Bar Council chair challenges flagship IBA 'Gatekeeper' project

Nick Vineall KC is “very uncomfortable” with draft IBA suggestions to enhance legal professional obligations with an ethics test, calling it “a dangerous mantra”
Nick Vineall delivering his speech in London

The Bar Council of England & Wales chair, Nick Vineall KC

The Bar Council of England & Wales chair, Nick Vineall KC, has heavily criticised an ongoing International Bar Association (IBA) project aiming to clarify lawyers’ ethical responsibilities. 

The Gatekeeper Project, which assesses the professional role of lawyers as ethical gatekeepers within broader society, was launched last year, led by Sara Carnegie of the IBA’s research and policy planning unit. 

At launch, Carnegie said: “We want to undertake constructive dialogue and find solutions. We hope that all parties can reach mutually respectful positions with informed understanding of what is at stake.” 

The project aims to rebut criticisms of lawyers whose clients have supported Russia’s illegal invasion of Ukraine and challenge “existing and sustained charges levied against the profession” over facilitating illicit financial activity and enabling climate change. 

The project was discussed at the IBA’s annual meeting in Miami, and at the Bar Issues Commission and mid-year meetings in Helsinki last week. One key issue is whether lawyers should continue not to be associated with their clients' interests, a rule inherent in providing independent legal advice to a client. 

That principle is also a cornerstone of the cab rank rule that Vineall made his mission to defend on becoming chair, having previously vigorously defended the right of barristers to act for sanctioned Russian clients before becoming chair and subsequently on taking office.  

The cab rank rule has been discussed extensively – not always favourably – in the legal and mainstream media, following the refusal of a small number of barristers to abide by its terms as part of a protest against lawyers facilitating climate change – the same activity which gave rise to the Gatekeeper Project itself.  

Vineall said lawyers should not assist in the commission of unlawful activity. However, he added: “I am very uncomfortable with the IBA’s suggestion that lawyers ought to be applying some sort of wider public interest test before we decide who to act for, at any rate, in contentious matters.

“As lawyers, we are there to advise and represent our clients, not to judge,” he added.  

In a blog, since revised, on the Bar Council website, Vineall referred to current draft proposals to reform the IBA’s principles in this area, focusing in particular on whether lawyers should safeguard the public interest over that of the interests of individual clients, should conflicts arise between the two.   

Referring to concerns at the Helsinki meeting, raised by the leaders of some of Europe’s most significant bar associations, about the project, he said any requirement involving the wider public interest before acting was “deeply problematic”. 

Vineall said the terminology of “gatekeeper” was “to say the least unfortunate” owing to impacts on access to justice, arguing that the agenda “is sometimes characterised as asking what lawyers should do about 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.” 

He added: “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.  

“We should consider very carefully any suggestion that lawyers should ever be required to pass moral judgments on those who seek to defend or vindicate their legal position.”  

In response, an IBA spokesperson said it had no comment, noting that Vineall’s original posts had contained errors, which he had agreed to amend and replace with new text. It is understood the errors relate to the status of a previous travelling draft of the revised IBA principles quoted in the blog which was later amended.

Professor Richard Moorhead, who specialises in professional legal ethics at the University of Exeter, said: “Most find the Bar’s navel-gazing about the cab rank rule a bit parochial given the state of the legal system and the horrendous inequalities it ignores.

“Moreover, the really important questions facing the professions are not about who gets to choose their lawyer, but about the conduct of lawyers. It’s worth bearing in mind some very senior members of the Bar face substantial scrutiny in the Post Office Inquiry, for instance.” 

Moorhead added: “Independence is about much more than a rule and the rhetoric it inspires.” 

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