Client selection: The next frontier in the evolution of legal ethics

These words were written over 60 years ago by the then secretary to the Law Society, Sir Thomas Lund. What they make clear is that it has been long established that the ethical standards of the legal profession are not static. They develop as society’s values develop. Indeed, the generational shifts referred to by Sir Thomas are now much shorter.

This issue was most clearly demonstrated by the use of NDAs in employment cases following the #metoo movement. Some practises that were previously regarded as acceptable are now the subject of a warning notice by the SRA and prosecutions before the Solicitors Disciplinary Tribunal. These examples also highlight that legal ethics extends beyond simply whether something is in the client’s best interests and legal. Legal professionals also have a wider duty to act in a way that upholds the public interest.

The next frontier in the evolution of society’s values and therefore legal ethics is that of client selection. Legal professionals have long argued that just because they act for someone it does not mean they share their values. This principle has at its zenith the bar’s cab rank rule. Whilst not applicable to all branches of the profession, its spirit is still strong. Yet, increasingly the view taking hold is that lawyers are more than advisers, they are also enablers. Given this tends to be advocated by younger members of the profession, as such it is likely to become dominant.

This issue has been rumbling for some time in relation to whether firms should act for, say, oil companies. It has been thrown into very sharp relief by Russia’s invasion of Ukraine. Law firms have faced intense public scrutiny as to their Russian client base. It does not matter that not so long ago acting for Russian clients was encouraged by government.

These developments have clearly raised immediate and pressing issues for law firms. However, underlying the obvious moral imperatives are some nuanced questions around how far this should go. Legal professionals do a wide range of work. In terms of criminal and civil litigation, it is an important element of the rule of law that everyone is able to access representation. That is why the cab rank rule is so important. The more difficult territory is in relation to advisory work. Here legal professionals are less directly involved in the administration of justice. However, there is a legitimate argument that cutting clients off from expert independent advice may not necessarily lead to a better outcome. These are difficult fact specific judgments and should be recognised as such. Equally, law firms will be increasingly asked to justify their client selection.

A further issue for firms to grapple with is that the criticisms the legal profession face are made with the benefit of hindsight. Are there other groups of clients who are currently considered acceptable but who will raise reputational risks in future as public attitudes shift?

All of these developments mean that client selection should no longer be the decision of an individual partner or team. The decision needs to be assessed by the firm against set criteria and with an eye to the future. Many firms already take this approach and more will now surely follow. It is also clear that these decisions are not just risk management decisions, they will, in time, shape the firm’s place and reputation in the market.

Iain Miller is a partner specialising in legal services regulation at Kingsley Napley LLP