Just 11% of leading UK lawyers said ethics should be a major consideration in accepting new clients in the latest Legal Week/EJ Legal Big Question survey. The majority (66.5%) said law firms should consider instructions from controversial regimes or corporate clients on a case-by-case basis.
A sizeable number argued that the right to legal advice outweighed firms’ ability to judge which clients they act for. A small percentage (5.5%) argued that firms should never decline mandates on ethical grounds, while a further 17% said firms should only consider declining such mandates in extreme circumstances.
The results come despite fears from a majority (86%) of top lawyers that acting for controversial clients can damage a law firm’s reputation. Only 2% thought advising controversial clients made no difference to a firm’s reputation.
Although the figures show little support for turning away mandates, the results do a show a growing acceptance of corporate social responsibility (CSR) initiatives in law firms. A Big Question survey in November 2006 found 23% were against firms having a CSR policy, this figure has dropped to 3% in the latest survey.
Pinsent Masons senior partner Chris Mullen said: “Acting for controversial clients can do damage and could adversely affect the recruitment of young lawyers. Unless it is an extreme situation there will always be different opinions, with some clients against a situation and others not bothered by it. We review situations on a case-by-case basis. There are some infrastructure projects which require deploying lawyers to countries with questionable regimes. These situations would go up to our board which would produce a report, not only on the ethical risks, but on issues of health and safety for our staff.”
SJ Berwin managing partner Ralph Cohen (pictured left) said that firms should not feel obligated to give advice. He said: “While some might argue that everyone is entitled to representation, in reality law firms are partnerships and not public bodies, and can therefore choose who to represent, especially if there are reputational concerns.”
The survey drew responses from 197 leading lawyers. One respondent said: “Everyone is entitled to proper legal advice, whether they like that advice or not. There is a fine line to be drawn between advising and adopting your client’s position, which is unacceptable.”
Although 75% of lawyers believe CSR programmes are positive for firms, more than half of respondents believe firms struggle to live up to their stated policies. Forty-nine percent said firms comply with their own CSR policies ‘to a limited extent’, while another 8% labelled such policies as a ‘marketing ploy’.
Addleshaw Goddard litigation partner Monica Burch (pictured right) said: “Most firms try hard with their CSR programmes and it is easy for people to be cynical about these issues. But it would be nice to think some lawyers did get into this profession for idealistic reasons.”
What partners said:
“We are lawyers and everyone has a right to legal representation. We are neither a branch of social services nor the Inquisition. Hence this is a factor that may impact on individuals' own consciences, but is not a matter for the profession as a whole. We are forced to waste far too much time on matters such as ‘know your client’ by a nanny government and ought to be allowed to get on with providing services — not acting as police for nanny.” John Cooper, partner, Lovells
“A balance has to be struck, while firms should encourage participation in corporate social responsibility (CSR) activities, it should always remain voluntary. While a firm may want to recognise a significant contribution, it should not penalise employees who, for a variety of reasons, may not have the time or inclination to participate in a firm's CSR initiatives.”
“A decision to not act for controversial clients is no different to a decision to act primarily either for or against a particular type of client (e.g. insurers). It should be a decision made having regard to the firm's stated CSR policy. A firm with a ‘conservative’ CSR policy would be expected to decline to act for such clients. To do otherwise would undermine the basic ethical principles of such a policy by positively assisting those who do not espouse similar principles. Those firms willing to act for such clients will normally fall into two camps, either those who eschew CSR altogether or those who have a ‘radical’ CSR policy. A radical CSR policy in this context means a policy that is truly libertarian in its approach to social responsibility and genuinely adheres to a belief in the fundamental principle that everybody is entitled to representation.” Ed Weeks, partner, Cripps Harries Hall
Cynics
“I believe that many of these programmes are being put in place for somewhat cynical motives. Generally as long as clients are not doing anything illegal, it is not the place for law firms to be making ethical decisions. The cynical motives are I believe in order to curry favour with certain types of clients.”
“If worthy causes benefit from CSR programmes then so much the better, although one should remember that the driving force behind most programmes will be marketing for the firm in question.”
Choose your clients carefully
“The reality is that ethics, legality and compliance are all 'joined at the hip'. Law firms are in self-denial if they think they can walk the tightrope of compliance while acting for the serially unethical client. Sooner or later they will be compromised and presented with dilemmas that will inevitably cause them to regret ever having acted in the first place — and then who will face the music? The lawyers of course — better to do the right thing at the beginning.” Phil Jardine, partner, Morgan Cole
“In the current day and age, law firms have to be alive to client perceptions of their reputation and acting in certain cases or in certain ways can, for some clients, have an adverse effect.”
“CSR is just a marketing gimmick. But you do not need a CSR programme to decide not to act for shits. Firms define themselves by their client base.”
“Ashfords acted (albeit briefly) for Saddam Hussein in 2004 and the resultant adverse media coverage was enormous (and worldwide). Whether the same will apply re tobacco companies, major polluters etc, we will see. Animal rights protestors have made many organisations think twice about becoming involved in advising businesses concerned with vivisection etc. See the US pro-life movement for other examples.”
“If you act for a regime, corporation or individual in a high profile case and the press whips up extreme adverse publicity against your client, you may be remembered for that ahead of many other transactions you undertake.”
Everyone needs a lawyer
“Early in my career I had the experience of acting for a young man who was being questioned concerning an attempted murder. The case was notorious in the locality. My client lied about his whereabouts at the time of the incident, lied about his possession of a knife and was so like a published photofit that my staff recognised him from it. It transpired that he was entirely innocent. He needed representation. It has taught me never to judge by notoriety nor to let my personal feelings interfere in what is a basic human right — an equal right to representation. Social responsibility does not detract from, nor is it inconsistent with these principles.” Alex Megaw, partner, Pannone
“The same rules should apply to controversial regimes or corporate clients as to any other potential client. It is not difficult to do so. Regarding controversial regimes, there are few countries that have spotless records. The UK was spanked many times in the European Court of Human Rights for its torture practices in Northern Ireland, for example.”
“Everyone is entitled to proper legal advice, whether they like that advice or not. There is a fine line to be drawn between advising and adopting your client's position, which is unacceptable.”
“Controversial clients are also entitled to legal representation if the justice system is to operate fairly.”
The profession should do more
“Law firms could do more to influence behaviours in society/industry, particularly on moral and green/carbon issues.”
“Firms must be seen to be doing more than what is often simply a way of improving PR. Most are very profitable organisations and the proportion of time and budget dedicated to CSR programmes is still extremely small.”
“There is a lot of talk about CSR but actually little allowance for it — in setting chargeable hours and billing targets for example. It is also difficult for firms to take an ethical stance on accepting clients as not all partners or staff will share the same view. It should, however, form a much greater part of a firm's work in my view.”
“Law firms have to take responsibility and be seen to do so. To what extent, however, is CSR and some of the schemes much publicised just ‘window dressing’?”
“Based on the argument that 'everyone is entitled to representation' question four should have included an option 'sometimes it has a positive impact', for instance if you are brave enough to defend a war criminal. The key tests are: (1) is the client asking you to assist on something that you consider is unethical, in which case you should obviously not act; and (2) will the client accept your legal and sometimes ethical advice?”
The penny has dropped
“Partners and staff want to work for a firm whose priorities and actions are aligned with their own. Clients also take CSR increasingly seriously. And everyone can see through marketing puff — firms have to spend time actually doing, not just talking about it.” Simon Ricketts, partner, head of planning and environment, SJ Berwin
“CSR is a win/win/win strategy. There are benefits for the community, benefits for staff in terms of personal development and real benefits for us as employers in terms of staff recruitment and retention.” Stephen Woolfe, head of trusts, Harvey Ingram
“Firms that think CSR is a 'passing fad' have their heads in the sand. Younger lawyers, in particular, increasingly regard CSR as an important aspect of their professional lives. Interestingly I'd say that this desire to contribute manifests itself mainly in a positive wish to be involved in external 'help the disadvantaged' programmes rather than the more passive desire simply to avoid acting for controversial or ‘ethically challenged’ clients.” David Battiscombe, partner, Berwin Leighton Paisner
“Law firms have now become more proactive in implementing CSR programmes.”
“A firm's relationship with the world around it changes with time and, in the case of a firm's understanding of its social context, it needed something like CSR to bring this to more general consciousness. I would anticipate that in due course a new consensus will form and there will be a greater understanding of what is expected and a closer relationship between words and actions.”
“CSR programmes are a fantastic way to draw together various initiatives and make them more coordinated. Our current programme involves diversity, environment, charity and pro bono work and has been very popular so far with staff. In terms of recruitment and client expectation, it is important not merely to be ‘doing CSR’ in name, but to be actively committed to it in every respect.”
“Corporate social responsibility is part of what it means to be a professional.”
“While some firms may initially have ventured into the uncharted waters of CSR in order to keep up or keep in with their corporate clients, the evidence is that such programmes have now taken on a life of their own and are viewed positively within and outside the firm.”
Glass houses
“I am not convinced that it is ethical to work members of staff so hard that some of them have breakdowns in a bid to ramp up PEP. Some law firms even have a facility with the Priory for when their staff crack up.”
“It is a good thing for law firms to address social issues such as diversity, equality and discrimination. It is a pity that while helping to address these issues in the community, most law firms fail to address many of these issues in their own houses. So law firms remain one of the most hierarchical organisations around, continuing to apply sharp distinctions between ‘partners’, ‘associates’ and ‘support staff’. Shouldn't we all support each other in providing a service to a client as an integrated team? Physician — heal thyself!”
Talkback: Is there real substance to law firm CSR initiatives? Or is it just marketing puff? Click here to have your say.
