Chair of the Bar Nick Vineall KC reflects on whether, and if so when, lawyers should be excluding clients from access to legal services.
Just back from the International Bar Association (IBA) Meeting in Helsinki (it’s a hard life being Chair of the Bar). There was some stimulating discussion of the ideas involved in the rather diffuse expression “lawyers as gatekeepers”. This was prompted by the IBA’s ongoing project “to examine the professional role of lawyers as ethical gatekeepers within wider society and to help clarify the ethical responsibilities and obligations of lawyers when providing legal services”.
So what does it mean?
All lawyers have important duties which mean that we may not, and do not, simply do whatever our clients ask or tell us to do. Conduct rules invariably prevent lawyers from assisting their clients to commit criminal offences. At the England and Wales Bar our primary duty is to the court, not to our client: so, for instance, we cannot advance a positive case that we know to be untrue, we cannot continue to act for a client who refuses to meet their disclosure obligations, we cannot advance an allegation of fraud unless there is credible evidence to support it, and we may not make legal submissions unless they are properly arguable. And at the Bar we are subject to the cab rank rule, so that we are not allowed to decline properly remunerated instructions within our expertise because of any view we have formed about the client or the client’s cause.
And in many jurisdictions domestic law imposes further constraints: for instance, money laundering legislation, suspicious activity reporting regimes, and sanctions regimes which prevent the provision of particular services to clients, or prevent lawyers being paid if they do provide those services. These additional constraints are imposed by legislators or governments and are subject to whatever domestic democratic or other systems are in place.
Lawful but awful?
But the lawyers as gatekeepers agenda seeks to go further and is sometimes characterised as asking what lawyers should do in relation to clients whose conduct is “lawful but awful”. But proponents of that view seem to me to have difficulty in defining the yardstick by which “awfulness” is to be tested.
The IBA has published Principles on Conduct for the Legal Profession and IBA Principle 5 says:
A lawyer shall treat client interests as paramount, subject always to there being no conflict with the lawyer’s duties to the court and the interests of justice, to observe the law, and to maintain ethical standards.
That wisely eschews any mention of a broad public interest test or moral judgment-making, and captures an important concept elegantly.
A public interest proposal
What is more difficult is what further guidance - if any - is appropriate. Should there be some sort of public interest test? Or should there be some element of moral judgments made about the client or their cause? Four points seem important to me.
First, the terminology of “gatekeeper” is to say the least unfortunate. Gatekeepers close gates to keep people out. And in order to decide when to close the gate, gatekeepers need to form judgments on those they exclude.
Already this should be sounding warning bells. Do we want to close the access to justice gate? And should we be forming moral views on our clients? I think not: as barristers our duty to our clients is to advise them as to the law and then (whether or not they take our advice) to represent them within the professional constraints I have described.
Second, it is important to remember that lawyers do a wide range of different types of work including assisting with drafting contracts, setting up corporate or trust structures (which may be entirely non-contentious), giving advice on contentious and non-contentious matters, and providing representation in contentious matters. I suggest that the public interest in terms of restricting access to lawyers’ services may operate differently in relation to contentious and non-contentious work.
At the Bar we do almost all contentious work, for people who need to protect or to enforce what they consider their legal rights to be. In deciding whether it is right for lawyers to refuse to provide services there is surely a difference between declining to set up an offshore trust for someone and declining to represent someone in contentious proceedings. It is the distinction between precluding access to certain legal services and precluding access to justice.
Third, the difficulty with guidance that applies to everyone (the IBA calls itself ‘The Global Voice of the Legal Profession’) is that different lawyers in different countries, and sometimes even within the same country, operate under different regulatory regimes, under different domestic laws, and under subtly different conduct rules.
In the UK most advisory and drafting work is not a reserved activity, so anyone can do it: even if every solicitor and barrister says they will not draft your offshore trust, that does not prevent you going somewhere else to get your offshore trust drafted (although it is hardly in the public interest that it is then likely to be drafted by someone – or something in the case of artificial intelligence – who is not subject to conduct rules and not subject to regulation).
Contrast representation in court, which is a reserved activity. If barristers and solicitors were to refuse to represent you in court, you would have nowhere else to go. (And it is interesting to reflect on the fact that the Bar’s cab rank rule developed at a time when the Bar had a monopoly on rights of audience.)
Looking internationally, the position is diverse. Some lawyers operate under cab rank obligations, but many do not. Some lawyers operate under regimes where there is the concept of privilege, but many where there is strong protection for client confidentiality but no concept of privilege. All these differences pose challenges for catch-all, catch-everybody guidance, and it is critically important to try to ensure that whatever is said works equally well across these diverse professional arrangements. That is the attraction of the very carefully and precisely expressed wording of Principle 5.
Who would decide where the public interest lies? Whose morality?
Fourthly and most fundamentally, imposing any sort of a requirement on lawyers to consider the wider public interest, or to pass moral judgments on clients before deciding whether to act would be deeply problematic.
If it were a public interest approach, who would be the arbiter of the public interest? Who is to decide, in relation to an activity that is lawful, whether it is in the public interest? If the decision is left to us as lawyers, are we to ask our government? In which case – today’s government, yesterday’s, or tomorrow’s? Do we find out by reading newspapers or magazines – in which case, which ones? The Economist or the New Statesman? The Guardian or the Telegraph?
As lawyers we know only too well that the public interest is “a very unruly horse and when once you get astride it you never know where it will carry you.” (Borough J in Richardson v Mellish – almost 200 years ago).
Similar difficulties arise if, instead of a public interest test, a lawyer were required to make a moral judgment about the client or their cause. For us as barristers, where the cab rank rule applies we must accept instructions “irrespective of any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence, of the client”.
But even if were permitted to pass such judgments, how would we do it? Where do we look, and whom do we ask, if we are uncertain whether the client’s moral turpitude is so great as to justify declining to give them legal assistance?
Considering the position of the many legal professionals who are not bound by a cab rank obligation; is it either fair to the client, or desirable for the lawyer, to be obliged to consider the client’s moral position as well as the client’s legal position – and to deny them representation unless they pass some sort of morals test? I rather doubt it.
I recognise that lawyers who are not subject to cab rank types of obligation are never obliged to take any client, and are generally free to decline services subject only to their statutory duties not to discriminate. But that sort of permissive approach – that you may decline a client because you don’t like them or their position– is not the same as a framework in which there were some sort of obligation to pass moral judgments.
Access to justice is always in the public interest
One element of public interest as to which there is almost complete agreement amongst lawyers is that anything that promotes access to justice is desirable and anything which restrains it is not.
We need to hold fast to the fact that access to justice is an important touchstone. At least for contentious work, we should be very, very cautious indeed about subscribing to the ‘lawyers as gatekeepers’ agenda. At least for contentious work, we should firmly reject any suggestion that we should be imposing a public interest test on clients who wish us to advise and represent them. And we should consider very carefully indeed any suggestion that lawyers should ever be required to pass moral judgments on those who seek to defend or vindicate their legal position.