Decisions taken by law firms to act for clients, including “environment-harming” fossil fuel companies and others, are not about access to justice or legal ethics, a leading academic has argued.
Professor Steven Vaughan said lawyers at big firms who use the phrase “everyone deserves legal advice” to justify taking on clients were often “deeply hypocritical” because they relied instead on “very personal, highly individualised, moral red lines”.
He went on: “The line ‘everyone deserves legal advice’ would be more palatable if lawyers actually acted on it. But they do not.”
Professor Vaughan, based at UCL Faculty of Laws, said that, during research on the issue, corporate finance partners repeatedly said it was “not their job to judge what their clients did”, that they were “simply neutral providers of advice”, and clients took the decisions on how to act.
“What was interesting, however, was that several interviewees, despite acting very happily for certain companies or industries (which others might have moral concerns about), still had their own very personal, highly individualised, moral red lines.”
In one example, a finance partner would “happily do tobacco defence work” but would struggle to act for a firm that wanted to build in a rainforest inhabited by gorillas.
In another, a partner said he did not care if a client used slave labour to make solar panels but would not act for gambling companies.
Professor Vaughan described this behaviour as ‘Meatloaf Lawyering’, in that many of the lawyers interviewed were saying: ‘I’ll do anything for my clients, but I won’t do that’.
It is timely given the debate sparked by the Declaration of Conscience, in which signatories committed not to prosecute climate protestors or work for fossil fuel companies.
The professor said “the decision for a solicitor or law firm to take on a new matter for a new client is not one of legal ethics, but instead one of ordinary morality (i.e. morality away from any specific ethical obligations of certain role-holder professionals)”.
He went on: “The position is much the same when deciding whether or not to act for an existing client on a new matter, subject only to the complication of the law firm possibly being on the client’s panel of external legal advisers, and having won that place after a competitive pitching process.”
While the ethics of acting for a client who wished to use the law to harm the environment was complex, agreeing to take on a new client and/or new matter “should be rather simple for lawyers in ethical terms”.
He said that arguments about access to justice or everyone deserving legal advice “do not stand up to much scrutiny, especially in the context of legal work for large corporations that want to harm the environment”.
Professor Vaughan said it was “very much the active choice” of a large law firm whether to act for an “environment-harming” corporate client.
“Few clients of these large firms are taken on because of financial necessity (despite focus on ‘profits per equity partner’) or, I suspect, strong moral drivers.”
This led him to wonder how often “the vice of environmental harms and associated law firm profits” was dressed up by lawyers in large firms as “the professional virtue of providing neutral legal advice”.
He said the phrase ‘everyone deserves legal advice’ presupposed a legal system in which there was some form of equality of arms.
“The rule of law does not guarantee the right to any particular lawyer or any particular law firm (or, arguably, to a lawyer at all in civil cases), and there is nothing to suggest that a firm’s refusal to take on any given client or mandate is a particular matter of rule of law significance.”
Professor Vaughan added: “My goal here is not to engage in lawyer-shaming, to ‘saddle lawyers with moral blame if they provided legal assistance to a client bent on pursuing antisocial projects, and did so without violating any applicable standards of professional conduct’.
“It is instead to show how the actions of lawyers, as lawyers, in harming the environment may in fact be crossing (or at least rubbing up against) their professional codes of conduct and amount to unethical conduct.”