Is Professional Ethics a joke?
Three brief stories of ascending seriousness on the theme of jokes.
We all, lawyers included, have various defence mechanisms against taking ethics seriously. Lawyers like to pretend that it's too philosophical, that lawyers do law not morality, or – like bad driving - it's other people, not them, that veer off the road. All of these are, at best, only half true.
Story 1. Last week I was at the Industrial Law Society annual conference to speak about lawyers' ethics. To any employment lawyer reading, I encourage you to go: lovely people, great content. I did something like my usual spiel on the Post Office, littered it with jokes, to keep everyone engaged and entertained. The audience was warm and thoughtful, but I wondered afterwards if I had made too light of a very serious topic.
Jokes though, can open our mind to uncomfortable truths. And perhaps we should bear that in mind when I voice some criticism in Story 2.
This is a LinkedIn jokey post from a partner at Womble Bond Dickinson posted yesterday. But for the identity of Mr Barr’s firm, I think this would have been fine, good even.
Lee Castleton, in case you don't know, is the sub-postmaster who claims a WBD partner (in Bond Pearce days, I think) said the Post Office would ruin him if he did not back off from his case against the Post Office. The allegation is denied, but Mr Castleton (and his family) were ruined.
I have no reason to think Mr Barr was involved in any of the Post Office work. So that's not on him.
But the story takes on extra piquancy because part of the Post Office Scandal turns on a conflict-of-interest between a law firm, Cartwright King, and Post Office. That conflict-of-interest, or potential conflict, was spotted by a (now) WBD partner. It should have ended Cartwright King's involvement in the case but got brushed aside. This was based in part on advice other than from WBD; though they and the other adviser should have spotted, I would say, the key point: in my opinion CK could not properly act because there was a very substantial risk of a solicitor own client conflict.
The conflict may explain, in part anyway, why such terrible decisions were taken around the supposed safety of supposed convictions.
So the answer to Mr Barr's question is, very plainly, yes.
One could criticise his joke as bad taste. Indeed, I do. But it also suggests a further problem, that the partners, or at least this partner, does not understand what has or may have, gone wrong in the Post Office case. That one of the firms so involved, should not have reflected already and in some depth on that, and so would spot the immediate difficulty in making such remarks, is concerning. It is worth observing that Mr Barr himself is well-placed to understand these issues. He specialises in professional negligence claims. Perhaps only playing defence, has blinded him to his own offence. He spotted it, though, after Lee's remark. The post has been taken down. I imagine Mr Barr has also offered a fulsome apology.
The third story isn't a laughing matter at all. The BBC have a gruelling scoop about the cover-up of alleged rapes by Al-Fayed. The cover-up includes the unholy trinity of lawyering for such occasions: libel suit, NDA, and the enabled destruction of evidence as part of the settlement of claim(s?). Of course, I have not seen the terms of such agreements, or the relationship between legal work and the destruction of evidence. So we are in raises big questions rather than lawyers be damned territory, at least for now.
The scoop reminds us that case for legislating for NDAs (whether to ban, restrict or regulate their use) is strong, perhaps pushes it to beyond sensible argument. The case for the police and the professional regulators to examine the matters raised by the BBC is equally pressing.
For those who like to frame NDAs or lawyerly zeal as all about rights and the rule of law and the sanctity of contract, about the obligation of lawyers to fearlessly represent their clients and not to judge their story, I encourage everyone else to think of Mr Al Fayed and his team of enablers and laugh. But not, of course, because it's funny.
Such claims are only half the story. It's the other half that needs attention and is neglected.
________________________
I will be developing some of these themes in this year's Hamlyn lectures in Exeter, Leeds, and London. Links to book a free ticket to attend are here. It is open to all. There are plans to provide a recording of the lecture to those unable to attend.
That CK had a conflict of interest seems blindingly obvious to me.
But the PO legal department also had one. They were ultimately responsible for ensuring that prosecutions were done in compliance with the law. They weren't - and this went way beyond the Horizon data issues. They did not recognise that conflict let alone take any steps to mitigate it. Rather, it led to the disastrous decisions and advice the lawyers took and gave their clients, in part motivated by the need to avoid any scrutiny of the failures of the legal function in relation to the investigations and prosecutions functions.
I'm pretty shocked at the ethical standards of the legal profession. There may be value in carrying out a benchmarking activity with the engineering profession, regulated by the UK Engineering Council. This has a Statement of Ethical Principle, jointly developed with the Royal Academy of Engineering, to which all engineering institutions and their members sign up to. I'm proud to have worked as a professional engineer for almost 50 years and, in my experience, the organisations and colleagues I've worked with have operated to a pretty decent ethical standard.