Cultural sensitivities

There was a lively debate at the International Bar Association annual conference in Boston about whether its council should endorse a resolution touching on wider cultural matters. The issue in question was the decriminalisation of all sexual acts between consenting adults in private. There were heated debates about various aspects – the wording, for instance (all sexual acts? Including incest?) and the procedure (why a resolution on this cultural matter and not on another which some felt might be more pressing?). But the real problem for me was whether the IBA should be passing such a resolution in the first place.

The question often arises as to whether bars should give opinions, or lobby for positions, on issues which do not directly affect the regulation or practice of law by their members. There are arguments for and against.

The main argument ‘for’ was made by a proponent of the resolution in Boston. Criminalisation and decriminalisation are legal matters, affecting the law. Lawyers, prosecutors and judges are involved in cases where a person might be found guilty of a sexual act which in another country – let us say in most other countries – would not be considered a criminal matter at all. Of course, I can have sympathy for the principle, but it is an absurd argument in the context. It opens up every aspect of human conduct regulated by law as a matter on which the bar should, or at any rate could, have an opinion. That dilutes the range covered by the bar to everything in the world, which undermines its statements on issues which are core to its being, namely regulation or practice of law by its members.

A secondary argument ‘for’ was that all self-respecting organisations come out against discrimination, and that the resolution in question was just a case of catch-up. But there is a difference between opposing discrimination in the legal profession itself, for which the bar has responsibility – the IBA already has a resolution to that effect – and opposing discrimination in any form anywhere in the world. The latter is often a matter (as here) which touches unnecessarily on religious and cultural sensitivities, and which widens the issue, as above, to a matter of absurdity.

The final argument ‘for’ was that members of the profession are themselves affected by the criminality of certain sexual acts (gay men and women are the obvious group), and so the whole profession should call for decriminalisation in solidarity. Again, I have sympathy – indeed, I did not hear one person in Boston come out against the notion of legal freedom for gay people – but the resolution has nothing to do with their practice as lawyers.

I have hinted at some of the arguments ‘against’. Much time was spent debating why this resolution and not another – for instance, sexual violence against women, which is already criminal, although difficult or impossible to enforce in certain countries.

For me, the clincher comes back to the principle of the role and rationale of a bar. Most bars regulate lawyers in one form or the other, although some just represent their members. They all have finite resources and a wide range of difficult professional issues on their plates. With regulators, their members are mostly captive, meaning that they have no choice but to be regulated by this bar, or represented by it. As a result, the bar owes a responsibility to its members to act properly within its mandate, which is nearly always to deal with issues relating to regulation or the practice of law.

In the US (and this was confirmed by one of the participants in the Boston debate) some bars have adopted positions on divisive matters such as abortion. Since regulation in the US is mostly by the courts, and the bars are mostly voluntary, they lost members as a result. As I have mentioned, resignation may not be a possibility in a mandatory regulatory bar, where you lose your licence if you take yourself off the list of members. The IBA is a voluntary organisation, but could it claim to be the global voice of the legal profession if a swathe of conservative member bars – for whom personally I have no sympathy – decided to leave the organisation as a result of its adoption of liberal resolutions on matters outside the normal mandate of a bar?

Oh, what a jolly dilemma! But, when you think about it, it is not a dilemma at all. My advice is: stick to your job, do not be seduced by wider cultural debates; your role is to pass resolutions on lawyers, their regulation and the practice of law. Anything else is outside your mandate.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs