The paradox of legal ethics and practice: A critical analysis into the Irish Legal profession’s regulation
- Introduction
In the highly regarded Irish legal profession, where professionalism, honesty and integrity reign supreme, tension and a controversial ethical dilemma resounds, echoing the challenges Corporate Solicitors in Ireland face in balancing the duty they owe their client vis-a-vis the obligation to public interest. Juxtaposing the varying viewing of the solicitors to be driven by their self-interests and the duty owed to their client and in blatant disregard of the public interest duty, Andrew Bloon coins the controversy as follows;
“Lawyers’ ethics are sometimes criticised for lacking a clear duty to the public interest. Critics might argue that it suggests that legal professional ethics are a mirage. Without duties to third parties’ legal ethics amount to little more than service to clients and courts. Client duties are largely self-interested rather than altruistic; it is, after all, clients who are paying the bill. This deficit is particularly noticeable regarding collective responsibilities, such as those that might be owed to shareholders or the public generally.”[1]
Given the foregoing, this essay analytically delves into the debate to understand the ethical duty of an Irish solicitor to the client, the consequence of disregarding the public interest obligation, the moral dilemma the Solicitor faces and how best the lawyer, particularly corporate solicitors, can strike a balance between the duty s/he owes the client vi-a-vis public interest.
- The Solicitor’s ethics; Irish law perspective
According to Vaughan and Moorhead, corporate solicitors’ alias in-house counsels face conflicts of interest while dispensing their duties to the client and public interest. Some of these challenges include deciding what kind of information to reveal to the authorities to avoid harming the client, whether to advise the client on an unethical cause of action and, most importantly, balancing the interests of the public compared to that of the client.[2] It is axiomatic that corporate solicitors should anticipate these ethical challenges and be prepared to err on the right side of the rule of law.[3] Similarly, capacity training can inculcate culture (emphasis added). According to Rogers Watson’s argument, such emphasis stems from the sacrosanct role the Solicitor plays in the legal system’s proper functioning, citing the “good name of a lawyer to be public trust and they must maintain that trust.”[4] Therefore, by representing their clients while upholding the public interest duty, the solicitors would ensure a fair and just Irish legal system.
A cocktail of skills, knowledge and ethics should arguably form the bedrock of Irish solicitors’ training and education ‘from the cradle to the grave.’ However, critics such as Tim Dare argue that such is not the status quo, finding the current crop of corporate solicitors hyper-zealous to the detriment of public interest.[5] Such depiction mirrors the ethical compass of Irish corporate solicitors, a mirage devoid of an unclogged public interest obligation. Coupled with the abstract concepts of philosophical ethics, Freedman argues,[6] has made the profession suffer from what Joan Loughrey considers to be a solicitor considering the duty to the client to triumph over the collective responsibility to the public.[7]
To regulate the conduct of corporate solicitors in Ireland, the Law Society of Ireland has enacted a Code of Conduct which obligates the solicitors to uphold neutrality, professionalism and integrity while representing their clients.[8] Through this, the solicitors would have respected the first Solicitors’ regulatory principle of defending the rule of law, a sine qua non in the administration of justice. Likewise, the 2019 Solicitors Regulatory Authority principles oblige them to conduct themselves “with integrity” while avoiding “conflict of interest.”[9] Inevitably, this requires the solicitors to factor in the public interest obligation when torn between the client’s interest and those in the quest for a fair and just administration of justice.[10] Factoring such an interest would envisage the rule of law to protect the rights of others and access to an administrative system of justice that is just and fair, the corporate Solicitor being a key player (Emphasis added).
Controversially, quoted words of Andrew Bloom in the introductory chapter criticise the ethical compass of laws as lacking “a clear duty to the public interest.”[11] Arguably, the criticism finds the current Solicitors’ professional ethics akin to a mirage, belittling the duty owed to the third parties, hence reducing the corporate litigation to a solicitors’ service to the courts and clients.[12] Such depiction further depicts the solicitors serving the client’s self-interests rather than embracing altruism; after all, the client pays the bills under corporate practice.[13] Noticeably, the deficit is manifest on the issue of collective responsibility, whereby a duty is owed to the public and/or the shareholders, as was the case of corporate solicitors in the Lehman Brothers case.
The Irish legal system has a rich history of upholding the rule of law and respecting the duty of various stakeholders to the public interest. The Irish Constitution, for instance, echoes that “[the state] shall uphold the principle of equal justice to all citizens.”[14] The Law Society of Ireland’s Code of Conduct reiterates that solicitors have a duty to safeguard the public interest. The same applies suit to the duty’s discharge as enabled by institutions such as the Public Interest Centre and the Pro Bono scheme to supply those unable to afford the legal fees with aid while encouraging the solicitors to provide free legal assistance to give back to the community.
Lawyers’ engagement with clients creates a fiduciary relationship with outflowing obligations and values whilst commanding trust. Therefore, from a Civil-tort law point of view, a corporate solicitor is expected to exercise a higher “ethical standard of care” than a layperson.[15] Key to such standard stems from the various ethical dilemmas the solicitors face borne out of the codes and principles regulating their ethical conduct. For instance, the SRA Code Rule 1.05 admonishes the solicitors against acting in a manner likely to “bring the legal profession into disrepute.” A purposive interpretation of this rule views it to advise the solicitors to factor the public’s interest even while advising their clients on issues that likely have a negative public interest impact.
Illustratively, picture an Irish corporate solicitor representing a company dealing in fossil energy. For such a corporation to generate revenue, it must deplete non-renewable energy sources, hence depleting the environment. Ethically, the corporate Solicitor faces the dilemma of discharging their obligation under the 2019 SRA Code of Conduct principle 7, requiring them to act in the client’s best interest, versus the second principle requiring their action not to erode public confidence and trust in the legal principle (The English and Welsh Code, which applies to Ireland being a part of the United Kingdom. Furthermore, unlike other rule-based codes, the Code is principle based. Accordingly, these principles ensure that the advocates and solicitors protect the public’s interest by acting responsibly and competently, not jeopardising the public interest.
- Corporate Solicitor’s ethical dilemma
In the afore-analysed regulations, the corporate Solicitor justified the critics’ arguments, finding that most of the solicitors primarily focus on serving the court and the client over the vast public interest expense. Being a prevalent practice in the corporate sector, Andrew Boon faults the SRA code and principles to be largely revolving around the corporate Solicitor’s loyalty and devotion to fulfilling the objectives of the client, circumstantially neglecting the broader Solicitor’s duty to third parties, for example, the society.[16]
A good corporate lawyer draws a clear line between him, the client, and the third parties contemplated under the Code of Conduct. As such, s/he would not entertain a consideration that would contravene the rule of law and fair administrative actions. This obligates the Irish corporate solicitors to adhere to the Code’s paragraph 1.4 by desisting from misleading the client, the client and third parties by their conduct or complicit in the client’s conduct. Owing equal duty to every party prescribed at law, Wendel’s argument obliges the corporate solicitors to protect the public interest even if such an interest conflict with that of the client.[17] For instance, the client must recuse themselves from representing clients seeking to harm the adversary or third parties. The public interest extends to reporting a client engaging in legally unethical conduct (Emphasis added). However, the Irish law society is silent on circumstances the Solicitor might refuse to represent as a solicitor. The silence might be attributed to Wendel, who argues that solicitors should champion access to justice by making their services accessible to those in need of them, their ability to afford legal fees notwithstanding.[18]
Moreover, the Irish corporate solicitors should avoid being hyper-zealous, for this would likely brew challenges such as Misrepresentation and legally unethical advocacy that would negatively affect the client’s case. Rather, Dare advises the solicitors to maintain a mere-zeal level, for this would control their enthusiasm level hence able to dispense quality legal services to their clients without neglecting the public interest duty for an ethical standard of care prevails.[19] This, according to Fried,[20] would paint the law to be trustworthy, loyal, and with the required Candor to the extent of upholding solicitor-client confidentiality.
The public interest duty also transcends to law firms that need to be responsible for their actions that, sometimes, contravene the mentioned obligations. According to Loughrey’s accountability scholarship, the inadequacy of corporate law firms’ regulations is of concern, more so concerning upholding their public interest duty.[21] This is attributable to the fact that the corporates are left to regulate themselves. Compounded the firms’ secrecy disguised as confidentiality and limited liability hamper the efforts of holding the firms accountable for their actions and holding the individual partners for the debts accrued by the law firms. According to Loughrey, regulatory reforms are nigh.[22] This ensures that the firms are regulated externally, providing the grounds for piercing the confidentiality veil and finding ways in which the partners are personally liable for the debts the firms incur.
Apart from the public, corporate solicitors have a general duty to the shareholder. Given that the corporate solicitors represent both individual clients and companies, they owe the company shareholders a duty to act in their best interest to maximise the shareholders’ value vis-à-vis maximising the profits the companies realise.[23] Conversely, such representation may sometimes conflict with public interest through acts detrimental to the environment and contravene the consumer protection regime and overall corporate social responsibility (Emphasis added).
Conclusion
The essay has delved into the corporate solicitors’ duty to balance the client’s interest vis-à-vis the responsibility of public interest. From the analysis, the Irish corporate Solicitor owes the client and the public interest an obligation to act with integrity, honesty, and professionalism. They do so by acting decisively, ethically, and independently in a manner that promotes fairness and justices while taking cognisance of the client’s duty vis-à-vis that of public interest. Such ethics have been enshrined under the Solicitor Regulatory Authority’s Code for solicitors, firms’ Code of Conduct and the attendant principles. Likewise, these standards, while enacted for English and Welsh, they apply to Ireland by virtue of being part of the United Kingdom. Through ethical sober ethical judgment, the stakeholders should adhere to the Law Society of Ireland professional codes of conduct and a carefully considered ethical judgment by balancing the professional duty they owe the client versus public interest responsibility.
