Check Your Integrity: to act or not to act, and the Solicitors’ Principles

Do a solicitor’s professional duties mean they have to work for clients, even if the solicitor believes the matter they are advising on will cause significant material harm?

I have lost count of the times I have heard this question answered in the affirmative: not just by the solicitors doing this work, but by others who have come across that view and assume it to be correct. But is it?

Currently, the Solicitors Regulation Authority (SRA) expects solicitors in England and Wales to comply with seven principles. These are to act:

> in a way that upholds the rule of law, and the proper administration of justice;

> in a way that upholds public trust and confidence in the solicitors' profession;

> with independence;

> with honesty;

> with integrity;

> in a way that encourages equality, diversity and inclusion; and

> in the best interests of each client.

There has been some debate, of late, regarding the relationship between the question at the start of this article and the principle of integrity. A recent example of this is a paper from Professor Steven Vaughan of UCL entitled Moral Remainders: What is the Price of Professional Integrity?

Professor Vaughan demonstrates how difficult it can be to define what professional integrity is (as opposed to identifying its lack in certain circumstances). He also identifies the conundrum that there is frequently a strong element of subjectivity in whether an individual is acting with integrity, but that ultimately this is something that must be assessed objectively. In relation to our question, Vaughan notes that it seems entirely credible to imagine scenarios where exercising integrity could be demonstrated either by acting, or in declining to act.

This seems to me a fair reflection of the current position, in regulatory terms. It flows from this that a lawyer or law firm consistently choosing not to work on certain matters because they genuinely believe their advice will enable climate heating or significant environmental harms, for example, would not be held in breach of the principle of integrity. This would be particularly so if they were transparent in their dealings with clients and the public that this is their stance on the issue.

Similarly, whilst it would not be regarded as a matter of professional integrity for a lawyer or firm to act on a matter causing material environmental harm where the client was doing so within the current law, they should be very clear with their clients generally and the public at large that this is what they do. In particular, they should be very careful about claims to be a sustainable, or responsible, or purpose led business. Such claims are disingenuous when the inference is that the claims apply to their business taken as a whole. If a significant element of your practice is focused on projects generating high emissions or ecological destruction, a handful of green projects will not be enough to justify those claims. It is not an issue of professional integrity (yet) to do such work, but it may be to ignore it whilst boasting about being sustainable. That risks not only challenges of greenwashing, but also throws your professional integrity and/or honesty into question.

Many who claim they have no discretion about whether or not to act in such circumstances do not base their position on the issue of integrity, but rely on the principle of access to justice (often lobbing in reference to the rule of law for good measure). As The Law Society’s Guidance on the Impact of Climate Change on Solicitors states, “the principle of access to justice and the right to legal representation are fundamental aspects of our legal system”. However, it goes on to say, “solicitors are not obliged to provide advice to every prospective client that seeks it. Solicitors have wide discretion in choosing whether to accept instructions. Climate-related issues may be valid considerations in determining whether to act.”

This must be right, both because it is certainly the case that the firms acting for the largest emitters of greenhouse gases and destroyers of natural habitats do not exercise an open door policy offering access to their legal services to all (they are limited to the fortunate few who can afford to pay their hourly rates); and because if an individual lawyer or firm declines an instruction from a client due to the material harm they will be contributing to, that client will easily access legal representation elsewhere. Again, it is very hard to conceive that any lawyer or firm would be found to be in breach of the principle relating to the proper administration of justice if they declined to act for one of these clients.

In other words, it is not that a firm must accept such an instruction, it is that they can choose to do so. And, once again, I would argue that to seek to hide behind the obfuscation of saying it is not a choice could be regarded as demonstrating a lack of integrity, seeking to deflect criticism or quell debate by presenting a false position.

Messages

What would I like stakeholders to take away from this?

For the SRA: Looking at the SRA Principles through a wider lens, there are legitimate questions about how healthy the rule of law and access to justice are in our society today. We should not be complacent about this and should welcome any efforts to ensure these are principles we only pay lip service to when convenient.

Similarly, a larger piece of work is long overdue in terms of reassessing the appropriate balance between acting in each client’s interests and acting in one’s clients’ collective interests and the interrelation of those two in a deeply interdependent world. This, surely, is something which could contribute to the principle of upholding public trust and confidence in the solicitors' profession. It goes to the very core of the role of law as a critical element of our social infrastructure and aligning law and justice.

In the meantime, whilst it is not necessary to revisit the SRA Principles, it would be a great service not just to the profession but to the public at large (also touching on that trust and confidence issue), for the SRA to issue clarificatory guidance on this question of the discretion around when to act and what to say about the exercising of that discretion. This should remove any doubt that whilst there may be different positions lawyers and law firms may adopt in relation to the sort of matters they seek instructions on today, they should (a) be absolutely clear in their communications with clients and the public at large what their position is on making such decisions;  (b) reflect this in any claims about their positioning in ESG or related terms more widely; and (c) not make misleading statements blaming their positioning erroneously on professional obligations. To do otherwise may be what constitutes a breach of those obligations.

For the firms: you don’t need to wait for that guidance. If you want to take on that work, don’t hide behind claims to have no choice because of your professional duty. It suggests either a lack of intellectual rigour, or a desire to avoid an open discussion about the genuine challenges around such decisions. It also carries the inference for other lawyers that they too should not be exercising their own judgement independently but should fall in line with your way of thinking because they have to.

Remember, context is all. When we are deep in a vortex of crises, maybe what seemed reasonable last year is less so this, and may soon be unconscionable. Don’t just check your privilege, check your integrity.

For clients: to butcher Kennedy, ask not (only) what your lawyer can do for you; ask what your lawyer is doing for and to the planet we are all a part of. It will affect you.