There are things that even lawyers won’t do
Despite all the jokes there are, in fact, a lot of things that lawyers won’t do. Or at least shouldn’t do. In many jurisdictions qualified lawyers are subject to strict ethical codes which are self-policed, usually effectively, and policed too by alert and draconian regulatory bodies.
Is there any point, then, in law firms having their own ethics committees which would decide:
(a) how the firm should deal with ethical questions arising in the course of work?; and/or
(b) whether the firm should accept particular types of work, particular clients or particular cases?
A committee dealing with questions falling under (a) may be helpful. Colleagues routinely discuss such questions of professional ethics – sometimes seeking guidance from their professional regulatory bodies. On balance, a forum within a law firm that systematized that sort of discussion would be a good thing. The only plausible counter-argument would be that a requirement to discuss ethical issues in such a forum might lead to particularly ethically scrupulous individuals being bulldozed by the less scrupulous, or at least less ethically sensitive, corporate conscience. Individuals who might feel that their own professional consciences would compel them (for instance) to blow the whistle to the regulator about a particular practice might be wrongly reassured by the committee that this wasn’t necessary. In most contexts, however, this is unlikely to be a serious worry. Few solicitors would brazenly admit, to a minuted meeting, that they are proposing to do something ethically dodgy. The general effect is likely to improve ethical standards. Ethical dodginess thrives in dark corners and smoky rooms. The rooms in which ethics committees meet are likely to be light and airy.
It may be said that decisions falling into (b) above would be wrong in principle. Such an argument would probably rely on something akin to the Bar’s ‘cab-rank’ rule, whereby a barrister is bound to accept a case in an area of law in which she holds herself out as competent if she is free to do it. The justification for that is essentially constitutional, and is much more comprehensible in criminal cases. It is that everyone, however repulsive, has a right to be heard, and that since lawyer are, often essential mouthpieces, lawyers have no right to be morally fastidious. Doctors, the argument goes, shouldn’t refuse to treat particularly unpleasant diseases: indeed the more unpleasant the disease the moral essential it is that the patient receives treatment.
The argument doesn’t work. Solicitors do not have, and should not have, any such cab-rank obligations. And even if they did, the spirit of the cab-rank rule would apply only to litigation. In fact the argument cuts the other way: it is an argument for ethics committees, not against them. The proper spirit of the cab-rank rule (which is concerned to ensure access to justice) would infuse solicitors’ ethics committees with a presumption that cases that should be heard or issues investigated but which are, for whatever reason unattractive to the firm should nonetheless be taken on.
Some banks have ethics committees. They decide whether or not the bank should invest in particular companies. The investment analogy should be the ruling paradigm in solicitors’ ethics committees. A firm that undertakes transactional work for a grotesque, ecocidal, child-labour-exploiting multinational is far more akin to an investor in that company than it is to a beleaguered defendant in a criminal case facing unattractive allegations. The multinational doesn’t have a right to legal advice about the minimizastion of its tax liability or the best way to shut down its competitors. A firm is and should be entitled to say that it’s not going to work for the multinational simply because the multinational is too ethically smelly, and they don’t want that sort of smell in their chic open-plan offices. The decision to say no to the multinational – despite the huge fees that the work would bring in – would be much more easily made by a committee than by the sole partner who has been approached by the iniquitous multinational. The partner will usually be too cravenly worried about his own billing and his own mortgage to say no.
Yes, of course, the ethics committee will normally do what it says is ‘ethical’ for financial motives. The committee will still be a cog in the firm’s machine. It won’t be able to feign independence. It will say no to the slave traders because it fears that the firm’s reputation will be adversely affected, with consequential long-term financial detriment, if it does not. The zealous young advocate of an ethical position will make his speech to the committee in the hope of a partnership, because being a decent person still cuts some ice, even, occasionally, in the City of London. But this doesn’t matter. Right decisions for the right reasons are ideal, but right decisions for the wrong reasons are still better than wrong decisions. Reciprocal altruism is still altruism.
So: bring on the committees that give the lie to the old jokes.