“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
- Universal Declaration of Human Rights, Article 10
The right to a fair trial is one of the most ancient legal concepts, dating back way further than the UN's Declaration of Human Rights or even that cornerstone of English law, the Magna Carta.
It also implies, that everyone is entitled to legal representation – be they burglars, blackmailers, conmen, muggers, kidnappers, rapists, paedophiles, murderers or terrorists. This is accepted as right and proper. If lawyers refused to represent certain individuals, then how could we, as a society, claim to be offering those accused a fair and just hearing? The law must treat everyone equally, or it is nothing.
For this reason lawyers who represent criminals, or suspected criminals, play a vital role in the legal system. It is relatively straightforward to justify the job that they do, even if it does sometimes mean a criminal walks free.
But away from criminal litigation, there are areas of law where the ethical issues are far more complex. The profession glosses over them. You won't read many press releases from firms boasting about the time they got an oil company off charges of a child's poisoning due to atmospheric pollution. Even the legal press, which loves nothing better than kicking a troubled firm and gleefully jumps on the misdemeanours of individual lawyers, doesn't call firms out on their more unpleasant clients.
Obvious examples spring to mind when thinking of 'unethical' industries – arms manufacturing is one, and depending on your personal scruples you might add tobacco, pornography, gambling and more. You might think it's easy enough to avoid working for such obviously 'nasty' organisations. But morally questionable practices can be found at companies with less toxic reputations.
The world of finance is an obvious example. Most of the UK's large law firms service this industry in one way or another and trainees may well find themselves working for a client engaged in unethical dealings. For example, in 2010 protesters targeted the London office of an international law firm, demonstrating against its actions on behalf of 'vulture funds' – a type of private equity or hedge fund that invests in debt issued by weak or dying companies (or countries for that matter). They buy up the debt cheaply, when it is about to be written off, before suing for the full value of the debt plus interest. It's regarded by many as “cynical profiteering”– rich businessmen further lining their pockets at the expense of poor nations. Another example: the tax avoidance schemes of Amazon, Starbucks and Google have recently come under scrutiny: junior lawyers somewhere will have had to work on those.
We canvassed some young lawyers who had something to say about ethics and the law. Obviously this is not a scientific survey – we don't claim their experience is representative of the profession as a whole. All we can say is they work (or worked) at large and well-respected commercial firms. All names have been changed.
What was the most objectionable thing that you've been asked to do as a trainee or lawyer?
Andrei: I was asked to draft a memo for a 'Defence Technology' company, outlining UK/EU regulations relating to the export of weapons to 'Countries of Concern'.
Bella: A lot of the corporate deals I have worked on are structured in the most 'tax efficient' way. This usually involves a series of BVI/Cayman and Dutch or Cypriot companies to minimise tax paid on movement of capital up the chain to the ultimate owners.
Charlie: Personally, I don't feel I have ever been in that position, but I have provided corporate and transactional advice to private equity firms buying up smaller businesses and given advice to banks on their commercial activities. People with certain political views might consider that controversial.
Was there discussion within the firm about the ethics or morality of working on such matters? Was it acknowledged as ethically or morally dubious?
Andrei: I made a suitably flippant remark about the moral implications, the associate who passed me the work basically inferred that the reason it was given to me was because he had similar views. The advice given was along the lines of, 'Unfortunately, sometimes you have to leave your conscience at the door'.
Bella: Not really. The use of 'tax efficient' structures is standard practice when working on corporate transactions. Until HMRC says it's illegal tax avoidance then we will keep advising our clients to do things that way. We would be failing in our role as advisers if we didn’t; we are not paid to be the client’s conscience.
Charlie: As a junior lawyer it's often not expected of you to 'know' about moral issues like this. You may simply be asked to 'proofread this' or 'give tax advice on that'.
What was the attitude of the senior lawyers working on the deal? How did they justify working on such matters, if at all? Was there wider internal discussion about these issues or was it just 'this is what the client wants'?
Andrei: The lawyer heading the deal was based in New York, so I didn't have any interaction with him – see above for the (relatively junior) associate's response.
Bella: The firm does consider whether taking on a certain client will harm our reputation. We do represent a number of companies who have been accused of harming the environment and causing health problems. But those companies have very extensive corporate social responsibility programmes (and try to minimise the harm caused) and so acting for them is justified in this sense. Plus they bring in lots of fees.
Charlie: The issue of morality may not always be at the forefront of partners' minds. They are focused on the commercial side of things.
How did you feel about the situation? Did you justify it to yourself?
Andrei: I don't think you can ever justify it to yourself. The 'leaving the moral conscience at the door' was the only comfort I could take.
Bella: Yes, you have to. As a trainee you can’t really refuse work. I have not done anything so far that has made me feel very morally uncomfortable. However, if I was asked to work on a specific project for a client which I knew would be harmful to the environment or the local community (typically indigenous communities) then I would have an issue.
Charlie: I work on a lot of corporate issues, so a lot of my job is about pointing out what businesses can and can't legally do. Obviously you have to take commercial considerations into account too, and often when you are giving advice you end up bending your views to be more commercial. For example, you might present a client which options A, B and C as they seem the most legally obvious to you, but from a commercial perspective they may try to push you and together you'll conclude that, yes, options D, E and F are also possible.
What proportion/percentage of your work during your time in the law has been of a nature that you personally felt uncomfortable with, or would consider ethically or morally dubious?
Andrei: This was really the only piece of work that I questioned. In reality, this was maybe two days out of two years of my training contract.
Bella: Not too much. It depends where you work internationally and what department within the firm you work in.
Charlie: I don't feel any of the work I do falls into that category.
Was the less savoury side of the law something you considered before you started at your firm?
Andrei: I certainly was aware that I would be working with and representing significant corporations who wouldn't always receive the greatest press! I don't think I truly considered what that would entail.
Bella: I always thought I would be on the other side of the fence when I started practising, ie representing individuals harmed by large corporations or governments, and defending the moral high ground rather than walking the line between what is morally justifiable and what is slightly controversial.
Charlie: Of course. But ‘less savoury’ is an incredibly broad, and often subjective term.
Is there much coverage of this topic at undergraduate and law school level? How many of your fellow students wanted to be lawyers to 'save the whales' or be Atticus Finch, as it were?
Andrei: I think most students going to a City/US firm know what to expect. Certainly at undergrad level, there was more of an academic bent to the studies, and I don't think anyone really considered it in the context of professional life.
Bella: Quite a few, myself included, had such high ideals as first-year undergraduates. Many of my friends became disillusioned at university and abandoned the law altogether. By the time I reached law school I already had my city training contract so I knew more or less that I was destined to represent corporate interests rather than giving a voice to the disadvantaged. The professional and legal standards that you must meet as a solicitor are hammered into you at law school so you know clearly where the line is and not to cross it.
Charlie: I think that the people who want to 'save the whales' don't usually consider going to City firms. Those types of people certainly exist but they usually end up doing something else like joining a claimant firm or working for a charity; or perhaps for an NGO.
When you were a student, would knowing you'd have to work on tasks like this make you reconsider going into the law in the first place? (If you've left the law, did this play any part in your departure?)
Andrei: I don't think it would to be honest – when I think about my time in the law (and my reasons for leaving), it was more about the lifestyle than anything else. One of the key reasons however, was the failure/dislike/distrust of discussing the wider academic implications of the law in general. As rule unless it 'helped the client' it was not worth discussing.
Bella: No. My training contract is a means to an end. If I find myself being asked to do things that I am morally uncomfortable with then I will have the skills to leave and do something else.
Charlie: The things I consider as pros and cons of my job do not really relate to morality in the pure sense. To date I have not had to confront the morality of my role.
This feature first appeared in our March 2014 newsletter.