Defining a new normal for ethics, lawyers and business

January 5, 2010

A very good friend of mine was somewhat nonplussed by an announcement a few years back; he had heard that the Law Society in England & Wales had set up an “Essex Helpline”. “What on earth,” he opined, “did the Law Society think it was doing spending our money on something just for Essex? And what the hell was going on in Essex that they needed 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, of course, have 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, 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 as though 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; the profession has changed too. Consider how many lawyers are now employed by institutions and businesses to be in-house legal advisers; consider how the internet and email have transformed the way lawyers communicate with their clients and with each other; and reflect as well on how influential this has been 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 a defence lawyer for the arrested shoplifter on the other.

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, “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 reasons 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.

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, ” Is this 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, crowded and impatient world.

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