Using values as a sword is easy. Lawyers around the world do it. An example is the letters that bars, including the Law Society, send to foreign governments to insist that these governments treat their lawyers properly. Or in initiatives that we take against our own government when measures threaten the way that lawyers practise. On those occasions, phrases like ‘the rule of law’ and ‘the fair administration of justice’ come easily to us, and we wield them, because others have to take action to support them.
But what if it is we who are failing to take action in support of our own values? It seems unlikely. What, us? Are you sure you are not making a mistake?
But the accusations made against us recently with regard to lawfare – mainly SLAPPs – raise questions about our role in the fair administration of justice. Some of the other accusations of so-called professional enablement do the same, for instance when victims of sexual harassment have been silenced by non-disclosure agreements.
In reply, we do not cite our high-minded phrases. In my experience, we then say that the phrases are too vague, that we are not responsible for making the laws, that our only responsibility is to our client and our professional rules. We cast ourselves as a trade, like plumbers, and not responsible for any greater social values.
This question is about to become even more urgent in respect of access to justice.
Since the Legal Advice and Assistance Act 1949, access to justice has been seen almost entirely as the responsibility of the government, either central or local. Pay more for access to justice, we cry. But history shows that government pays less.
As we know, access to justice is fast crumbling, in both the civil and criminal fields: eligibility levels are very low, lawyers’ fees are descending rapidly, and the courts have backlogs and crumbling infrastructures. It may well be that soon we will have to conclude that there is no effective access to justice for large portions of the population.
What is our response? We can go on and on shouting that the government must pay. But do we have no responsibility ourselves? Access to justice is one of our favourite phrases when describing our professional values.
When the issue is raised, I have noted how often lawyers say that plumbers do not have to pay out of their own pockets for poor people to have access to sound pipes, so why should lawyers have a responsibility for access to justice? Again, there is the sense that we have no responsibility for our own values: only other people must implement them. So are we like plumbers, or do we have broader social obligations to our sector?
‘Improving access to justice’ is one of the regulatory objectives of our profession. Principle 2 of the International Bar Association’s ‘International Principles on the Conduct of the Legal Profession’ states that: ‘A lawyer shall take reasonable steps to ensure that those unable to pay or otherwise gain access to justice because of personal circumstances are guided to the best alternatives for such access.’
In other words, if access to justice crashes around us, do we just shrug our shoulders, or do we take steps to fill in the gaps to ensure that some minimum access is guaranteed? Some are afraid to take the slightest step because it will let the government off the hook. It is their responsibility, not ours! And if the argument continues for years, with the government refusing to budge? Will we just say ‘too bad’?
There are steps we could take to fill the funding gap. Even to mention them is considered by some to betray the principle that the government should pay (to which I subscribe, but if the government won’t, what then?). The steps will all cost us something.
For instance, there is the interest that lawyers earn on their clients’ money. In other jurisdictions, it goes towards projects which benefit justice. Under the French scheme, all client money goes to the bar’s account. In some common law jurisdictions, the principle that lawyers should not benefit from their clients’ money is strictly enforced (interest on lawyer trust accounts or interest on lawyer trust accounts schemes).
Then there is pro bono, which in some jurisdictions is compulsory to compensate for the absence of legal aid.
There is also the Japanese initiative where the bar levies the profession to supply lawyers to remote regions where no lawyer currently offers services.
We need to wean ourselves off the notion that the government is going to continue to pay for everything forever. It is improbable that they will do so again, whatever the colour of government. So what do we do, turn our backs, or take action ourselves to promote the values that we mention so often?
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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