REPORT: We need to talk about ethics

The World In Motion report by Obelisk Support calls for the legal profession to not stand still. Not only must we not stand-still, but there is a call to re-ground what we stand-for.

I comment on the report below.

What are your thoughts on how we regain the trust of the society we serve on an ethical perspective as a legal profession?

“Lawyers have a contract with society to practise law. Under that contract, which is enshrined in their regulatory duties, they promise not to put the interests of their client above the rule of law and administration of justice. Acting ethically is to act in accordance with their regulatory principles. The legal profession upholding or building trust with society, is therefore about going back to these basics and ensuring they are never compromised. To do this requires us to bring independence to life in the day to day of legal practice in all and any context, including in commercial work, where the rule of law may seem rarely implicated. This is the G of ESG for the legal profession - instituting this as foundational governance within the practice of law.”

How do we provide agency to junior lawyers to achieve that? And what one practical thing needs to happen in 2024 to facilitate this?

“In terms of how to provide agency to junior lawyers, I would start with a reminder that the practice of law is not about ideology or morality in a generalised sense, but about what has been encoded in law and regulation. If you are asked to do something that conflicts with the law or with your regulatory duties then you will need to speak out on that and hold a clear line. Re-read your regulatory code periodically to ensure you understand what is required of you. This is different to having a preference or value set that is counter to what your employer needs you to do. For example if you don’t agree with tobacco but you are asked to act for a tobacco company. This is a matter not of law or regulation, but of organisational policy, which you can seek to influence by discussion, but over which only the decision makers in that organisation have ultimate control. This is the reality of business. Notwithstanding that businesses would be wise to have channels through which such policies can be openly discussed.

“Regarding practical steps that can be taken to support the agency of junior lawyers, I recommend two: (1) Every legal organisation or legal team should be required by the regulator to keep a conflicts log, to record regulatory conflicts or potential conflicts and how they are mitigated. This would bring to normality discussion around this topic and its importance, as well as having the potential to bring greater collective focus and consideration to specific scenarios. (2) Expressly referencing the regulatory duties of each lawyer, including their duty of independence, within their employment contract. This would strengthen confidence in the basis for speaking out, as well as increasing clarity on the expectation to do so, including within the employer organisation. There is a template employment contract addendum here.”