For lawyers, ethics (broadly speaking) involves balancing (1) the public interest in the administration of justice and social welfare, (2) the client’s interest and (3) their own interests and the employing law firm’s interests.
This raises interesting questions. For example, should a lawyer be able to legally abuse uncertainties in the law to their client’s advantage to the burden of society? Does this make a difference whether this is a corporate or high street lawyer, bearing in mind the type of clients they have and their roles within the economy?
There is evidence to suggest that lawyers, regardless of the type of firm they work for, are arguably unethical in certain respects.
Firstly, law students (whether they become high street lawyers or corporate lawyers) are trained throughout their degree to identify and exploit uncertainties in the law with little thought being given to the wider social impact; problem questions are poignant examples of this.
Secondly, the introduction of Outcomes Focussed Regulation (OFR) by the SRA constitutes a shift away from prescriptive rules and places the onus of judgement onto lawyers to provide the best service for their clients as they see fit.
Therefore, where there is conflict of interest between society, the client and the law firm, a hierarchy of preference will emerge. As law firms are ultimately businesses, the interests of the law firm and client will almost certainly prevail over the interests of society.
Despite this, there is also some empirical evidence suggesting that corporate lawyers in large firms are more likely to service clients at the cost of public interest in the administration of justice and social welfare than high street lawyers.
Firstly, the working environment of large corporate law firms has a tendency to facilitate such unethical practices more than the working environment of a high street firm. There is a predisposition among trainees to please partners and supervisors to qualify, and thereafter to continue to impress and progress. This is a feature of large corporate firms more so than high street firms because of the higher number of promotion opportunities that arise in the former.
Therefore, if partners are not considering the impact of their decisions on society, those below them are unlikely to question this in order to be seen to conform to partner ideals and thus progress.
In addition to the working environment, the consequential impact of disciplinary enforcement is different between high street firms and large corporate firms.
In 2012-13, 81 solicitors were required to pay disciplinary fines, ranging from £500 to £40,000. The nominal effect of these fines is greater on high street lawyers, whose salaries are considerably less. Thus, punishment for unethical behaviour will likely have less impact on corporate lawyers to act within SRA guidelines.
Despite the above, we would argue that corporate lawyers in large firms of solicitors should more consciously apply ethical values than high street lawyers given the potential impact of their advice on society. Lawyers had a key role in constructing the toxic financial instruments which were a part of the financial crisis. Had the ethics of lawyers in balancing society’s interests been more robustly regulated in 2008, the economy might have avoided the crisis that it has suffered for the past six years, if not in full, at least in part.
We recognise that law firms are ultimately businesses in this modern age and will therefore want to pursue survival and commercial interests, but this should not be pursued at a considerable cost to society.
Katie Brown, Rachel Pavey and Natasha Rani Bains are students at Birmingham Law School
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