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Ethics and access: striking the right balance

Featured ArticleEthics and access: striking the right balance

What is an ethical lawyer?

Should an ethical lawyer steer clear of certain clients on public interest grounds?  And should the regulator police the profession’s choice of client?

By BSB Director General Mark Neale

These questions – or questions very like them – are currently much debated.

So how would I personally answer them?

A good starting point is to state clearly that lawyers generally, and barristers in particular, are not there just to do their clients’ bidding, right or wrong.

It is a fundamental professional ethic that a barrister’s duty to the administration of justice trumps his or her duty to any client.  A barrister must also act with honesty, integrity and independence. So a barrister must not, in advocating a client’s case, do anything to mislead the Court or state anything which he or she knows to be untrue.  Justice and the rule of law may require barristers to disclose relevant evidence in their possession even if it is not helpful to their clients’ cases (or withdraw if the client does not consent to doing so.)

These are profoundly important ethical imperatives for any lawyer.  They are, for example, one of the major issues under consideration in  the current Public Inquiry into the Post Office miscarriages of justice.

It is, however, to take a step beyond these general duties also to argue that lawyers should make ethical choices about whether to act for certain types of client or in certain types of cases.

Advocates for more ethically engaged lawyers are driven by a number of respectable concerns.

Central to these concerns is the risk that the law is being exploited to defend the interests of wealthy but corrupt or unethical individuals or organisations.  This is linked to concerns about flows of dirty money through London and UK financial institutions.  It is also prompted by perceptions that the law itself is being used to intimidate journalists and writers who call out corruption or other unethical behaviour.

This is the origin of the term lawfare – lawsuits launched for the main or sole purpose of supressing free speech by exposing those willing to take a public stand to the risk of huge legal costs.  It has also given birth to the ugly acronym SLAPPS which stands for Strategic Lawsuits against Public Participation.

So, should regulators step in with rules to prevent lawyers becoming accomplices in lawfare or in lawsuits which are not in the public interest? There is a growing body of opinion that lawyers should sometimes prioritise the wider public interest over the interest of clients.

But this doctrine collides head-on with another important principle; namely, that of access to justice.

One can sympathise with the argument that, for example, those who act illegally or unethically, or who seek to shut down legitimate criticism in the media are acting contrary to the public interest. But should lawyers make a judgment that some clients are beyond the ethical pale, and therefore should not be represented?

The application of such an ethical test is likely to be difficult at the Bar because the cab rank rule requires self-employed barristers to take on clients in certain circumstances.  And all practising barristers are bound by the requirement not to discriminate. To put it another way, these rules mean that barristers cannot turn down a case because they find it objectionable, or turn away a client because they don’t like that client’s views.

These rules are a crucial safeguard for access to justice.  Most obviously, they guarantee the defendant accused of even the most terrible crimes the right to a competent defence.  Less obviously – but no less important – it guarantees the independence of barristers themselves against pressure to take on, or to turn down, particular cases or clients. It ensures individuals are able to take action when they have a case to do so, particularly against large companies, or against government.

So does that mean that barristers should just turn a blind eye to lawfare?

Not necessarily. If a case is obviously unarguable either legally or factually, then the barrister’s overriding duty to the court to act with independence in the interests of the administration of justice may be engaged, as might the barrister’s duties to act with honesty and integrity. If so, there may be a case for regulatory action if a barrister nevertheless persevered with such a case. The Government has announced plans for reforms that would tackle SLAPPs by enabling cases that lack merit to be struck out early, avoiding excessive costs for those on the receiving end. Such processes will be welcome and will enable the identification of cases where there is a legitimate cause of action or where the case is  an abuse of process.

But otherwise, I question whether barristers can or should substitute their ethical judgement when instructed to represent someone with a properly arguable case in law.  It is very difficult, it seems to me, to expect the barrister to decide, in these circumstances, whether the ethical implications of the case  outweigh the private interest, and rights, of the client  to take legal action.  Indeed, unless the client is indiscreet, it might be very hard for the barrister to know whether the client’s motive is truly to right a perceived wrong or, in reality, to use the legal process to extinguish debate by the threat of expensive legal action.

If the wider public interest and private interests should be weighed anywhere, it should be in Court within a framework of law, not in the privacy of a barrister’s chambers with the implied threat of regulatory action if the barrister chooses the “wrong” option.

BSB Director General Mark Neale

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