Debunking the 'Oxymoron' Perception and Assessing the Evolution

Introduction

There is a general perception about lawyers not being ethical, leading to Herring describing ‘lawyers’ ethics’ as ‘a great oxymoron’. Popular culture and certain events have led to the development of the presumption that legal profession and ethical conduct are incompatible with each other. Nevertheless, legal ethics and norms have developed significantly in the UK after the Watergate scandal brought the question of ethics of legal profession to the fore by Chief Justice Warren Burger of the US Supreme Court, and development of courses on legal ethics in the UK. This indicates that there has been a growing acceptance of the application of ethics to the legal profession, which is also reflected in the adoption of Codes relevant to the legal profession. With this development, there has also been a debate on the extent to which the standard conception of lawyers’ role should be changed. This essay explores the nature of standard conception and how far is it applied by the professional codes.

Standard conception

The standard conception of lawyers’ role is based on two principles, those of neutrality of the lawyer and partisanship. This essay critically explores the issue of legal ethics being developed to the point of affecting the standard conception of lawyers’ role in context of neutral disposition towards those needing representation, and intense zeal or partisanship. Boon argued that there is justification for striving for balance in lawyers’ role so that neutrality and zeal of lawyers can be maintained because if these features are diminished or lost, this can affect the protection of rights negatively. On the other hand, Wendel has proposed that lawyers should be loyal to the law and not to the client (an alternative to standard conception). He argues that while lawyers are required to be loyal to their clients, their obligations are to be exercised within the law and when lawyers show greater loyalty to the client rather than to the law, they are acting unethically. Arguments that seek to dilute the standard conception of lawyers’ role in the context of principles of neutrality and partisanship are based on the premise that the standard conceptualisation needs relooking or reimagining. The standard conceptualisation of lawyers’ role is that the lawyer has a role-differentiated relationship with the client which justifies actions and decisions on the part of the lawyer or legal professional, which may be considered to be immoral if they were taken by non-lawyers. Thus, a lawyer may represent a client believing that they are guilty, undertaken procedural processes for the advantage of the client knowing that such processes may be immoral (eg., seeking cross examination of the rape accuser), and undertaking tasks for the client which are immoral (eg., drawing up a will to exclude inheritance of children for their moral views). This places the lawyer in an amoral position where morality of the actions is not a relevant issue so long as the lawyer is acting within the law. In this respect, the ethics for legal professionals may be significantly different from other professionals’ whose actions

The standard conceptualisation of lawyers’ role is that the lawyer has a role-differentiated relationship with the client which justifies actions and decisions on the part of the lawyer or legal professional, which may be considered to be immoral if they were taken by non-lawyers. Thus, a lawyer may represent a client believing that they are guilty, undertaken procedural processes for the advantage of the client knowing that such processes may be immoral (eg., seeking cross examination of the rape accuser), and undertaking tasks for the client which are immoral (eg., drawing up a will to exclude inheritance of children for their moral views). This places the lawyer in an amoral position where morality of the actions is not a relevant issue so long as the lawyer is acting within the law. In this respect, the ethics for legal professionals may be significantly different from other professionals’ whose actions may require a higher standard of morality (such as, medical professionals). However, it is argued in this essay that the legal professional is in a peculiar position of being the representative of litigants as well as the upholder of the law, which requires a balance between the duty of the lawyer to the client with the duty of the lawyer to the society, which brings the lawyer back to the standard conceptualisation of lawyers’ role.

The two principles that Boon speaks of are the principles of neutrality and partisanship and these have been considered to be essential to the legal professional’s ethical behaviour. The former required that the lawyers should represent clients or causes that they may disagree with morally, and the latter demands that lawyers should fulfil their client’s wishes to the limits of the law. A lawyer that follows these two principles in relationship with the client is absolved from moral responsibility on whether the actions are inherently good or bad. To put is in a different way, a lawyer may claim to be morally correct where the two principles are applied, irrespective of whether the lawyer is actually morally correct or not. Some critics have called this view of legal ethics and functions of the lawyers as morally indefensible. However, if these principles are to be diluted, it would mean that on one hand, the lawyer can make moral decisions on whom to represent and this can mean that lawyers can choose to refuse representation to some clients based on moral grounds; and on the other hand, lawyers can also choose to not exercise zeal if it is morally reprehensible for them to do so. However, such changes are not as yet acceptable under the system of legal ethics that is prevalent and will be discussed presently as part of discussion on the Solicitors Regulation Authority (SRA) Code Handbook 2019, which became effective in 2019, and the Legal Services Act 2007. First, it would be useful to contextualise the discussion within the general understanding on legal ethics.

Professional codes Professional norms and professional values play an important role in regulating legal profession; the former through norms laid down by professional regulators and the latter through the values developed as important to the professional community. According to Bayles, professional norms are the same as ordinary norms of behaviour but specify how professionals must relate ordinary norms to the situation in which they find themselves. A system of legal ethics is essential to raising public confidence in the legal profession and this is a justification for giving significance for including certain ethical issues in the legal profession in the form of rules and regulations. There are some crucial differences between breach of ethical principles and breach in norms, as the latter indicates a character flaw does, while a breach of norms does not necessarily do so. In a sense, legal ethics allow lawyers to take neutral or zealous stances depending on the circumstances of the case. However, with the adoption of rules and regulations on legal ethics, there is also less discretion to the lawyers on whether they can refuse to represent a client or the exercise of zeal.

Over time, regulations and norms have also been made so as to simplify the understanding of ethics for lawyers which are based on the morality of the acts or decisions that can be taken by the legal professional. The Legal Services Act 2007 and the Legal Services Board are relevant here. Legal profession is no longer self-regulated to the extent it was before after the passage of the Legal Services Act 2007 as regulation on legal ethics is done through the Legal Services Board. The professional Codes of conduct, or the set of standards by professional bodies have laid down the ‘virtues’ of the legal profession; general responsibilities of lawyers, and rules prescribing specific conduct. These rules of conduct are now central to the ordering of how ethics are viewed within the domain of legal profession. Coming back to the Legal Services Act 2007, there are eight regulatory objectives that are provided in the law in Section 1, which include inter alia, improving access to justice and protecting the interests of consumers of legal services. Section 1.3(a) to (e) explicitly provide the duties of lawyers as follows: to act with independence and integrity; maintain proper standards of work; act in the clients’ best interests, maintain client confidentiality, and, act with independence in the interests of justice. The Solicitors Regulation Authority (SRA) Code Handbook 2019 also provides Principles, which includes the principle of acting in the best interests of the clients (principle 7). In this Code, both neutrality and partisanship is provided: neutrality involves commitment to accept consumers as clients and accept client objectives; and partisanship involves obligations to use all lawful means to achieve client objectives and absence of third party or public interest constraints on actions for clients. The new SRA Code which came into effect in 2019 also provides the principles of honesty and integrity, which reflects the divergent meanings given to honesty and integrity by the courts. This may be taken to reaffirm the need for loyalty to law and not just clients.

Conclusion

To conclude, the rules of conduct now provided in Legal Services Act 2007 and (SRA) Code Handbook 2019 require the lawyer to be partisan because in achieving the best interests of the client, the lawyer may have to prioritise their clients’ interests over others’ interests and neutrality is also protected demonstrating the continuing relevance of standard conceptualisation of lawyers’ role.

Question 2

The Law Society in a Practice Note has made an observation on the criticism of solicitors for use of legal professional privilege in a way that may frustrate fully informed investigations by government agencies, regulatory bodies and enforcement authorities; while at the same time there is some attempt by some parts of government to encroach upon legal professional privilege. This essay analyses these observations of the Law Society in the context of the nature of the lawyer-client relationship and focussing specifically on the principles of confidentiality and legal privilege. This essay argues that the use of proportionality approach to assessing situations where legal professional privileges may be not allowed to protect the information of the clients can lead to a balance which allows courts to not allow the privileges for the pursuance of legitimate aims. This is permissible because there is no absolute concept of legal professional privilege.

Legal professional privilege is derived from the duty of confidentiality that a solicitor owes to their clients and extends to the duty of the solicitor to not disclose documents or talk about the client’s case with anyone outside their firm without the instructions or permission of the client. The duty of confidentiality is closely linked to the concept of legal professional privilege and seeks to provide protection to the client’s documents and information and stop this information from falling in the hands of anyone not authorised by the client. For solicitors, the duty of confidentiality to their clients is set out the 2019 SRA Handbook. This provides that the affairs of clients are confidential unless disclosure is required or permitted by law or the client consents (6.3). As mentioned above, duty of confidentiality is not absolute and there are exceptions where this duty is to be set aside in favour a more pressing duty. This has been recognised in the common law as well. The Legal Services Act 2007 also includes the duty to maintain client confidentiality as one of the professional principles of legal professionals.

The duty of confidentiality is not absolute. Even in the case of the Data Protection Act 1998, what is provided is a framework for information sharing which may be used to say that there is no absolute barrier against it. Generally speaking however, there is a common law duty of confidentiality which binds the solicitor and stops him from sharing confidential information about his client. Information can be shared in case of express consent or an overriding public interest but not in any other condition. This becomes relevant to situations where the client may be involved in activities that may be fraudulent because in such cases, the solicitor may be required to share information about the client without the approval of the client. The case of Finer v Miro is instructional on how solicitors may be required to disclose confidential information if they are privy to information that relates to fraud committed by the client. The Court of Appeal held that the solicitor may disclose information held on trust by the solicitor where they believe that this information relates to fraud committed by the client. Importantly, the Court of Appeal held that except in case of knowledge or belief of fraud committed by the client, the solicitor is not allowed to divulge such information in the situation presenting itself in the case. An important point that may be noted here is that privilege is not absolute and that in some cases the solicitor may be required to share confidential information.

Legal professionals have been criticised for sometimes playing a role in facilitating criminal activities by not reporting the activities of the clients or frustrating the efforts of the investigators to unravel such activities. Solicitors’ use of legal professional privilege can at times lead to perverse outcomes for the investigations and also third parties. In one case, a solicitor’s use of legal professional privilege in giving a reference for his client for the purpose of purchasing a Mercedes on credit, while knowing that the client was out on bail before trial for criminal dishonesty, led to a loss for the dealership when the client absconded with the car. In this case, the dealership was able to recover damages on the basis of a misleading reference but the court did note that legal professional privilege would not have permitted the solicitor to mention the charges against his client in the reference note. This case exemplifies how legal professional privilege can at times lead to perverse outcomes for third parties.

In the UK, legal professional privilege is also extended to in-house lawyers, which is not the case for the EU law in general which is more restrictive than the UK rules. In some cases, the use of legal professional privilege can also lead to violation of human rights or other legal right of others. One case particularly reflective of this situation is that of R. v. Derby Magistrates' Court, in which the House of Lords refused permission for disclosure of an important testimony by a witness in a murder trial (who was previously acquitted of the same murder); the House of Lords refused permission to allow disclosure. On the other hand, the European Court of Human Rights has taken a more proportionate approach to the issue of legal professional privilege and the relationship between the lawyer and client, holding on one case that if there is suspicion that correspondence with lawyers is used to smuggle illicit material into prison, then such correspondence can be revealed to prison authorities. The European Court of Human Rights has recognised that legal professional privilege is not an absolute concept and interference is justified where proportionate and in furtherance of other legitimate aims. The proportionality approach has also been used to hold that a trustee-in-bankruptcy may not review correspondence between the bankrupt and his personal lawyers. Therefore, a proportionality approach is able to balance the considerations on when it is permissible to not apply legal professional privilege. This approach will allow the courts to draw a balance between cases where upholding legal professional privilege is justified for protecting the information of the client and cases where interference is justified as it is proportionate and in furtherance of other legitimate aims. This can be a response for addressing the problem of use of legal professional privilege for frustrating investigation in cases involving fraud by a client.

To conclude this essay, there is no absolute privilege in terms of client-lawyer relationship, which can allow courts to develop a proportionality approach as done by the European Court of Human Rights. This will allow the courts to permit revelation of information to public authorities or other parties where the client is using privilege to conduct fraudulent activities. While there is a common law duty to protect client confidentiality and this duty is a basis for privilege in client-lawyer relationships, it is at times required by reasons of public policy and pursuance of legitimate aims for such information to not be protected. In Finers (a firm) and others v Miro, the court allowed the solicitor to breach privilege because the client was using privilege to commit fraud. There are therefore, precedents for exceptional situations where legal professional privilege can be deviated from.

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