comment on the social effects of whatever they create and are not held responsible for social harm, so long as their work is legal. He criticises solicitors’ regulatory duty to ‘uphold the rule of law’ as being mere rhetoric, with the effect of this being no more than a duty to obey the law, which – depending on what is meant by ‘the rule of law’ – can be something inferior so far as the common good is concerned.
Similarly, Drafting Guidance from the Office of Parliamentary Counsel focuses simply on changing the law and away from the effects of legal change being commissioned – thereby applying an ‘only one level up’ theory of responsibility.
Having interviewed experts in financial services law and studied the contractual structures which precipitated the 2008/2009 financial crash, Howarth notes how the drafters of those instruments were not impugned on ‘conduct’ grounds. The law and the SRA take an essentially amoral stance toward lawyers whose work causes harm to the public, public markets and institutions, as long as it is not in breach of law.
Howarth has a hard time with the lawyer’s adage – ‘my job is to represent the client, not to judge him’ – and with a citizen’s freedom to order their affairs in such a way as is still allowed by the law. How would the solicitor-client relationship work if solicitors were bound to abort work for its emerging anti-social purposes?
The market for legal services would have to accept a convention that restrains clients from commissioning harmful work and there would need to be a forum for identifying when instructions have a harmful tendency.
Lawyers reflect the values of their society, which for the time being expects its professionals to help citizens in playing mouse to the state’s cat. The law has largely invaded professional ethics and dictates their adequacy, with the continual threat of central government intervention over regulators’ exercise of powers, so it can be fairly said that this laissez-faire ethos comes down from the top and the centre.
Howarth’s bones of contention are not with lawyers and their professional bodies, but rather with the state as it is presently constituted and conceived.
His first means to help foster such public-centred reform of accepted professional values is to sew seeds of his morally enhanced world view through the use and understanding of language: once everyone recognises the close parallels of legal work and engineering, so that lawyers are no longer a breed apart but must walk the same road as other professionals, then people will also appreciate the need for a common, ultimate value of the common good.
Lawyers would become collaborators with clients for a responsible pursuit of wealth and other common goods.
It would also require a consensus over a content-rich rule of law, a new settlement over citizen/state relations and duties, much better defined corporate social responsibility. There would also need to be an increase in the authority of professions at the expense of the centre of the state and a widening of the reach of legal education and legal research.
Author: David Howarth
Publisher: Elgar (£69.95 hardback, £25 paperback)
James Brenan is a consultant at Cubism Law