07 Jun 2022

IBA launches major project examining lawyers' role as ethical gatekeepers

Project announced following ‘sustained charges levied against the profession’ relating to perceived greenwashing and facilitation of illicit financial activity

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The International Bar Association has launched a major project examining the role of lawyers as ethical gatekeepers within wider society and to help clarify the ethical responsibilities and obligations of lawyers when providing legal services. 

The Gatekeepers Project was announced following what the IBA called ‘existing and sustained charges levied against the profession,’ arising not just from the Russian-Ukraine war, but also in relation to perceived facilitation of illicit financial activity, greenwashing of climate change activity and frustration of the UN’s sustainable development goals.  

The project, led by the IBA’s legal policy and research unit, will work with groups including bar associations, law societies, law firms and lawyers. The IBA aims to publish guidance on how to navigate ethical tripwires including through potential updates to the its influential International Principles on Conduct of the Legal Profession.

IBA president Sternford Moyo, who is known for his work on rule of law issues, said the IBA has been increasingly proactive and visible in its efforts to fight corruption and promote core standards over the past few decades.

“We are leading the charge in the global response to one of the greatest challenges facing the profession today – namely, how to respond to the ethical challenges and criticisms that lawyers face in relation to our profession’s core principles and the provision of legal services,” he said. 

That included accusations that lawyers were hiding behind professional conduct rules, such as client confidentiality, the IBA said, and whether lawyers should still receive the benefit of the doubt in providing independent legal advice, or were being seen to act as proxies for corporate interests. 

Despite rebuttals through the IBA’s work on lawyer-client confidentiality, there was, said Moyo, “a real danger that the vital importance of these principles will be eroded and gradually forgotten [by] wider society,” with “disastrous consequences”. 

Sara Carnegie, the project’s leader and herself a former prosecutor, 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.”

Law Society of England and Wales president Stephanie Boyce told the Post this was a “timely initiative, which reflected the concerns of legal professional bodies the world over” and mirrored the Society’s own work. 

She said: “Lawyers often must weigh up the competing and sometimes conflicting duties of acting in the best interests of clients, for the proper administration of justice and in the public interest.” 

As a founder member of the IBA, the Society will contribute to the project, which it said would ‘help clarify the debate and develop international dialogue to ensure lawyers maintain the trust that is essential for the administration of justice.’

Regulatory lawyer Iain Miller, of Kingsley Napley, commented that the IBA project allowed all sides to articulate their views and find common ground. 

“There are some quite important issues for lawyers in providing legal advice, in maintaining the rule of law, which means that we sometimes act for the unattractive and that needs to be understood and articulated more clearly,” he said.  

Professor Richard Moorhead, of the University of Exeter, also welcomed the project, the success of which he said would depend on who participated and the direction of travel, while acknowledging that the questions raised were being asked about lawyers, who needed to grapple with them just as politicians, regulators and the courts were. 

He added that one important question left open, however, was whether the project was “trying to change the minds of law firms or the minds of their critics”.

Michael Evans, of Byfield Consultancy, noted that the legal profession is under such high levels of public scrutiny precisely because of its importance to wider society and the global economy.

“The debate about lawyers as ethical gatekeepers is happening, whether the industry wants it or not. There are real and perceived difficulties at the nexus point between professional, business and personal ethics and weighing up reputational issues, commercial concerns and professional obligations.”

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