When does representation become facilitation? And is it feasible or desirable to revisit the boundaries between the two for the purposes of regulation? The answers to these questions would seem to be at the core of pointed exchanges between lawyers on the profession’s role in allegedly ‘enabling’ Vladimir Putin’s ‘corrupt henchmen’.
Few disagree with the presumption that everyone deserves the right to legal representation, at least in contentious disputes. Principle 18 of the UN Basic Principles on the role says that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions. And it is axiomatic that everyone has a right to lawful representation; that lawyers are permitted to undertake whatever is lawful on behalf of their clients; and that it is not for lawyers to decide what is in the public interest.
This much we know. But, as our own columnist Jonathan Goldsmith presciently wrote in his Gazette blog last Monday: ‘Our response is like bringing a pea-shooter to a gunfight. Article 18 of the Basic Principles is not going to persuade anyone at the moment.’
It certainly doesn’t persuade Bob Seely. On Tuesday, the Tory MP used parliamentary privilege to project the ‘lawyer-enabler’ narrative on to newspaper front pages. ‘Naming and shaming’ could be held to invite reprisal, which looks ugly. But Seely’s incendiary intervention was generally lauded across social media.
So what now? Seely suggested the SRA be ‘toughened up’, but how? The regulator has taken dozens of cases to the SDT involving anti-money laundering processes in the last five years. Many solicitors have been struck off. Are AML/know your client checks failing or simply being bypassed, as he alleges? The regulator wants to see evidence.
A dam has been breached regardless. City firms may have thought just days ago that they could ride out the storm by pointing to the principles enumerated above. Suddenly, they are falling over themselves to demonstrate they are reviewing their exposure to Russian clients and willing to take action.
The fact that they appear to have bent to the popular will in this way may well have far-reaching ramifications for the business of law. The first casualty of war is not so much truth, it would seem, as perspective.
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