chapter  11
The ethics of employed lawyers
Pages 15

Traditionally, lawyers (like doctors) have operated as sole practitioners or in small partnerships. This has affected such professions’ images of themselves and the way their ethics have been conceived and written. But doctors’ practices are increasing in size and reach and an increasing number are working for hospitals that have become very large and employ a range of professions to achieve their goals. Lawyers are increasingly being employed by large organizations – corporations and, increasingly, the creation of mega practices that are incorporated and even listed on the stock exchange. For some, these problems are exacerbated by the intense competition for clients (not only between law firms but between legal, accounting and mixed firms), and the rise of litigation funders who effectively give instructions to the litigators. In this environment, lawyers will face ‘multiple duties which need to be deciphered and weighed against each other’ and may have to ‘reconcile the ascendance of commercial considerations over older notions of professionalism’.1 As more and more lawyers are employed by large corporations (whether incorporated law firms or directly for large corporations), there is a risk that they and their employers may think they must respond to the corporate values, goals and ethics. However, I would argue that these are merely new versions of old challenges to the profession and that the answers lie in reemphasizing what it is to be a profession and the consequence of how we live our lives as lawyers. The problems of lawyers acting unethically because they are too influenced by those who pay them (particularly when they are employed rather than retained or briefed) are not new. David Luban quotes Macaulay’s essay on Francis Bacon that a lawyer is someone who ‘with a wig on his head and a band round his neck, would do for a guinea what he would otherwise think it wicked and infamous to do for an empire’.2 You may well take issue with this bipolar view of lawyers – and insist that it will not ground an insanity defence before the ethics board. You may well say that the lawyer in private practice is likely to earn a lot more guineas – even taking account of inflation since Macaulay’s time that makes his 1840 guinea worth $1,000 – or Bacon’s time when it represented one fortieth of his annual income.3 Ironically, given the subject matter of this discussion, what the lawyer Macaulay was thinking of was a lawyer with an employer far more powerful

than any modern law firm, litigation funder or multinational corporation. Macaulay was talking about one of the greatest minds of the last millennium,4 who worked as a QC and judge for Elizabeth I and James I/VI. The risks of judges serving their sovereign masters with greater attention to the wishes of their sovereign than the rule of law are long-standing and continue in many jurisdictions. However, they can be, and largely are, managed in modern liberal democracies. This gives hope that lawyers can manage to be ethical lawyers despite working for large employers – government agencies, defence forces, international agencies, multinational corporations and incorporated law firms. Part of the answer lies in conscious and conscientious attention to ethics by the relevant branches of the profession involved. A second part of the answer lies in the institutional context within which those lawyers work including:

• a recognition by the lawyers’ employers that they can only employ lawyers to do what lawyers can ethically do; and,

• a profession that emphasizes, to lawyers and employers alike, that all lawyers only remain lawyers as long as they do what lawyers must do and refrain from doing what they must not.