In July 1938 The Law Society invited the National Socialist Lawyer’s Association of Germany (National Sozialistische Rechtswahrer Bund) for a party in London to meet the leading English lawyers of the day. The trip was an apparent success because the president of the Law Society was invited back to Germany in 1939, before war intervened.
Shortly after the visit, from late 1938 to spring 1939, the City of London Solicitors’ Company lobbied the Law Society to ease restrictions on German and Austrian lawyers wishing to qualify as articled clerks. This was primarily to help Jewish lawyers in Nazi-controlled jurisdictions escape to the UK.
But the Law Society could see no reason to go beyond the letter of the law with regard to qualifying and said it was “not desirable… to deal with the special circumstances of German and Austrian lawyers”. We all know what happened next to the lawyers with the “special circumstances”.
What this story shows is that the English legal profession had no clear position on moral questions and instead stuck to the rules of the day. Fifty years later, there are still no clear guidelines on human rights and ethical obligations among lawyers beyond criminal matters. Yet today, lawyers in firms specialising in cross-border transactional law are frequently asked to advise on deals that raise moral questions.
For example, a City lawyer might be invited to advise on a deal for a foreign dictatorship accused of serious human rights abuses. Or they might be asked to advise on the building of a dam that has attracted condemnation as an environmental and human rights disaster.
Other than the rules relating to the breaking of criminal laws, there is nothing in the Law Society rules on professional conduct to assist a lawyer who finds their potential client abhorrent or the client’s involvement in a deal abhorrent.
If a lawyer did turn to the Law Society’s professional code of conduct for solicitors — an exhaustive tome with substantial advice on how to avoid involvement in money laundering — there is not a word on the subject of handling a client linked directly, or indirectly, to human rights abuses.
Nor, perhaps more importantly, is there likely to be any official policy at their firm.
This is despite the fact that law firms are often on the front line for contact with potential human rights abusers, such as despotic regimes in developing countries or multinational companies with dubious policies towards the locals who live next to and are affected by their massive projects. Not all lawyers are happy about this situation.
“We always remain political and moral human beings. Moral scruples should be looked at,” says Hamish Sandison, non-executive chairman of Bird & Bird.
Tony Willis, now semi-retired after 26 years as a partner at Clifford Chance, agrees. Willis, who is chairman of the Solicitors’ Pro Bono Group, is reluctant to have the Law Society get involved in issuing moral guidelines for law firms, arguing that it is the firms themselves that need to consider their positions.
“Large firms have moved significantly on choosing clients, but they ought to have an ethical/moral component,” he says.
One of the City firms with the most developed policy on ethical issues is Freshfields Bruckhaus Deringer, which has specific written guidance on, as one partner calls it, “tricky client situations”.
The senior Freshfields partner says his partner manual stresses that: “The firm’s reputation for integrity is of the highest value.” Its manual also states that even if a client is not immediately suspected of being criminal, if they are not fully disclosing financial information, then the practice head should be notified.
These guidelines help to stamp out clients attempting tax evasion, and although proactive, do not tackle moral issues and their possible detrimental effect on a firm’s valued reputation for integrity.
Lovells is another top-10 City firm to have a procedure for dealing with worries about a client. Partners are able to discuss the issue with their practice head, although there is no requirement that they do so. One senior Lovells partner says moral worries about a client are not an issue he expects to encounter within the firm.
“It is not part of our responsibility to judge the client,” he says, “and as far as I know we have never turned away a client on ethical/moral grounds.”
Slaughter and May has a policy of allowing all partners to comment on the taking on of new clients. If there are any serious worries, then these will be investigated by the senior partner. But again, on specific moral issues, there is no official line.
“We do not have a subdivided procedure [for taking on new clients]. There are always a range of factors,” one senior Slaughters partner says.
In the US, the position appears to be little different. New York firm Dewey Ballantine has won itself a reputation for being one of the only major corporate firms to have a moral policy on clients, based on the fact that the firm will not take on tobacco clients and one of its former chairmen is a high-profile anti-smoking campaigner.
But this is a myth, as Everett Jassy, the firm’s current chairman, says: “Our position [of not acting for tobacco companies] is not because of a moral stance.” Jassy explains that the firm represents a large group of clients suing the tobacco industry and it has not advised big tobacco companies for many years. It is simply a conflict issue.
However, Jassy adds that the firm would seriously consider dropping a client if “taking on the client caused anguish to the partners”. Has the firm ever done this? No, Jassy says, and points out that his firm would also not abandon a client once it has been taken on.
One reason for there being little interest among firms for developing an ethical policy on clients is that firm management, certainly in the City, believe there is no problem.
The City line is that lawyers are advisers and therefore bear no responsibility for the actions of their clients or the people those clients do business with.
As one Lovells partner puts it: “Our job is to advise the client on not breaking the law, but we cannot get into the morality of what our clients do.”
Leading human rights lawyer Geoffrey Bindman, of Bindman & Partners, disagrees. “If the client acts in a way that violates human rights and the lawyer facilitates those activities, then the lawyer is violating the ethical standards they should have,” he argues.
That belief is fundamental to changing a law firm’s perception of their accountability for the clients’ actions, even if the client is not doing anything overtly criminal.
The list of countries, such as Burma, and projects such as the Ilisu Dam in Turkey, where there are serious human rights issues at stake, is a long one.
Even if lawyers at City firms feel troubled by their involvement in these particular cases they may find little support at the top for change. When partners in the management of Freshfields, Lovells and Slaughters were asked if they would change their current guidelines there was a resolute ‘no’, followed by a refusal to accept any ethical connection to the human rights problems of their clients.
The senior Lovells source says the firm would advise the Burmese Government because it is a “legal government”. The Freshfields senior source admits it is “a cop out” to say morality is only the client’s matter. But he insists things cannot change because a lawyer is just “a hired gun”.
For now there seems little likelihood that their stance will soften. But pressure, both externally and internally from staff concerned at who their firm is acting for, might change this in the long run. What is clear is that in a world of media scrutiny and increasingly sophisticated protest groups, the days of anonymity for lawyers could be over.
Bird & Bird’s Sandison says that so far, law firms have escaped the scrutiny of the public eye primarily because lawyers are the “least visible part of a project”.
“We are not in the public eye, but this could change. I would not be surprised if law firms came under fire [in the future],” Sandison says.
One thing is for sure, making law firms publicly face this issue is not going to be easy. As one Baker & McKenzie source puts it: “It is not an issue we want to discuss externally. It is a can of worms.”