IBA seeks to restate lawyers' ethical duties in society
The International Bar Association is embarking on a project to examine the professional role of lawyers as ethical gatekeepers within wider society.
Led by the IBA’s Legal Policy & Research Unit ("LPRU"), the Gatekeepers Project aims 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 criticising the profession, while also explaining the dangers behind any undermining of the core values of the legal profession.
It comes in response to criticisms from a number of sources, most recently in relation to legal services provided to individuals and entities associated with Russia’s invasion of Ukraine. These attacks follow 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 Nations' Sustainable Development Goals.
They 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) behaviour of their clients. In some cases, it gives rise to deeper questions 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 their professional work of providing independent legal advice.
The project will begin with a consultative exercise across the IBA membership, to invite input from bar associations, law societies, law firms and individual practitioners. Among other questions it will seek to find out what sort of ethical choices and challenges are lawyers faced with daily; whether existing ethical guidance is fit for the challenges of the 21st century; and how can lawyers respond effectively to a changing shift in priority towards broader social concerns and considerations, having regard to the UN Guiding Principles on Business and Human Rights and the IBA’s support of this framework.
IBA President Sternford Moyo 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."
Referring to the IBA's Statement in Defence of the Principle of Lawyer-Client Confidentiality, he added: "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."
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.
"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."