“The law is a public profession, notwithstanding you work for a big multinational company,” observes Sara Carnegie, Legal Director at the International Bar Association (IBA), during a recent Platforum9 session on legal ethics. As the legal profession grapples with evolving ethical challenges in an increasingly interconnected world, Carnegie and her colleague George Artley bring fresh insights to this critical discussion.

The Origins of Current Ethical Challenges

The scrutiny of legal ethics has intensified in recent years, driven by several factors. Reports from international bodies like the UN and OECD have criticized the legal profession for potentially enabling illicit financial flows. High-profile revelations like the Pandora Papers have highlighted law firms’ roles in controversial practices, while events like Russia’s invasion of Ukraine have forced firms to reconsider their client relationships.

“Lawyers have always been criticized,” notes Artley, a former corporate lawyer turned IBA deputy director. “What has changed is the business dynamic environment in which law operates and the international nature of law.” This transformation has brought the profession into a sphere of international NGO scrutiny previously reserved for governments and major corporations.

The Regulatory Landscape

The regulation of legal ethics presents a complex picture. While international codes exist through organizations like the IBA and UN, they aren’t binding. Instead, regulation occurs through a patchwork of jurisdictional authorities, often with varying approaches to enforcement.

Carnegie points to a particularly relevant concept in England and Wales, where the Solicitors Regulation Authority positions public interest as a “North Star” that should guide lawyers when conflicts arise with client interests. However, this understanding isn’t universally shared across jurisdictions, with many still prioritizing client interests above all else.

The Culture Challenge

Both experts argue that regulation alone isn’t sufficient to address ethical challenges. “Yet more regulation might not be the answer because lawyers are very good at essentially getting around regulations or finding loopholes,” Artley explains. Instead, they advocate for cultural change, beginning with enhanced education at both the law school level and throughout practitioners’ careers.

Richard Moorhead’s recent Hamlin lectures highlight how many ethical missteps occur not from malicious intent but from systemic pressures and a lack of clear ethical framework. “A lot of these people who end up in these difficult situations make decisions, not because they’re fundamentally bad or dishonest, but because the system and the pressure and the lack of understanding leads them into a pathway of bad decision making,” Carnegie explains.

The Client Factor

A significant shift may come from clients themselves. As businesses increasingly focus on ESG considerations and sustainability, they may demand more ethical approaches from their legal advisors. However, this creates a challenge for firms: who will be first to take a strong ethical stance if it means potentially losing business to competitors?

“It’s about the what, not the who,” Carnegie emphasizes, clarifying that the goal isn’t to prevent lawyers from representing certain clients, but rather to ensure that the advice given considers potential harmful outcomes.

Looking Ahead

The IBA is working to build international consensus on ethical standards, though progress has been challenging. Recent attempts to update the IBA’s international principles revealed unexpected divisions, particularly between common law and civil law jurisdictions regarding the role of public interest.

However, dialogue is improving. A recent Chatham House event brought critics and defenders of the profession together, resulting in some common ground, particularly regarding the value of self-regulation. As technology increases transparency and enables better resource sharing, there’s hope for more consistent ethical standards across jurisdictions.

The message is clear: while the challenge of maintaining ethical standards in an increasingly complex legal landscape is significant, it’s essential for preserving the profession’s privileged position in society. As Artley concludes, “If you’re just going to operate as a business like any other business, and you’re just going to sniff out the biggest profits, then well, that’s not the same thing as being a profession.”