The Ethics and Conduct of Lawyers in England and Wales

Andrew Boon

• Publisher: Hart Publishing
• Year: 2014
• ISBN:
  9781782256090
• Edition: 3
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

This is the third edition of the leading textbook on legal ethics and the regulation of the legal profession in England and Wales. As such it maps the complex regulatory environment in which the legal profession in England and Wales now operates. It opens with a critical overview of professional ideals, organisation, power and culture and an examination of the mechanisms of professions, exercised through governance, regulation, discipline and education. The core of the book explores the conflict between duties owed to clients (loyalty and confidentiality) and wider duties (to the profession, third parties and society). The final part applies lawyers' ethics to dispute resolution and settlement (litigation, negotiation, advocacy and alternative dispute settlement). Now laid out in a more accessible format and written in a more approachable style, the book is ideal reading for those teaching and learning in the field of legal ethics.

PART I

PROFESSIONAL ETHICS

1

Ideals

‘Well, I don’t want to be a lawyer mama, I don’t want to lie’.¹

I. Introduction

Occupations develop ideas about the right way to do the work they do. In the case of lawyers, this involves reconciling some apparently incompatible aspirations. A popular view is that they profess virtue, for example acting with integrity, while making money from helping murderers, tax avoiders or polluters to evade justice. This chapter deals with the issue of how that can be justified. It will explain how moral ambiguity is intrinsic to the job that lawyers do by considering the nature of the lawyer’s role.

Later in the chapter the issue of whether the professional ethics of lawyers can or should be consistent with principles of ‘ordinary morality’ is considered. These issues are approached by exploring the implications of the commitment to the ‘rule of law’. This shapes the roles of judges and lawyers in the Western democracies. It takes on a particular character in an adversarial system. The chapter examines the so-called ‘standard conception’ of the lawyer’s role, together with criticisms of its moral orientation. It concludes with a defence of how the role of lawyer is interpreted in England and Wales.

II. Professional Ethics and Conduct

Ethics is a branch of philosophy concerned with how people make good and right decisions on the issues confronting them. Different ethical theories suggest distinct ways of thinking about making such decisions. Deontology is concerned with whether there is a duty to behave in a particular way.² Consequentialism advocates that one must consider outcomes before deciding on a course of action. Virtue ethics suggests that good character is essential to ethical decision-making. Principlism suggests that ethical decisions should be based on four basic ethical principles.³

In practice, decision-making tends to be intuitive. Most people do not consciously apply ethical theory. They may, however, take into account considerations that reflect one or more of these ethical theories. If making decisions is a complex process, it is more so if one is a lawyer. Considerations informing ethical decision-making for ordinary people apply differently to members of professions. Professionals have a distinct social role to perform. Consequently, they are placed in different relationships to clients, to individual third parties and to society as a whole. As a part of this process they are inducted into the nuances of decision-making in their field of practice.

A. Professions

For present purposes, professions are defined as occupations which the state has endowed with a degree of freedom in running their affairs. They are given this autonomy because they control an esoteric field of knowledge of vital concern to the functioning of a healthy society. This freedom includes having a degree of control over how services in their field of expertise are delivered. The actions of professionals are guided by values that underpin the role they perform.

Members of professions enjoy a high level of autonomy in guiding clients in making important decisions. In return for their freedom, professionals commit themselves to upholding high standards of behaviour. They are placed in an unusual position of trust and responsibility in relation to others. Accumulated practical experience helps them to choose the right course of action in difficult situations.

B. Professional Values

Values are standards influencing choices between courses of action.⁴ They tend to fall into one of three groups: moral values such as fairness, justice and truth; pragmatic values such as thrift, efficiency and health; and aesthetic values such as beauty, softness and warmth. A value system is a collection of consistent and coherent values ranked according to importance. Professional value systems include a mixture of moral and pragmatic values. The core professional values of lawyers can be elusive, or even controversial.⁵ They may be unarticulated, reflect differences of opinion or change over time.

Three examples of lawyers’ values illustrate shades of difference and emphasis. In 2003, a President of the Law Society opined that independence, integrity and confidentiality were the core values for solicitors.⁶ In 2007, another President of The Law Society said that solicitors should possess the ‘level of honesty, integrity and professionalism expected by the public and members of the profession’.⁷ The Code of the International Bar Association emphasises ‘the highest standards of honesty and integrity’,⁸ serving ‘the interests of justice’, observing the law, maintaining ethical standards⁹ and maintaining sufficient independence to allow barristers to give their clients unbiased advice.¹⁰

i. Core Values

a. Client Goods

Professional values reflect client goods, such as a right to self-determination, privacy and protection from harm. These may also be limited by professional self-interest, such as the need to obey the law and keep personal feelings separate from work decisions. The realisation of these values has practical implications. For example, a profession may be committed to the value of client autonomy. In that case, it would promote client self-determination by ensuring that clients make their own moral choices. This would mean training professionals to present options for clients and facilitate client decisions.

b. Neutrality

Neutrality represents the value of disinterestedness. This enables professionals to take a detached view and to reconcile a pull on their loyalties in more than one direction. The value of neutrality is essential to any judicial role, but is relevant to lawyers in general. The idea of equality before the law means that lawyers must be able to represent morally indefensible individuals without compromising their own personal integrity.

c. Public Service

An aspiration to service is not confined to lawyers. In Bhagavad Gita, Lord Krishna says that ‘[o]ne must perform his prescribed duties as a vocation, keeping in sight the public good’.¹¹ The key professional value of legal professions in common law countries is the idea of a professional role as ‘service’. Today this generally means working for the good of the community, being more interested in the work, or vocation, than in the extrinsic reward, money or prestige, it offers.¹² This is consistent with the traditional role of professions in providing alternatives to ‘the tidal pull of the profit motive’.¹³

While there are different conceptions of what it might mean to be a ‘good lawyer’,¹⁴ most are linked to intrinsic rather than extrinsic motivation. This is implicit in Alasdair MacIntyre’s analogy between professional virtue and the game of chess.¹⁵ A player who cheats at chess may succeed, acquiring the external goods of fame, fortune or prestige, but will not achieve the internal goods of the game. These come only to those who play honestly, according to the rules, and with knowledge and skill. MacIntyre argues that the ‘internal goods’ of a practice can only be achieved by ‘subordinating ourselves within the practice in our relationship to other practitioners’.¹⁶ A young professional is inculcated into the practices of a community performing a role well for its own sake. But it does not explain what defines the role. For this we need to look at the good that the role serves.

d. Justice

The status of professions is often attributed to a key good that they deliver to society. Just as the medical profession delivers health, lawyers deliver justice. There are many different meanings of justice and lawyers are associated with procedural justice of a kind delivered by courts. There is no reason why lawyers’ notion of justice should be limited in this way. Lawyers’ concept of justice could be defined to include responsibilities to fairness, to the accessibility of legal services or to striving for social justice.

C. Professional Virtues

Whereas values are standards set by a society or individual, virtues are aspirational qualities for individuals. Professionals aspire to ‘an ideal defining a standard of good conduct, virtuous character, and a commitment, therefore, to excellence going beyond the norm of morality ordinarily governing relations among persons’.¹⁷ Professionals also embrace values that it is not necessary for ordinary people to achieve. An advocate, for example, has to be brave to stand up in court. Professions often express their values as the virtues they expect to find in their members. Therefore, honesty is both a value and a virtue.

D. Conduct

Professions typically set and police standards for education, training and work. These standards are often systematised and reproduced as a code of conduct. This takes some of the effort out of ethical decision-making, but there are a numbe...