Lawyers are instruments of their clients.1 They are merely a hired gun, acting on behalf of their client and doing whatever it takes to win, regardless of the ethical and moral issues they may face. To understand the ethical issues faced by solicitors it is important to first identify what legal ethics actually are. Boon defines Ethics as “a branch of philosophy concerned with how people make good and right decisions”2. ” A lawyer behaving ethically will intentionally choose between the major competing legal ethical principles and rules and adopt a bona fide position and course of action”3 Throughout this essay we will investigate the ethical issues a solicitor may face whilst following the guidelines of the SRA Code of Conduct.
To understand better the importance that ethics plays in a lawyers’ day to day duties we first need to understand what ethical issues a lawyer may face. Evans4 identifies some key areas among the most common and challenging that a lawyer may have to respond to appropriately; Firstly, a conflict of interest, between clients, both current and former, and between a lawyer and his client.
Under the SRA Code of conduct Principle 45, it is a duty of the solicitor to act in the best interest of each client they serve. This is also covered by the principle of ‘partisanship’ whereby a lawyers’ duties are to the client and nobody else. 6 Therefore, if a conflict of interest does occur, how does the lawyer go about acting in the best interest for each party? The lawyer may hold information from one party that could prove vital to the other party winning the case that he would be unable to disclose, but by not disclosing this information how can the lawyer be acting in the best interest of the client? This is one ethical issue that a lawyer may face on a day to day basis.
Furthermore, if the clients request goes against the lawyer’s own moral stance, another conflict of interest may occur. A client will come to a solicitor if they have a problem in their life that needs overcoming, and it is expected that the solicitor will do what it takes to help them overcome that problem. This often poses ethical dilemmas for a solicitor, for example acting on behalf of someone who they believe or know to be guilty. This is where the principle of ‘neutrality’ occurs where a lawyer shouldn’t take into account anything that conflicts with the clients’ best interests.7
One key Principle of the Code of Conduct is not allowing your independence to be compromised.8 As identified by Ruparel9, solicitors potentially be faced by an ethical issue will present the client the options to the legal matter and let them make the decision on how to proceed, thus removing any ethical repercussions for the lawyer. They are therefore just acting under Principle 4 and acting in the best interest of the client and supports the suggestion by Boon that the lawyer is acting as a hired gun.
This is further supported by Evans relating to the Mcabe case, when upon completion of the case the Chief executive partner of Clayton went as far to say that “morality has no place in advice given to clients, provided everything done is within ethical standards”10. The advice given to the client should not take into account any ethical or moral considerations of the solicitor, but only the options that are available to the client, which they can decide themselves on the best option for them. By providing this information to the client the solicitor is not compromising their independence, but still providing a proper standard of service to the client.
This is further supported by Rhodes 11 who identified that “It is not the lawyers’ role to interpret conflicting requirements for justice and morality, but to defend an individual”, as long as the lawyer is adhering to the guidelines set out by the SRA, they cannot be held accountable for the ends achieved.
A lawyer would argue that under the principles of neutrality and partisanship they are only ever acting in the best interest of the client and do not need to take into account their own moral opinions. They may well be doing whatever the client wishes, and the ethical duties of the lawyer allow them to do so, provided what they are doing is legal.
Herring12 supports this under his definition of non-accountability, that lawyers aren’t responsible for the decisions of their clients, and must act on behalf of the clients so far as the law and professional ethics allow them to do. This principle of non-accountability leads into Evans’ second area of challenge to a lawyer of client over-dependence, preferring clients’ interests to arguably more important moral and legal obligations to courts and even the community as a whole. 13
This can be particularly prominent in larger corporate firms where the majority of a firms’ business may occur from one large client, making the expectations on a lawyer greater. A lawyer may well be put in the position of a hired gun, as the client would expect them to do whatever it takes to win. The lawyer may well act on this as they are required to provide each client a proper standard of service under Principle 5, even though they may well be facing an ethical dilemma, as well as perhaps being pressured by the law firm that the solicitor works within, who may also want the solicitor to ensure they do what it takes to win the case as they would not want to potentially risk losing the client.
This however may contrast with the lawyers’ duty to the courts, which may conflict with the duty a lawyer owes to their client. Objective 5.6 of the SRA14 states you must comply with your duties to the court. In Bolton V Law Society15, the solicitor was informed by the client before going into court that they had not provided their correct name to the court, to avoid having previous charges against them from being brought up. Bolton did not want to deceive the court, but also had to act in the best interests of the client, so avoided referring to the client by name. Upon investigation, he was found guilty of misleading the court, as if a lawyer knows the information being presented to the court is false, then he should’ve sought the client’s permission to ensure the court was not misled or ceased to act for the client16
This follows in to a third area of concern for a lawyer identified by Evans in whistle-blowing, ‘When should silence about a clients plans turn into active reporting?17’ A lawyer has a duty of confidentiality to their client under the law of confidentiality, however there must be scenarios whereby the lawyer may feel obliged to divulge information. In the case of Bolton, he should have informed the court of the clients attempt to deceive the court. As the SRA Code of Conduct states, you must comply with your duties to the court. However, if he had done so or had he refused to act for the client then it could be argued that he was going against acting in the best interest of his client.
The SRA code of conduct states that you must gain consent of the client to disclose information18, but in this scenario, that could have potentially affected the type of sentence the defendant would have received, conflicting with acting in the best interest of each client. If you are required to actively report on a client, then surely you cannot be acting in the best interest of the client. Bolton quite clearly put himself in the position of a ‘hired gun’ aiming for the best possible outcome for his client.
Parker19 identifies that “it is not unreasonable to regard lawyers as having a degree of moral accountability”. Although it is a lawyers’ responsibility to act in the best interests of the client, there must be some moral accountability to ensure that the lawyer is abiding by his duties to the court. A lawyer must still be able to make the ethical decision on whether their duty to the client is more important than what needs to be divulged to the court.
Ruparel20 supports this by suggesting that there is a significant difference between complying with rules and behaving ethically. The SRA Code of Conduct sets out the guidelines a solicitor must follow. These guidelines are what a solicitor should first consider before considering their own ethical values21. As suggested by Boon, this could mean that a solicitor may be pursuing their own immoral ends, purely by following these guidelines when acting for each client.
As discussed previously, lawyer must comply with their duties to the court. When a client has admitted guilt to the lawyer in confidentiality, the lawyer faces an ethical challenge of how to best represent the client, they cannot lie to the court, but they must construe the facts they have in a way that best suits the client.
It could be argued that it is easier for a lawyer to act in a criminal case than in a civil case, as the burden of proof lays on the prosecution in proving guilt beyond all reasonable doubt. A lawyer may not necessarily have to deceive the court, but just pick apart the prosecutor’s case. For example, if a victim of a crime mistakenly says the crime happened at 2pm, when the defendant has told the lawyer it occurred at 5pm a lawyer may then be able to provide an alibi for the defendant at the time the victim stated the crime occurred. The lawyer is not deceiving the court directly, as the defendant did actually have an alibi for the time suggested and it would be on the prosecution to prove beyond all reasonable doubt the defendant’s guilt. As long as the lawyer doesn’t say they did not commit the crime, then it can be argued they are acting in the best interests of the client, whilst not misleading the court.
Overall, I would agree with Boons statement that a lawyer is placed in the position of a ‘hired gun’ as by not representing the client as best they can they could be seen as going against the SRA Code of Conduct. The principles of neutrality and partisanship support the lawyer in representing anything brought to them, by providing a foundation of ethical reasoning to taking on a clients’ commands. This does not mean they are going against their independence, as there are still moral and ethical decisions that need to be made to act in the best interest of the client.
1 W Bradley Wendel, Ethics and Law: An Introduction (Cambridge University Press, New York 2014) 7
2 A Boon, The Ethics and Conduct of Lawyers in England and Wales (Hart Publishing, 3rd Edition, 2014) 3
3 A Evans, Assessing Lawyers Ethics, A Practitioners Guide (Cambridge University Press, New York 2011) 5
4 A Evans, (n 3) 216
5 Solicitors Regulation Authority, SRA Code of Conduct and Accounts Rules (Law Society, 2nd Edition, 2016) 9
6 Bradley Wendel (n 1)) 44
7 Bradley Wendel (n 1) 44
8 Solicitors Regulation Authority, (n 5) 9
9 M Ruparel and R Burnham, ‘How to Be an Ethical Solicitor: Putting the principles into practice'(Bath Publishing, 2017) 29
10 Evans (n 1) 12
11 DL Rhode, Ethics in Practice: Lawyers Roles, Responsibilities and Regulation’ (OUP, New York, 2000) 68
12 J Herring, Legal Ethics, (2nd Ed Oxford University Press, 2017) 128
13 A Evans (n 3) 216
14 Solicitors Regulation Authority (n 3) 33
15 Bolton v Law Society 1994 1 WLR 512
16 Herring (n 7) 167.
17 A Evans (n 3) 216
18 Solicitors Regulation Authority (n 3) 34
19 S Parker, ‘Introduction & CH4: change, Responsibility and the legal profession’ in Parker and Sampford, Legal Ethics and Legal Practice: Contemporary Issues (Clarendon Press, Oxford, 1995), pp 73-86
20 Ruparel (n 4)) 1
21 Ruparel (n 4) 25