Director, Legal Policy & Research Unit
International Bar Association
Jane Ellis is Director, Legal Policy & Research Unit, International Bar Association. LPRU works on issues relevant to the legal profession including anti-corruption. The IBA is the global voice of the profession and influences the development of international law reform.
Lawyers, corruption and the rule of law
Lawyers must conduct their business in accordance with professional obligations. These include maintaining the highest standards of honesty, integrity and fairness towards the court and treating the interests of their clients as paramount, subject always to their duty to the court and the interests of justice.
It is at the intersection of a lawyer’s duty to both the court and to his or her client that conflict can arise. It is not possible to ‘balance’ these two duties if it means compromising the lawyer’s duty to the court. If a client wants their lawyer to act in a way that is contrary to the lawyer’s duty to the court, then the lawyer must refuse to do so.
There are many lawyers, however, who consider that their first duty is to their client. This change in view is increasing as law firms seek to increase profitability and become more business oriented in their drive to expand the market for legal services.
This shift in view manifests itself quite markedly in how lawyers provide advice. Lawyers are advisors, intermediaries and facilitators in complex transactions. Corruption does not occur in all transactions but there is always a risk that it can occur. While lawyers are not necessarily always directly involved in any such corrupt conduct (responses to a recent survey conducted by the IBALPRU suggest less than 2% of lawyers admit to being knowingly involved in any such conduct), there is a concern that some are prepared to turn a ‘blind eye’ to potentially corrupt conduct if they believe it is to their and their client’s benefit to do so.
For those lawyers who believe their first duty is to their client, in their view this is the right approach. Those lawyers who know their first duty is to the court, such conduct is indefensible.
It is important that lawyers everywhere recall that their first duty is to the court and the interests of justice. This means lawyers must refuse instructions to act in any way that is questionable or outright illegal. It also means lawyers must be prepared to give their clients advice that is ‘frank and fearless’ to ensure, in turn, that they do not engage in conduct that is questionable or illegal.