A profession close to ‘moral bankruptcy’

One entirely foreseeable consequence of Russia’s brutal invasion of Ukraine has been the backlash against ‘professional enablers’ in London who have facilitated the activities of the Putin circle – oligarchs and others – within the UK. It was foreseeable because for around a decade, via international forums such as the Financial Action Task Force, national security strategies in the US and the UK, and academic research, the legal profession has been pinpointed as a key vulnerability in national defences against kleptocracy, grand corruption and money laundering. The profession has been in denial about the coming storm, but the storm is now breaking. 

For analysts of corruption, this is quite a turn-up for the books. In the 1990s, lawyers were central to the nascent anti-corruption movement: framing national and international legislation and defending activists. So what happened?

Life became much more complicated. Law firms globalised, as did business, trade and the financial sector. Privatised state-owned enterprises from countries characterised by state capture and kleptocracy, along with their ultra-rich owners, started operating in and through London, pithily described by The Economist as ‘newly minted billionaires and a gaggle of flunkeys to serve them’. Law firms had overseas affiliates and offices in new jurisdictions, where the wealthiest were often the most unsavoury. Funds could move quickly and secretly, and there was an explosion in the size of offshore financial centres.  

This convergence of circumstances created enormous business opportunities for law firms – but also an increasingly acute conflict between commercial advantage and professional ethics. The need to know more about clients’ wealth also conflicted with the desire not to know more. Those conflicts are now coming to a head. Which way will the legal profession jump?

So far, the signs have not been positive.  The Law Society and major firms have been on the back foot, issuing defensive statements about the need to respect the rule of law, contesting the label of professional enabler, remaining silent on their peers’ attempts to silence journalists and prevent government action, and avoiding the issues of central concern. Those that have withdrawn from Russia look to have been cornered into a reluctant decision, appearing to demonstrate more followership than leadership.

To illustrate the debate, the Gazette recently quoted Article 18 of the UN’s Basic Principles on the Role of Lawyers, reminding us of key principles like the right to representation. There are fierce exchanges in the Gazette’s comment sections between those who cite legal principles, and those who are uncomfortable with obvious injustice. We need to reconcile Article 18 with the equally important Article 14: ‘Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.’

In other words, there are competing rights: the right of individuals to a legal defence, and the right to justice of their victims. Rights for one party can come at the expense of someone else’s rights. And there is an expectation in the Basic Principles that professional ethics will play a key role in reconciling the rights. Unfortunately, the playing field seems tilted towards those who have the funds to pay lawyers in London to help diversify and consolidate their wealth and, where necessary, defend their property and privacy. By contrast, the playing field seems heavily tilted against those who have been impoverished and imperilled by corruption and kleptocracy, who are in distant lands and have no legal representation – and in Ukraine, are being brutalised into submission.

The plain truth is that some law firms have for two decades, with gathering momentum, been acting as professional enablers.

Citing the right to representation is more often than not a straw man, because until the recent outrage and subsequent talk about government sanctions, the oligarchs and kleptocrats have not been seriously threatened with criminal action. Law firms are not required to do business with corrupt oligarchs or kleptocrats or to issue aggressive strategic lawsuits against public participation (SLAPPs) – they have a choice. In practice, Articles about the right to representation seldom come into play. Law firms have more commonly been providing standard legal services for corrupt individuals, their investment vehicles and their privatised companies, as well as reputation-laundering and finding loopholes in legislation to hide the movement of funds.

Moreover, the anti-corruption group Transparency International fairly points out that if access to justice is genuinely the key principle, those firms might be willing to defend their clients at legal aid rates, rather than using the resources that are themselves of suspicious origin. Alternatively, cost orders against law enforcement agencies could be at legal aid rates. Many campaigners take the view that the tone of moral outrage about Article 18 is a convenient excuse for wanting to maintain a lucrative status quo.

A second straw man is to claim that if parliament wants to legislate, it should do so, and meanwhile lawyers are merely upholding the law. This disregards the intense lobbying effort by law firms to water down such laws and maintain loopholes. If these loopholes exist and compromise national security, why is the profession not instead identifying them and lobbying for them to be closed?

In reality, the debate around professional enablers is not much of a threat to key legal principles, it is a very genuine concern that the balance between professional ethics and commercial advantage has moved far too far in one direction. Put simply, politicians and the public will no longer tolerate a situation in which corrupt overseas oligarchs and kleptocrats can use London law firms to consolidate their wealth and buy impunity for their crimes.

This damages the reputation of the entire profession, with the actions of a relatively small number of very large firms and boutique specialists tainting younger lawyers and most smaller and regional firms. That damage to the profession carries its own dangers. It is important for society that we have a legal profession, and judiciary, and criminal justice system, that are respected by society. The rule of law must be self-evidently operating in the public interest. The profession needs to be on the front foot, actively proposing solutions; but to date it has been on the defensive, falling back on arguments which have served well in the past but in the current context look dangerously close to being morally bankrupt. This issue will not go away: it is Russia today, but will be somewhere else tomorrow.

The solutions may not yet be clear, but here the legal profession is well served. It contains some of the finest brains in the country. A solution can emerge, if one important pre-condition is served: admit there is a problem.  We need to see the Law Society accept this simple proposition: London has become a centre of professional enabling; and society, the legal profession, and the wider world, will be best served by placing some reasonable restraints around such activity.

Other sectors have convened multi-stakeholder taskforces or commissions to seek a solution. That would allow some of the fundamental questions to be addressed in a reflective setting: which activities count as professional enabling? What ethical considerations should there be during client take-on, especially when there are well-founded allegations of corruption but seldom proof? Can we expect law firms to exit from tricky relationships? How do we regulate the ethics around SLAPPs? And so on. But without the basic admission that there is a problem, change and reform cannot take place from within.  However, change will come: and if necessary, it will be imposed from the outside.  

Robert Barrington is professor of anti-corruption practice at the Centre for the Study of Corruption, University of Sussex