Lord Neuberger, President of the Supreme Court, recently gave the Lord Slynn Memorial Lecture 2016 in London. The lecture focussed on issues of professional conduct in advocacy and the developing ethical landscape for legal professionals in general.
The full speech can be read here: https://www.supremecourt.uk/docs/speech-160615.pdf
Lord Neuberger sought to highlight the increasing significance of ethics in the legal profession. He considered the fundamental principle of the rule of law to be “scarcely maintainable” in England & Wales, unless judges and lawyers continued to consider themselves ambassadors upholding competence and honesty in their professional responsibilities.
As a practical counterpoint he illustrated the inherent conflict between a lawyer’s duties both to further his client’s interests but also to uphold his professional standards and adhere to the rules of the Court. With reference to judicial inconsistency on a point of disclosure in the judgment of Vernon v Bosley , Lord Neuberger then demonstrated that litigation best practice had in some areas been left in a “state of complete uncertainty”.
Lord Neuberger provided several points of guidance for advocates when they find themselves in situations where their professional conduct is in issue.
Advocates may occasionally encounter a similar difficulty to that experienced by solicitors where clients inappropriately attempt to influence an advocate’s submissions or put forward an inaccurate representation of the facts. In such situations Lord Neuberger’s recommendation was that an advocate must take individual responsibility for advancing his client’s case. The advocate must refrain from being a mere “mouthpiece” and instead employ his own decision-making, case strategy and submissions. Lord Neuberger’s general rule was that an advocate should continue to act for such clients up until the point where the client refuses to follow the advocate’s recommendations and advice such that the advocate can no longer represent the client properly.
Lord Neuberger went into further detail over advocate behaviours in Court. He noted that advocates may be drawn towards attempting to impress the sitting judge in the course of his submissions resulting from a desire to further his standing as an advocate within the profession. However, this should never encroach upon an advocate’s attempts to further his client’s case. Lord Neuberger’s view on the accuracy of submissions was that the Court must not be misled as to facts that are known to the advocate. It is permissible to develop known facts with potential explanations and theories which are expressed in these terms.
Opposing litigants in person were described as presenting a specific set of ethical issues to advocates given the resulting imbalance of professional knowledge. Lord Neuberger noted the difficulty an advocate may face during proceedings where both the sitting judge and an opposing litigant in person did not detect an error in law that favoured the advocate’s client’s case. In such circumstances, Lord Neuberger recommended that the advocate should inform their client of their obligation to alert the court to the error before suggesting that the client dispense with his services as an alternative. Whether the advocate elects to continue to address the Court on the error at the point of terminating their participation was recognised as an uncertain point of practice.
Lord Neuberger’s advice to advocates experiencing this imbalance of professional knowledge is to refrain from providing legal or tactical advice to one’s opponent and instead to limit such assistance to points of procedure and drawing their opponent’s attention to key issues and documents:
“…the nub of what opposing lawyers and judges should clearly do to help litigants in person: they ought to be helping to focus their time and, in and out of court, on the issues in the case.”
Emerging ethical issues
Turning to new and emerging ethical issues, Lord Neuberger recognised the increasing difficulty in undertaking comprehensive conflict checks. A modern business landscape consisting of international companies and law firms, multi-entity corporate groups and multi-party litigation has introduced an excessive administrative burden at the point of engaging a new client.
Lord Neuberger also had ethical concerns regarding modern charging methods for legal fees. He noted that success fees may prevent lawyers from providing entirely disinterested advice free from the conflicting incentives to safeguard a client’s interests and ultimately winning his claim:
“It is more the fact that an advocate (or other lawyer) with a financial interest (often a heavy financial interest) in a case will not be giving entirely disinterested advice. If we really believe that lawyers, and indeed other professionals, should not be placed in a position of conflicting loyalties, the case for success fees and defined benefit agreements may appear to many people to look a little shaky.”
Lord Neuberger also cautioned against the potential for conflicting incentives in law firms adopting new models such as multi-disciplinary partnerships or alternative business structures (“ABS”). The presence of non-lawyers in senior positions of authority or management within law firms creates an ethical gap whereby the professional duties of the lawyers are not always appropriately prioritised:
“The risk of conflict in an ABS, where the law firm is owned wholly or partly by non-lawyers, is obvious: the investors will often have no experience of, or interest in, the lawyers’ ethical duties, and will often be ultimately only concerned with the bottom line.”
Lord Neuberger’s broader message for the future was that innovation in information technology and artificial intelligence would change the legal profession more rapidly in the next 20 years than in the previous two centuries. Noting the real prospect of developing automated or robotic appliances to be used in the legal profession he encouraged preparation for the ethical challenges ahead.
Lord Neuberger concluded by seeking to emphasise the importance of ethical training in the legal profession and to warn against succumbing to a perfunctory “tick-box” attitude to these issues:
“I would make a plea for greater prominence for ethics in legal training both on University law courses and on professional legal training courses. I have not referred to regulation much in this talk, but one of the downsides of relatively high profile regulation is that it can easily lead to an attractive culture which effectively takes high ethical standards for granted being replaced by a box-ticking approach, in which, provided she can comply with relatively inflexible rules, an advocate feels free to do whatever she likes.”
“..the earlier and more effectively, we train and encourage potential professional lawyers and advocates to appreciate and understand the importance and nature of their ethical duties the stronger a legal profession we will have, and the stronger the rule of law will be.”
As ever with such extra-judicial lectures, the views expressed are Lord Neuberger’s own, and do not necessarily reflect the position of the Supreme Court.