The International Bar Association (IBA) has announced that it has embarked on a project to examine the professional role of lawyers as ethical gatekeepers within wider society and to help clarify the ethical responsibilities and obligations of lawyers when providing legal services. The new project is designed to be a proactive effort, seeking ways to engage in meaningful dialogue with those criticizing the profession, while also explaining the dangers behind any undermining of the core values of the legal profession.
Criticisms of the profession have emerged from a number of sources, with the most recent high-level reproach coming in relation to legal services provided to individuals and entities associated with Russia’s invasion of Ukraine. These attacks follow existing and sustained charges levied against the profession in relation to perceived facilitation of illicit financial activity, enabling climate change and frustrating the achievement of the United Nation’s Sustainable Development Goals.
IBA President Sternford Moyo, chairman and senior partner of law firm Scanlen and Holderness, commented, “Over the last two decades, the IBA has been increasingly proactive and visible in its efforts to fight corruption and promote core standards for the legal profession, including our groundbreaking guidance for business lawyers on human rights contained in our 2016 Practical Guide. Now we are leading the charge in the global response to one of the greatest challenges facing the profession today - namely, how to respond to the ethical challenges and criticisms that lawyers face in relation to our profession’s core principles and the provision of legal services.”
The criticisms referenced by the IBA President include accusations that lawyers hide behind and abuse some of the key principles of the profession, notably the protection provided by lawyer-client confidentiality, to shield and protect the ethically questionable (and at times criminal) behavior of their clients. In some cases, this criticism has metastasized into a deeper questioning as to whether lawyers should continue to be afforded the benefit of not being associated with the interests of their clients, which is inherent in the professional work of a lawyer, in providing independent legal advice to a client.
Moyo added, “Through the IBA Statement in Defense of the Principle of Lawyer-Client Confidentiality specific attacks on the principle of lawyer-client confidentiality have been rebutted. However, what is now required is a much broader and more comprehensive international response to address concerns while defending the core principles of the profession. If nothing is done, there is a real danger that the vital importance of these principles will be eroded and gradually forgotten in the eyes of wider society. This would have disastrous consequences for the future availability of independent legal advice, fair legal systems, and access to justice for citizens around the world.”
The Gatekeepers Project, led by the IBA’s Legal Policy & Research Unit (LPRU), will commence with a consultative exercise across the IBA membership, to invite input from bar associations, law societies, law firms and individual practitioners.
Mark Ellis, executive director of the IBA, said, “The Gatekeepers Project has the potential to be one of the most important undertakings of the IBA since it first issued an international code of ethics in 1956. We need to recognize that the world has changed a lot in the last 70 years, as have the ethical dilemmas facing the profession.”
Sara Carnegie, director of LPRU, and leader of the Project, added, “Rather than wait for negative comments to develop into actions and to avoid forming a position of defensive entrenchment, we want to undertake constructive dialogue and find solutions. We hope that all parties can reach mutually respectful positions with informed understanding of what is at stake.”
Carnegie expanded, “A further project aim is to resolve any perceived or real conflicts that the professional obligations of lawyers may raise in relation to maintaining and upholding the core principles of the profession. It is only by taking a global approach to these issues that we believe the law can adapt successfully and continue its vital role in safeguarding the freedoms and values we aspire to in society at large.”
Questions likely to form part of the consultation include:
• What sort of ethical choices and challenges are lawyers faced with daily?
• Is existing ethical guidance fit for the new challenges facing the profession in the 21st century?
• How can lawyers respond effectively to a changing shift in priority towards broader social concerns and considerations, noting the extensive work undertaken over the last decade to build on the UN Guiding Principles on Business and Human Rights and the IBA’s support of this framework?
• Can a sensible and cohesive position be reached on these issues given the varying political and cultural constraints and influences that exist in different jurisdictions?
• What is going wrong with the present conversation on these issues?
• How can lawyers better engage with outside entities that are in some cases, attacking the profession and its principles?
• Can a truly global response even be achieved?
A series of publications will follow the Project’s consultation phase to include guidance for law firms on how to navigate the ethical minefields posed by modern commercial legal practice and an update or ethical commentary for the latest version of IBA’s International Principles on Conduct for the Legal Profession. Furthermore, in-person and online events, as well as dialogue with international organizations will be undertaken across the globe.
Established in 1947, shortly after the creation of the United Nations, the IBA was born out of the conviction that an organization made up of the world’s bar associations could contribute to global stability and peace through the administration of justice. For additional information, www.ibanet.org.
