19 May 2010
The new legal ethics
Paul Gilbert, chief executive of consultancy LBC Wise Counsel, argues that the way the world has changed and will do in the future means lawyers need to reassess their ethical norms. LBC Wise Counsel is a Legal Futures Associate
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A good friend of mine was somewhat nonplussed some years ago to discover that the Law Society had set up an “Essex Helpline”. “What on earth,” he opined “does the Law Society think it is doing spending our money on something just for Essex? And what is going on in Essex that they need their own helpline?” He was so wound up that I did not have the heart to tell him immediately that it was in fact the Ethics Helpline.
Professional ethics have, of course, been part and parcel of the legal profession for hundreds of years; without wanting to sound at all arrogant or self-serving, this is one of the great strengths of the profession. Clients, whether they are the humblest of individuals or the mightiest of corporations, can rely on their lawyers acting in their best interests.
Students who come to study the law learn quickly how it is possible to represent even the most reprehensible individual, never to lie or to deceive the courts, but because in the end the strength of a democratic society is judged by ensuring the fairness of the trial and protection from an overbearing state.
Trainee lawyers learn that confidentiality is not just about keeping commercial secrets safe, but a fundamental tenet of their integrity and personal credibility.
Junior lawyers come to understand that privileged advice is not a misnomer; it is indeed a privilege to be able to fearlessly advise a client on their rights, their responsibilities and their plans.
And yet in the second decade of a new century, the centuries-old traditions look like they might have lost their lustre just a little. I do not mean that the profession is less professional or that access to justice, confidentiality and privilege (etc) are less valued, but I do wonder if it is enough and whether we need to do even more.
In the last ten years we have seen Enron, the near collapse of the banking system, an adrenalin-fuelled tech bubble, what many consider to be an illegal war in Iraq, endemic corruption in some states and a legal profession that looks increasingly uncertain as to whether it is a consumer-driven, branded and commoditised service or an independent, bespoke and hands-off advisory service.
In this last turbulent decade I do not want to pretend that the lawyers could have (should have) done more in a sort of faux heroic role acting as protector of the common good, but I do want to challenge whether the old precepts of professionalism have adapted enough to cope with the demands of 21st century living, commerce and politics.
It is not just the world that has changed, but the profession has changed too. Look at how many lawyers are now employed by institutions and businesses to be in-house legal advisers; consider how transformatory the Internet and e-mail have been in the way lawyers communicate with their clients and with each other; and reflect as well on how this has also been influential in opening up new markets and new territories.
I see all these things as very positive; the legal profession has become a globalised phenomenon that has, in less than a generation, moved from being seen as Dickensian in its practices to something that influences millions and millions of lives every day by supporting everything from governments and international trade on the one hand, to the lease of the corner shop and the arrested shoplifter on the other.
Do we need a new norm?
So, given all this change externally and within the profession, should we examine whether what “professionalism” means today is enough? Are we still adequately protecting our fellow citizens? Do we in fact need a new normal for what ethics should mean today? My emphatic answer is that yes we do, but I am not going to pretend to have answers to such complex and important issues as these. I do think, however, that we need to have the most informed debate we can.
There are two crucial factors as to why we must do so and why there is not a moment to waste.
- First, because our world has changed so much and modernisation does not always go hand in hand with simultaneously developing an up-to-date ethical code that supports innovation and change;
- Second because in an ultra-competitive and de-regulating world where services might in future be provided by all and sundry and where being a fully qualified lawyer might become less and less meaningful, we need try to re-assert the values of the profession.
So what might the new ethics look like? Perhaps a responsibility not just to see that business decisions are made within the tight definition of statute or regulation, but a duty to at least ask the question of whether an action is in the interests of shareholders and employees as well? Or an obligation to ensure that companies and institutions demonstrate a serious, proportionate and competent commitment to regulatory compliance? Or a responsibility to enquire whether the policies and practices of an organisation are environmentally sustainable? Perhaps, finally, a requirement to sign-off deals, trading statements and accounts as having been achieved without corruption or any lack of transparency?
More grandly, should there be a duty on every lawyer to protect the rule of law and to proactively promote access to justice?
I am, of course, aware that within the confines of such a short article, précised ideas can look foolish and crazily simplistic, but at the heart of this concern for what ethics should look like today, is I think a legitimate and very real concern for lawyers. Frankly what is the point of lawyers if all legal knowledge, wisdom and insight is apparently capable of being synthesised to a few bytes of digital information?
For the sake of the profession, I believe lawyers themselves must at least be prepared to explore what being a lawyer means today and therefore to re-establish an ethical code that supports our modern, diverse and multicultural profession. Not just an Essex helpline, but one for all of us to reassert our value and our values in such a busy, crowed and impatient world.
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