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IBA on role of lawyers as ethical gatekeepers

Soft law, particularly when devised by lawyers themselves, could help in the pursuit of more ethical legal practice, states an IBA report. The term soft law is used to denote agreements, principles and declarations that are not legally binding. Soft law instruments are predominantly found in the international sphere such as UN General Assembly resolutions.  

The report was produced following a roundtable convened recently by Chatham House, co-hosted by International Bar Association (IBA) officers and members with support of the IBA's Legal Policy & Research Unit (LPRU). 

Discussions centred on the challenges facing the profession, including whether existing guidance is enough to meet those challenges, and how law firm leaders and regulators might, or should, respond to the increasing shift in focus towards a more global, socially conscious set of expectations for the profession.

The meeting’s participants included lawyers and bar representatives from common law and civil law jurisdictions, parliamentarians, academics and representatives of international organisations, members of civil society and corporate clients.

Ethical responsibilities

They assembled to examine the ethical responsibilities and obligations of lawyers when providing legal services.

The event formed part of a proactive effort by the IBA to engage with critics of the profession, foster constructive dialogue, find meaningful solutions to real or perceived problems, whilst also examining the dangers of undermining the profession’s core values.

A broad consensus was reached that guidance produced by the profession on ethical and governance matters, would be more effective in promoting positive change than government intervention (and less damaging to the independence of the legal profession).

It was also agreed that self-regulation could be more targeted to address specific issues, and would be quicker to implement, and potentially better devised than externally-imposed regulation.

Some participants also argued that internally-devised soft law would help to preserve the independence of lawyers in circumstances where authoritarian governments sought to undermine the rule of law and constrain the legal profession.

Criticism

Lawyers are facing increasing criticism and pressure from civil society, governments and the media to ensure their professional activities align with wider societal expectations, especially in cases of major global concern such as the climate crisis or facilitation of grand corruption and kleptocracy (government by people who use their power to steal their country’s resources).

Some civil society participants at the roundtable argued that self-regulation failed to address abuses by members of the legal profession in certain situations, for example when dealing with strategic lawsuits against public participation (SLAPPs) and non-disclosure agreements (NDAs).

Constraints

Participants also noted that there have been instances where lawyers have been unhappy with constraints imposed at major law firms, and have moved to ‘boutique’ firms specialising in more ‘questionable’ legal work.

One participant argued that legal regulatory bodies should better calibrate their response to infractions by designing interim penalties to improve lawyers’ behaviour.

Another participant at the 4 July event reasoned that non-lawyers could play a bigger role in the development and oversight of legal codes of practice to ensure that society’s broader concerns were taken into consideration.

Several participants remarked that if the legal profession failed to take pre-emptive action in dealing with ethical quandaries, governments would be forced to act under the pressure of public opinion.