Are Corporate Lawyers Ethically Apathetic?
Earlier in this week, you heard one of Steven’s interviewees talk about the ‘ethical lawyer’ in the following terms:
|Steven||How would you describe an ethical lawyer?|
|Lawyer||There are going to be levels: you’ve got someone who does the bare minimum and someone who is extremely ethical and pushes ethics all the way. I’m assuming you want something which is in the middle of all of that. An ethical lawyer would be – no actually, maybe I would think of someone who was more into pushing the ethics of the deal and being someone who did worry about that sort of impact on the country or the end result, and actually looked into it. Because I guess I just don’t look into it; I just take the deal as face value, has to be someone else has thought about it.|
|Steven||So, does that mean you’re an unethical lawyer? Or you’re just not a strongly ethical lawyer?|
|Lawyer||It depends. I wouldn’t say I was unethical. I just don’t push ethics on things. It’s a difficult one, isn’t it?|
Taking the deal at ‘face value’, being the lawyer-technician who uses the law to effect his client’s wishes, and not ‘pushing’ ethics were common themes from the interviews. Given this, Steven and his co-author Emma Oakley suggest in their writing that there is an apathy – a lack of concern or interest – about ethics on the part of corporate lawyers. This apathy stemmed from various sources. It was linked to assumptions about the sorts of clients that large law firms are willing or not willing to act for, and assumptions about the ‘right sort of people’ the firm hired and retained; it was linked to strong notions of role morality (that we looked at in Week 2); and it was founded on the classic legal ethics ‘standard conception’ principles of neutrality and non-accountability (that we also covered in Week 2).
The corporate lawyers who took part in the interviews were almost exclusively adamant that the sort of work they do does not present ethical dilemmas. This must be right, to an extent. Corporate lawyers in large firms are almost certainly not faced, on a daily basis, with clear and bright line instances of ethically questionable conduct. As the legal ethicist David Luban says,
‘By and large lawyers do not go frantically through life encountering one moral dilemma after another like challenges in a video game.’
David Luban, ‘How Must a Lawyer Be? A Response to Woolley and Wendel’ (2010) 23 Georgetown Journal of Legal Ethics 1101
However, subtle, dynamic and challenging questions of ethics are present in much of the work undertaken by these lawyers: issues of independence and honesty; work where the law is uncertain or grey (and the lawyer uses that uncertainty to their client’s advantage); thinking about (and advising on) the consequences of client decision-making; conduct between lawyers in the same firm and with those on the opposite side of the table, etc. These are all relevant.
There is an obvious disconnect between how the Solicitors Regulation Authority, as regulator, views the principles on which corporate solicitors act (i.e. as we saw in Week 2, the SRA Handbook lists many concerns, with the priority going to ‘public interest’’ in an event of conflict between two or more Handbook principles) and how corporate solicitors in practice view their roles (i.e. an almost exclusively client-centred, client-first approach).
If what we have are lawyers who are apathetic about the ethical issues posed by their own practices and by their own clients, and if law firms are not routinely engaging in training and dialogues on the ethics of lawyering in large firms, then there is a risk that those who advise the world’s most powerful organisations are blind to the potential for ethical failures. This, Steven and Emma argue, requires much more than apathy. There is space for the modern day corporate lawyer to engage in a process of moral dialogue with their clients, while still doing what the client is seeking to do within the bounds of the law. As such, there is power and potential in corporate lawyers acting as public service intermediaries, acting as checks, or wise counsellors, on decision-making by their corporate clients.
For those wishing to read more, you can download, free of charge, the article Steven and his co-author Emma Oakley have written on the ethics of corporate finance lawyers in large law firms here:
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