Soft law, particularly when devised by lawyers themselves, could help in the pursuit of more ethical legal practice, states a report produced following a roundtable convened by Chatham House, co-hosted by the International Bar Association (IBA) and supported by the Legal Policy & Research Unit (LPRU).
Discussions at the event centred on the challenges facing the profession daily, including whether existing guidance is enough to meet those challenges and how law firm leaders and regulators might, or should, respond to the increasing shift in focus towards a more global, socially conscious set of expectations for the profession.
The participants included lawyers and bar representatives from common law and civil law jurisdictions, parliamentarians, academics and representatives of international organisations, civil society and corporate clients. They assembled to examine the ethical responsibilities and obligations of lawyers when providing legal services. The event formed part of a proactive effort by the IBA to engage with critics of the profession, foster constructive dialogue and find meaningful solutions to real (or perceived) problems, whilst also examining the dangers of undermining the profession's core values.
A broad consensus was reached by the group that guidance produced by the profession on ethical and governance matters would be more effective in promoting positive change than government intervention (and less damaging to the independence of the legal profession). It was also agreed that self-regulation could be more targeted to address specific issues, would be quicker to implement and potentially better devised than externally-imposed regulation. Some participants also argued that internally-devised soft law would help to preserve the independence of lawyers in circumstances where authoritarian governments sought to undermine the rule of law and constrain the legal profession.
Lawyers are facing increasing criticism and pressure from civil society, governments and the media to ensure their professional activities align with wider societal expectations, especially in cases of major global concern such as the climate crisis or facilitation of grand corruption and kleptocracy.
The war in Ukraine has further focused criticism of the legal profession on individuals and entities who have provided services to those associated with the Russian invasion. Fundamental principles of legal representation and regulation, including lawyer-client confidentiality, are under scrutiny as society examines whether such rules are compatible with modern ethical ideals or if they stand in the way of achieving the United Nations Sustainable Development Goals.
Some civil society participants at the roundtable argued that self-regulation failed to address abuses by members of the legal profession in certain situations, for example when dealing with strategic lawsuits against public participation (SLAPPs) and non-disclosure agreements (NDAs). Participants also noted that there have been instances where lawyers have been unhappy with constraints imposed at major law firms and have moved to 'boutique' firms specialising in more 'questionable' legal work. One participant argued that legal regulatory bodies should better calibrate their response to infractions by designing interim penalties to improve lawyers' behaviour. Another participant reasoned that non-lawyers could play a bigger role in the development and oversight of legal codes of practice to ensure that society's broader concerns were taken into consideration. Several participants remarked that if the legal profession failed to take pre-emptive action in dealing with ethical quandaries, governments would be forced to act under the pressure of public opinion.
Alongside the role of soft law in helping the pursuit of more ethical legal practice, participants at the roundtable discussed other key areas of concern including approaches to regulation; the right to legal representation; legal professional privilege and the nature of advice provided. Participants' opinions were divided on some matters, but there was agreement on the following points:
- Different areas of concern require different approaches, and responses must consider the broader context, including evolving international frameworks (such as the United Nations , Organisation for Economic Co-operation and Development and Financial Action Task Force codes) and domestic frameworks for addressing specific problems such as corruption or money laundering. Targeting possible interventions could help to reduce costs and ensure broader applicability to other professions.
- A wider range of participants, including more representatives of clients and civil society, should be involved in discussions to ensure a comprehensive picture is formed of the challenges ahead. These dialogues should be structured in a way that respects the role of national bar councils.
- Further dialogue is needed on the following thematic areas: legal education and training, including the implementation of bar council codes; best practice with regards to the internal ethical governance of law firms; the role of soft law and self-regulation; ensuring effective accountability for the legal profession; and the possible reform of legal professional privilege.
- Applications of the law that should be investigated further include the legal, political and reputational aspects of SLAPPs and ensuring effective human rights due diligence by lawyers on their clients.
The roundtable discussion and resulting Chatham House report form part of the IBA's Ethics and Anti-Corruption initiative , an ongoing effort by the IBA (supported by the LPRU) to examine the role of the profession within wider society and to help clarify the ethical obligations of lawyers when providing legal services. This follows the IBA Council's unanimous adoption of two significant soft law resources on the profession's approach to business and human rights, namely the IBA Updated Guidance Note on Business and Human Rights: The role of lawyers in the changing landscape (adopted in 2023) and IBA Business and Human Rights Guidance for Bar Associations, second edition (adopted in 2024).
Chatham House, London, hosted the IBA LPRU roundtable on 4 July 2024.
