Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

The ethics of pushmi-pullyu

05 April 2012

Alex Aldridge has an interesting article in the Guardian reporting on legal ethics, drawing on interviews with Professor Richard Moorhead and Sylvie Delacroix, both from the UCL Centre of Ethics and Law.

The thesis of the article is that legal culture and commercial interest tends to pull lawyers into supporting their clients, rather than acting in the public interest. To avoid this, they suggest, legal culture, legal training, and thereby lawyers, should focus more on doing the right thing.

Nobody could suggest that legal ethics aren’t important, or that lawyers always get them right. I tend to agree that legal ethics training could be more rigorous and should be improved.

But the article, I think, ignores one of the big challenges in legal ethics: that being pulled away from supporting your client to pursue a general good is often itself an ethical failure – and undermines a wider public interest.

A great deal of legal ethics is devoted to preventing lawyers making wider moral judgments. The classic example is the Cab Rank Rule. Barristers regularly take on clients whom they dislike or disagree with. They help them achieve outcomes that, in the individual situation, are almost certainly morally undesirable.

The dramatic examples are in the criminal field – the defence getting a violent criminal off on a technicality and so forth. But they happen throughout the legal system. I’ve got outcomes for employment claimants that I didn’t think they deserved.1 And I once, anguished, said nothing while a litigant in person settled a case for an absurd overvalue in our favour, despite the fact that my client’s position was morally reprehensible and badly flawed legally.

We accept these individual injustices, because there is a wider public interest in people having access to legal advice and representation. This is only possible if our clients trust us to act on their instructions, rather than on what we think is best – either for them or for the wider public interest.

Of course, this has to be balanced by other considerations – hence all the other rules such as the duty not to mislead the court.

It’s this balance that makes legal ethics difficult in practice. You’re rarely dealing with just one moral principle. Its the push and pull between your duties to the court and your duties to the client that makes things complicated.

This means that saying lawyers need to go beyond doing the minimum necessary to comply with their rules is more difficult that it seems. Where different duties come into conflict and need to be balanced it doesn’t work. Going beyond what is necessary in one area means not doing what is necessary in another.

The article also suggests that outcomes-focused regulation may put the responsibility for getting the ‘right outcome’ in a wide sense on the lawyer. I’m not an expert on outcomes-focused regulations, but I’m not sure this is quite what it involves. In any event, in so far as this means overriding a clients wishes in their best interests this seems wrong to me.

Clients who don’t take good advice and act unwisely are not uncommon. But surely they have a right to make their own decisions? Lawyers can and should advise (sometimes strenuously). Once the advice has been given, however, I think a client is entitled to act against it. In part this is a personal liberty issue, but also, sometimes the client is right and the lawyer is wrong!

All of this is to say what I’m sure all involved in the article know well – that legal ethics are difficult, both in theory and in practice. Lawyers need good training, and a supportive culture, to help them make the right decisions.


An aside. The article also raises the question of whether lawyers’ ethical duties should include doing a certain amount of pro bono work. Speaking for myself, I feel quite strongly that it shouldn’t.

Pro bono work is a good thing. The legal professions can be proud of their tradition of pro bono work and the substantial amount of free work they do.

This doesn’t, however, mean it should be compulsory. There are all sorts of very good reasons that some lawyers don’t do pro bono work – that they work in the poorly paid, but vital areas like legal aid; that they contribute to the general good in some other, non-legal, way; or that their personal circumstances make it difficult or impossible.

Anyway, even if a lawyer doesn’t do pro bono work just because they don’t want to, I’m not sure it should make them less of a lawyer. Enforced virtue seems a bit of an oxymoron.

  1. Although one of the perks of working at FRU is that this doesn’t happen very often.

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