Client instructions and the public interest - again

There has been much relevant news this week.

For instance, the UK and EU began their divorce proceedings at the World Trade Organisation (WTO), so that the UK can trade independently under WTO rules post-Brexit. But the prediction is that the wrangling about the UK’s schedules will continue long into the future. Surprisingly, it turns out to be no easier to negotiate with 164 members of the WTO rather than 27 members of the EU.

Then the Court of Justice of the European Union (CJEU) wrapped up before the summer by publishing a dozen decisions at once, one of which confirmed the Advocate General’s opinion in a controversial case where an Irish judge had referred a preliminary question regarding the return to Poland of the subject of a European Arrest Warrant (EAW), given the controversial changes being made to the Polish judicial system.

The court held that a Member State court must refrain from giving effect to an EAW if it considers that there is a real risk that the individual concerned would suffer a breach of the fundamental right to an independent tribunal and, therefore, to a fair trial, because of deficiencies in independence of the judiciary in the issuing Member State.

But there were two stories in the same week concerning the reputation of the solicitors’ profession, where solicitors were identified with their clients’ interests and behaviour in (presumably) carrying out their clients’ instructions against what is perceived as the public interest. These cases are now mounting, and should be of concern to the Law Society.

First, English PEN, which defends and promotes freedom of expression, issued a statement last week about the appointment of Anthony Julius, Deputy Chair of Mishcon de Reya, to its Board of Trustees.

The background is that Mishcon de Reya had been accused by the sons of the now murdered Maltese journalist, Daphne Caruana Galizia, of harassing, intimidating and attempting to cripple their mother financially by threatening to sue her in the UK. Her sons pointed out that such actions runs counter to English PEN’s values. English PEN was at the same time campaigning for justice for Daphne Caruana Galizia.

The alarming feature of the English PEN statement is the extent to which it focuses on the behaviour of lawyers, as if they are acting without client instructions:

‘Our inquiries have, however, brought to light the growing problems and a unique set of new challenges faced by media outlets and journalists in the UK and internationally from law firms seeking to chill investigations, and manage reputations of wealthy clients, at a time when an increasing number of complex and politically important investigations are conducted by independent reporters.

Since the legal profession was deregulated several decades ago, there has been a steady move towards law firms offering services that go far beyond the law courts. This has put an increasing strain on their professional ethics as set out by the Law Society and overseen by the Solicitors Regulatory Agency (SRA).’

The issues here are complex, and might be thought to yield no general lessons were it not for the fact that there was another publication in the last few days on a similar topic. This one was the House of Commons Women and Equalities Committee report on Sexual Harassment in the Workplace.

There is a special section in the report on the behaviour of lawyers in relation to non-disclosure agreements (NDAs) in sexual harassment cases, which begins ominously: ‘We have been particularly concerned by the evidence we have heard about members of the legal profession facilitating the unethical use of NDAs.’

The circumstances principally concerned an NDA drawn up by Allen & Overy arising out of conduct alleged against Harvey Weinstein, which led the Committee to conclude variously, including the following: ‘regulators must also demonstrate that members of the legal profession will face serious sanctions if…they misuse NDAs to silence victims of sexual harassment’ and ‘Use of provisions in confidentiality agreements that can reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offence for lawyers advising on such agreements’.

Both these cases raise huge issues. It is not just that lawyers’ actions are being conflated with their clients’ interests, which is only part of the problem. It is that lawyers are being used as a lever when their clients are perceived as not acting in the public interest, which is exactly what has happened in the area of tax avoidance as well.

Tax avoidance, threats of defamation, NDAs in sexual harassment – there is enough here for the Law Society to undertake a broad review of how solicitors should behave when there is a conflict between clients’ instructions and the perceived public interest, or else our reputation will continue to take major hits.