neilzone.co.uk
On lawyers, ethics, and integrity
I have been reading some of Richard Moorhead’s new book, arising mainly from the UK’s Post Office scandal, “Frail
Professionalism? Lawyers’ Ethics after the Post Office and Other
Cases”.
It is open access, and available as a PDF (linked above), with html available too; I have not found, nor made, an ePub.
I focussed on chapter
8, “Routes Back to Proper Professionalism”, to see the author’s recommendations.
Mainly, I was reading this through the lens of “what can I, personally, do better”.
For anyone reading this who does not know me, it might be worth noting here that my work is predominantly Internet and telecoms law (with a side helping of data protection).
My work is fundamentally commercial in nature, whether it is advisory (as a lot of it is) or transactional.
Day to day, a lot of it is simply “solving problems”.
I don’t litigate or go to court. I don’t prosecute people. I do not get involved in employment disputes.
For me, a key part of my toolkit for solving problems entails building enduring, trusted relationships, through being honest, reasonable, practical, and diligent, to be able to collaborate in an open, genuine manner. As a consequence, I place considerable stock in my personal integrity.
These things are important to me.
So, _of course_ , I like to think that I already act with integrity and with ethics - these traits are important to me - but I would be foolish to think that there nothing I could do to improve, or that I could not reflect usefully and meaningfully on my own approach.
This is not a review, far less a critique, of the book and more me just noting parts which I found particularly resonant, and reflecting on my own working life.
> What we see in the PO scandal is information being processed based on what is arguable or helpful rather than what is true, fair, and balanced. A culture of ‘can we get away with it?’ is driven by wishful thinking and legitimised by lawyerly zeal.
Yes.
I think that this is particularly true when someone has determined the conclusion that they wish to reach, and is asking for legal advice to support that pre-determined outcome, irrespective of what a neutral, independent appraisal of the situation might conclude.
Conversely, if someone has a goal in mind, but is genuinely open to hearing “there is no appropriate (that’s a tricky word; that needs unpacking) way of doing it, but here are some alternatives”, then that is rather different.
> [Lawyers] compete on being commercial, and more business partnerish.
Yes, absolutely.
For me, “being commercial” means giving my clients practical, sensible advice, consistent with the broader context of whatever the issue might be.
It does not mean - to me - being willing to bend rules, or look away, or act unethically because that will maximise revenue, or increase shareholder value, or make a problem go away, and so on.
For what it is worth, I think that “being commercial”, in the sense of my definition above, is a desirable trait in a solicitor. People want, and deserve, pragmatic problem solving, at a reasonable price.
If “being commercially aware” is being used as a shield for impropriety, then that is indeed problematic.
> If a lawyer is asked for an opinion that will foreseeably assist illegality or mislead others they should decline or take reasonable steps to prevent or limit that risk.
Yes. I am struggling to see how preparing advice with the intention of misleading someone could be consistent with a professional duty to act with integrity.
> Harm to a client’s opponents, for instance, cannot always be avoided, but being required to consider and, if proportionate, mitigate or alleviate harm might reduce some of the unnecessary excess that lawyers engage in.
I am not entirely sure what the author is angling at here. It is a short section, almost standing on its own.
Could it, for example, condemn the common and (to my mind) unsavoury practice of timing letters, and ensuring deadlines, over holiday periods, to cause maximum inconvenience and stress? Quite possibly, where that is a tactic in itself.
Writing friendlier, or at least more neutral, less aggressive letters? Some lawyers trade on aggression. I don’t; that’s just not me.
In terms of mitigating harm, if I act for Client A, negotiating a contract with Client B (who is also represented), how far would a duty to “alleviate harm” extend?
Would my duty extend to helping Client B achieve the best deal for them, for instance (rather than focussing on my own client’s objectives)? How far would it go into trying to solve someone else’s problems?
(Reaching a deal which is in the interests of both parties may well be desirable for all number of reasons, but that is separate to a professional duty.)
It is curious that this is formulated adversarially, in terms of a “client’s opponents”. It presupposes litigation or conflict. I wonder to what extent it might apply to, say, advice in developing a computer system, where the system could adversely impact the rights and freedoms of third parties who are not “opponents”.
Would it stretch to a professional duty to only advise in the context of designing the least harmful online services, for example. Perhaps not a bad thing, although placing that on the doorstep of solicitors, rather than on the companies developing those services, seems backwards.
> Ethical knowledge and practice should of course be a routine and proactive part of competence review for all lawyers
I would be all for the regulator producing an annual ethics refresher course - perhaps an hour or so’s reading. That would seem very helpful.
> We need to more clearly challenge the claim that lawyers do law but not morality
I agree that “this is arguably legal” is a very low standard.
Similarly, that what is legal is not the same as what is _right_.
I wonder how morality would be judged. Does it depend on a solicitor’s own sense of what is moral, or on some subjective notion of morality?
What of the situation in which there are two, perhaps polarised, stances, with groups behind each stance claiming that morality is on their side?
I don’t think that I object to the notion of solicitors needing to consider morality, but in terms of how that professional duty should be constructed, that seems to need quite careful thinking. Perhaps it has already been tackled in other jurisdictions.