Legal professionals owe a duty to society too
Lawyers should be ready to come under scrutiny when claiming to act in the public interest, a leading law professor at UCL has argued in a new report.
Citing the involvement of lawyers in the Post Office Horizon and Harvey Weinstein scandals, Stephen Mayson’s latest paper takes aim at the regulation of the legal services sector.
Titled Legal Services Regulation: the ‘Meaning of the Public Interest’, the report argues that some lawyers are putting too much focus onto their clients’ interests and losing sight of what it really means to be acting in the public interest.
The paper suggests that a “significant step forward” in addressing this issue would be to subject lawyers to increased scrutiny, warning that they should be ready to “articulate and record a public interest justification for their decisions and actions”.
The public interest is defined in the report as maintaining the fundamentals of society, including the rule of law and the administration of justice, and protecting the legitimate and equal participation of individuals in society.
Mayson, referencing the role of lawyers in the Post Office scandal, argues that “by pursuing a self-interested version of their clients’ interests, these lawyers have forgotten that they are members of a public profession that owes duties to society generally (on whose behalf they are granted their licence to practise)”. He also highlights the “consequential obligation” for lawyers to be accountable for fulfilling their professional duties in the public interest.
It continues by stating that a better understanding could be achieved if lawyers’ decisions could be openly scrutinised (within the proper limits of client confidentiality) when their behaviour is called into question.
Professor Mayson specifically criticises the “inappropriate” or “questionable” use of non-disclosure agreements (NDAs), pointing to their application in high-profile cases such as those involving disgraced Hollywood director Harvey Weinstein and the Post Office scandal.
Other problems identified by Professor Mayson include lawyers “advancing a case that is contrary to the evidence”, “failing to disclose relevant evidence”, and “frustrating the administration of justice”.
“The scale of the injustices, the length of time over which the misconduct occurred, the number of lawyers involved in those occurrences, and the general observation that both the Solicitors Regulation Authority and the Bar Standard Board have noted an increase in reports of lawyers misleading the courts, all strongly suggest a pervasive and persistent turn in the nature of the legal services market, the report states.”
If this behaviour is allowed to persist or become more widespread, the legal sector risks being perceived as a harmful or “noxious market”, Professor Mayson warns.
“A more overt consideration of the public interest should encourage better articulation of the basis for any conclusion or action, as well as the motivation that underpins it, and so enable more informed testing of the assertion made”, it adds.
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