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What does it mean for lawyers to uphold the rule of law? Kenta Tsuda, Steven Vaughan and Richard Moorhead investigate
In the summer of 2023, the Legal Services Board (LSB) commissioned a report exploring the professional ethical dilemmas relevant to the obligation in England and Wales on lawyers to uphold the rule of law in everyday practice. The following article presents some key themes from the full report by Professor Richard Moorhead, Professor Steven Vaughan and Kenta Tsuda.
In July 2023, Dan Neidle – the former Clifford Chance tax partner turned investigative journalist and commentator – published a set of blogs about an ‘Outrageous £50m Tax Scheme That Was KC-Approved’. Neidle claimed that advice was given, apparently on the basis of untenable factual assumptions, for the purpose of enabling the marketing of a fraudulent tax scheme. As well as the marketing advantage, the advice was allegedly aimed at protecting those involved against prosecution. The hope was said to be that such legal advice would persuade third parties to sign up to the tax scheme, on the basis a KC had advised the promoters of its validity (and in spite of the investors being warned that they could not rely on the opinion), and that such an opinion would also provide a defence against prosecution for tax offences. There were, according to Neidle’s analysis, ‘unstated assumptions which the KC should have realised were fictional’, claims that the KC ignored ‘red flags’ for evasion or fraud, and a view that, ‘the entire opinion depended on … astonishing omissions of caselaw and authority’.
This case, like many others, raises serious, complex, and important questions about what it means for a barrister to uphold the rule of law; about how those in practice manage their independence and integrity and exercise their judgement. Perhaps none more acute than the Post Office Scandal. In the second half of last year, lawyers including barristers began to give evidence to the Post Office Inquiry into the failings of the Horizon IT system, now widely regarded as the widest miscarriage of justice in England and Wales. In the April issue of Counsel, Flora Page reflected on why so many lawyers failed to hold the ethical line.
Our work for the LSB was designed to surface examples like these and to take forward a critical debate on what a professional commitment to the rule of law actually looks like.
Under the Legal Services Act 2007, legal-services regulators must pursue the objective of ‘supporting the constitutional principle of the rule of law’ in their oversight of the profession. For barristers, the Handbook of the Bar Standards Board (BSB) contains 10 Core Duties which ‘underpin [the BSB’s] entire regulatory framework and set the mandatory standards that all those [it] regulate[s] are required to meet’. Unlike four of the other frontline legal services regulators (including the Solicitors Regulation Authority), the rule of law is not mentioned expressly in any of the BSB’s Core Duties. Instead, the Duties instead seem to apply rule of law concerns – which we elaborate below – to particular domains of lawyerly conduct, for example, via Core Duties 1 (the barrister’s duty to the court and to the administration of justice), 4 (the maintenance of professional independence), 5 (maintenance of public trust and confidence in the profession), 9 (openness with regulators), and 10 (compliance with the law). Importantly, Core Duty 1 takes precedence over Core Duty 2, the duty to act in the best interests of each client.
The concept of the ‘rule of law’ is heavily contested and not defined in the LSA 2007, but there is agreement on some essential elements. At the very least, the rule of law requires that laws are made in ways prescribed by the relevant legal system, that no one is above the law, and that everyone can access the law’s protections. Where the rule of law exists, it sustains, as Brian Tamanaha puts it, a sense ‘among the populace of a well-organized background structure for activities,’ with confidence that ‘legal redress exists should things go wrong.’ Judges, public officials, and legal scholars may, and do, disagree about how the elements of the rule of law translate into legal institutions. But, while debates continue, we can nevertheless reach a number of conclusions about how lawyerly conduct is or is not supportive of the rule of law based on the concept’s essential agreed-upon elements. It is to those conclusions that we now turn.
To support confidence in the efficacy of the legal system, it is not enough for a lawyer merely to avoid transgressing the letter of the law. Rather, it is incumbent upon lawyers to use their expertise to make choices that affirmatively cultivate robust and reliable legal institutions.
This affirmative responsibility of lawyers is especially important where there is uncertainty in the law: whether before a court or in the context of advice to a client, the lawyer cannot always disappear behind clear, determinate rules. Lawyers must at times interpret the law, knowing that others (a court, a client, third parties) might rely upon the lawyer’s input and dispose of a case or arrange their affairs accordingly. Active choices are unavoidable, and the lawyer must make them in a manner that is consistent with the functioning of collective legal institutions. As such, there is a need to guard against the exploitation of legal uncertainty bleeding into misrepresentation of the facts and an inappropriately self-serving view of the law.
Relatedly, exercises of lawyerly independence are central to the rule of law. As Lord Hoffman put it regarding litigation, the lawyer’s loyalties are ‘divided.’ On one hand, the lawyer owes duties to the client; but the lawyer also has (as we set out above) duties to the legal system, to the courts, to third parties, and to the integrity of the law itself.
Independence means taking responsibility for the realities that follow from one’s arguments or advice: clients may justify actions on the basis that a lawyer gave a green light for some particular action, even if the advice entails a legal interpretation that manipulates, or opportunistically deviates from the substance of a legal rule (so-called ‘creative compliance’). Understanding these consequences, the lawyer must have an eye to the client’s interests, but also fidelity to the law’s letter and spirit as one understands it.
Lawyers support the rule of law by means of important duties they owe to public legal institutions, such as the courts. The common law system develops via courts, resolving legal claims as presented by disputants; to block access to this system, or otherwise hobble its effectiveness frustrates the very development of the law.
To uphold the system of laws, lawyers thus have duties to protect others’ access to justice and the effectiveness of court process. And these duties may be in tension with zealous advocacy for a client. For example, the pursuit of a client’s Strategic Lawsuit Against Public Participation (SLAPPs) uses court procedures to ‘discourage scrutiny of matters in the public interest,’ and thereby undermines the rule of law. But even less extreme behaviour may undermine the rule of law. Practices such as polishing evidence, tactical omissions of evidence, failures to correct obvious misunderstandings, and evidentiary gamesmanship can divert the court process, increase the likelihood of erroneous rulings (or settlement on unfounded bases), or otherwise raise associated costs in ways that inhibit access to the courts and the expeditious resolution of disputes. Forms of lawfare and the filing of vexatious claims also exploit court procedures in ways that unfairly damage opponents, strategically exhaust their resources, and deny access to the law, or otherwise impede the efficient operation of the court.
A lawyer’s duties to support the rule of law extend outside of the courts. Lawyering outside of the litigation context – for example, providing legal advice or opinions to clients – can advance forms of private ordering that are exploitative, and, often based on unequal power, allow clients to harm counterparties in ways that bring the legal system into disrepute.
An example might be advising on the use of non-disclosure agreements so as implicitly to enable a client’s serially abusive conduct. Outside of the courts, without a third-party arbiter, and shielded from scrutiny by confidentiality or legal privilege, lawyers must be even more reflective as to their special roles as agents of the rule of law.
Some might think it both ideal and important to be able to recite precise rules of conduct, with a circumscribed list of practices to be avoided, in fidelity to the lawyer’s rule of law duties. Lawyers should realise, however, that this is not always possible, and here is an instance in which one’s duties can only be established by the balanced application of the professional conduct rules and other law to the particular facts; ultimately a matter of judgement. The themes highlighted above bring attention to areas of tension that lawyers might carefully consider when making particularised judgements.
Moreover, it is important that lawyers reflect on the implications of their professional choices, and contemplating the duties that they owe not only to clients but also to legal institutions and the broader legal culture. In the work we have undertaken for the LSB, we have argued for a balanced assessment of what is entailed by thinking of lawyers’ behaviour in terms of the rule of law. It is not simply a question of ‘my client’s rights’ uber alles.
Our work also offers a challenge to those in practice to take greater responsibility and ownership of the work that they do and the agency they have. Problems of mutual irresponsibility can and do arise: where the lawyer merely advises and the client decides; and where the client says the lawyer advised them they could do it. No one is then accountable for exceptionally important decisions. Asking lawyers to be reflective of their rule of law obligations does not involve second-guessing the justice of every situation, but it does involve a willingness to accept that the rule of law demands integrity in its application.
References and further information
What does it mean to uphold the rule of law? A report for the Legal Services Board, Richard Moorhead, Steven Vaughan and Kenta Tsuda, October 2023
‘The role of lawyers in the Post Office scandal’, Flora Page, Counsel, April 2024
Bar Council’s confidential Ethical Enquiries Service for barristers: Call the Ethical Enquiries line on 020 7611 1307 (open 09:15-17:15 Monday-Friday) or email: ethics@barcouncil.org.uk. The Ethics & Practice Hub is the Bar Council’s dedicated online library of ethics documentation: www.barcouncilethics.co.uk
Kenta Tsuda is completing his doctoral thesis at the Faculty of Laws, University College London.
Steven Vaughan is Professor of Law and Professional Ethics at the Faculty of Laws, University College London, and a globally recognised expert on lawyers, ethics, and legal services.
Richard Moorhead is Professor of Law and Professional Ethics at the University of Exeter, founder of the lawyerwatch.blog, and a member of the Horizon Compensation Advisory Board.
In the summer of 2023, the Legal Services Board (LSB) commissioned a report exploring the professional ethical dilemmas relevant to the obligation in England and Wales on lawyers to uphold the rule of law in everyday practice. The following article presents some key themes from the full report by Professor Richard Moorhead, Professor Steven Vaughan and Kenta Tsuda.
In July 2023, Dan Neidle – the former Clifford Chance tax partner turned investigative journalist and commentator – published a set of blogs about an ‘Outrageous £50m Tax Scheme That Was KC-Approved’. Neidle claimed that advice was given, apparently on the basis of untenable factual assumptions, for the purpose of enabling the marketing of a fraudulent tax scheme. As well as the marketing advantage, the advice was allegedly aimed at protecting those involved against prosecution. The hope was said to be that such legal advice would persuade third parties to sign up to the tax scheme, on the basis a KC had advised the promoters of its validity (and in spite of the investors being warned that they could not rely on the opinion), and that such an opinion would also provide a defence against prosecution for tax offences. There were, according to Neidle’s analysis, ‘unstated assumptions which the KC should have realised were fictional’, claims that the KC ignored ‘red flags’ for evasion or fraud, and a view that, ‘the entire opinion depended on … astonishing omissions of caselaw and authority’.
This case, like many others, raises serious, complex, and important questions about what it means for a barrister to uphold the rule of law; about how those in practice manage their independence and integrity and exercise their judgement. Perhaps none more acute than the Post Office Scandal. In the second half of last year, lawyers including barristers began to give evidence to the Post Office Inquiry into the failings of the Horizon IT system, now widely regarded as the widest miscarriage of justice in England and Wales. In the April issue of Counsel, Flora Page reflected on why so many lawyers failed to hold the ethical line.
Our work for the LSB was designed to surface examples like these and to take forward a critical debate on what a professional commitment to the rule of law actually looks like.
Under the Legal Services Act 2007, legal-services regulators must pursue the objective of ‘supporting the constitutional principle of the rule of law’ in their oversight of the profession. For barristers, the Handbook of the Bar Standards Board (BSB) contains 10 Core Duties which ‘underpin [the BSB’s] entire regulatory framework and set the mandatory standards that all those [it] regulate[s] are required to meet’. Unlike four of the other frontline legal services regulators (including the Solicitors Regulation Authority), the rule of law is not mentioned expressly in any of the BSB’s Core Duties. Instead, the Duties instead seem to apply rule of law concerns – which we elaborate below – to particular domains of lawyerly conduct, for example, via Core Duties 1 (the barrister’s duty to the court and to the administration of justice), 4 (the maintenance of professional independence), 5 (maintenance of public trust and confidence in the profession), 9 (openness with regulators), and 10 (compliance with the law). Importantly, Core Duty 1 takes precedence over Core Duty 2, the duty to act in the best interests of each client.
The concept of the ‘rule of law’ is heavily contested and not defined in the LSA 2007, but there is agreement on some essential elements. At the very least, the rule of law requires that laws are made in ways prescribed by the relevant legal system, that no one is above the law, and that everyone can access the law’s protections. Where the rule of law exists, it sustains, as Brian Tamanaha puts it, a sense ‘among the populace of a well-organized background structure for activities,’ with confidence that ‘legal redress exists should things go wrong.’ Judges, public officials, and legal scholars may, and do, disagree about how the elements of the rule of law translate into legal institutions. But, while debates continue, we can nevertheless reach a number of conclusions about how lawyerly conduct is or is not supportive of the rule of law based on the concept’s essential agreed-upon elements. It is to those conclusions that we now turn.
To support confidence in the efficacy of the legal system, it is not enough for a lawyer merely to avoid transgressing the letter of the law. Rather, it is incumbent upon lawyers to use their expertise to make choices that affirmatively cultivate robust and reliable legal institutions.
This affirmative responsibility of lawyers is especially important where there is uncertainty in the law: whether before a court or in the context of advice to a client, the lawyer cannot always disappear behind clear, determinate rules. Lawyers must at times interpret the law, knowing that others (a court, a client, third parties) might rely upon the lawyer’s input and dispose of a case or arrange their affairs accordingly. Active choices are unavoidable, and the lawyer must make them in a manner that is consistent with the functioning of collective legal institutions. As such, there is a need to guard against the exploitation of legal uncertainty bleeding into misrepresentation of the facts and an inappropriately self-serving view of the law.
Relatedly, exercises of lawyerly independence are central to the rule of law. As Lord Hoffman put it regarding litigation, the lawyer’s loyalties are ‘divided.’ On one hand, the lawyer owes duties to the client; but the lawyer also has (as we set out above) duties to the legal system, to the courts, to third parties, and to the integrity of the law itself.
Independence means taking responsibility for the realities that follow from one’s arguments or advice: clients may justify actions on the basis that a lawyer gave a green light for some particular action, even if the advice entails a legal interpretation that manipulates, or opportunistically deviates from the substance of a legal rule (so-called ‘creative compliance’). Understanding these consequences, the lawyer must have an eye to the client’s interests, but also fidelity to the law’s letter and spirit as one understands it.
Lawyers support the rule of law by means of important duties they owe to public legal institutions, such as the courts. The common law system develops via courts, resolving legal claims as presented by disputants; to block access to this system, or otherwise hobble its effectiveness frustrates the very development of the law.
To uphold the system of laws, lawyers thus have duties to protect others’ access to justice and the effectiveness of court process. And these duties may be in tension with zealous advocacy for a client. For example, the pursuit of a client’s Strategic Lawsuit Against Public Participation (SLAPPs) uses court procedures to ‘discourage scrutiny of matters in the public interest,’ and thereby undermines the rule of law. But even less extreme behaviour may undermine the rule of law. Practices such as polishing evidence, tactical omissions of evidence, failures to correct obvious misunderstandings, and evidentiary gamesmanship can divert the court process, increase the likelihood of erroneous rulings (or settlement on unfounded bases), or otherwise raise associated costs in ways that inhibit access to the courts and the expeditious resolution of disputes. Forms of lawfare and the filing of vexatious claims also exploit court procedures in ways that unfairly damage opponents, strategically exhaust their resources, and deny access to the law, or otherwise impede the efficient operation of the court.
A lawyer’s duties to support the rule of law extend outside of the courts. Lawyering outside of the litigation context – for example, providing legal advice or opinions to clients – can advance forms of private ordering that are exploitative, and, often based on unequal power, allow clients to harm counterparties in ways that bring the legal system into disrepute.
An example might be advising on the use of non-disclosure agreements so as implicitly to enable a client’s serially abusive conduct. Outside of the courts, without a third-party arbiter, and shielded from scrutiny by confidentiality or legal privilege, lawyers must be even more reflective as to their special roles as agents of the rule of law.
Some might think it both ideal and important to be able to recite precise rules of conduct, with a circumscribed list of practices to be avoided, in fidelity to the lawyer’s rule of law duties. Lawyers should realise, however, that this is not always possible, and here is an instance in which one’s duties can only be established by the balanced application of the professional conduct rules and other law to the particular facts; ultimately a matter of judgement. The themes highlighted above bring attention to areas of tension that lawyers might carefully consider when making particularised judgements.
Moreover, it is important that lawyers reflect on the implications of their professional choices, and contemplating the duties that they owe not only to clients but also to legal institutions and the broader legal culture. In the work we have undertaken for the LSB, we have argued for a balanced assessment of what is entailed by thinking of lawyers’ behaviour in terms of the rule of law. It is not simply a question of ‘my client’s rights’ uber alles.
Our work also offers a challenge to those in practice to take greater responsibility and ownership of the work that they do and the agency they have. Problems of mutual irresponsibility can and do arise: where the lawyer merely advises and the client decides; and where the client says the lawyer advised them they could do it. No one is then accountable for exceptionally important decisions. Asking lawyers to be reflective of their rule of law obligations does not involve second-guessing the justice of every situation, but it does involve a willingness to accept that the rule of law demands integrity in its application.
References and further information
What does it mean to uphold the rule of law? A report for the Legal Services Board, Richard Moorhead, Steven Vaughan and Kenta Tsuda, October 2023
‘The role of lawyers in the Post Office scandal’, Flora Page, Counsel, April 2024
Bar Council’s confidential Ethical Enquiries Service for barristers: Call the Ethical Enquiries line on 020 7611 1307 (open 09:15-17:15 Monday-Friday) or email: ethics@barcouncil.org.uk. The Ethics & Practice Hub is the Bar Council’s dedicated online library of ethics documentation: www.barcouncilethics.co.uk
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