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Richard Moorhead of the UCL Centre for Ethics and Law believes the ethics of capitalism to be under scrutiny Photograph: Graeme Robertson
The uncomfortable performance of former Times legal manager Alastair Brett at the Leveson inquiry last month — during which he admitted that an email he had sent in relation to the NightJack hacking affair had been "oblique to an extent which is embarrassing" — made for nails-on-a-blackboard viewing.
But Professor Richard Moorhead, the chair elect of the UCL Centre for Ethics and Law, didn't see it as sign of individual failing. Instead, he believes the lawyers involved in the hacking scandal are victims of a broader culture that compelled them to walk "a dangerous and sometimes untenable path because commercially and culturally they were disposed to defend the client to the death."
Linking Hackgate to the banking crisis which preceded it, Moorhead views the ethics of capitalism as a whole to be under scrutiny. "Lawyers are one set of professional actors guarding those ethics. They have not always done a good job, and the broader culture of clientelism needs a long hard look," he adds.
What Moorhead and UCL Centre for Ethics and Law director Sylvie Delacroix want to see is the creation of a new culture where lawyers stop focusing on complying with the minimum they can get away with as they promote their paymasters' interests, and instead start doing what is "right".
"The gap between personal morality and professional ethics has grown wide in recent years. And as we have seen, conforming to professional standards isn't always enough," says Delacroix. To illustrate her point, she gives an example of City lawyers charged with drafting contracts involving the type of complex financial instruments that contributed towards the 2008 crash. "Lawyers treated these instruments at face value, when some may have known of the risks they posed. Of course, this was in accordance with their professional standards."
But how do you get lawyers, who are under more pressure than ever to tell their cash-strapped clients what they want to hear, to do what's "right"?
"You promote space for discussion," responds Delacroix. "That's what doctors who have to make very hard ethical decisions do."
Most agree that the outgoing regime of tick-box regulation governing lawyers' behaviour isn't conducive to fostering the sort of dialogue Delacroix would like to see. But there is optimism that the new "outcomes-focused" regulation being brought in by the Solicitors Regulation Authority (SRA) could, if implemented well, spur more debate on ethics between practitioners. Certainly, by placing the responsibility on lawyers to get the right outcomes for their clients - including longer term outcomes, such as avoiding getting dragged in front of public inquiries - the new regime is likely to increase the incentive for note-sharing in advance of the taking of big decisions.
There is hope, too, that a trend in favour of teaching ethics more rigorously at law school will contribute towards the development of a better balance between serving the client and looking out for the public interest. In January last year, Yale Law School launched an "ethics bureau", and earlier this year two Nottingham Law School academics gave an indication that we could soon see something similar on these shores when they called for an increased emphasis to be placed on ethics and values in the law curriculum.
Although Delacroix expresses concern that the "conditioning" of students to maximise the likelihood of them behaving in a certain way could discourage them from taking personal responsibility in the resolution of ethical dilemmas, she acknowledges that putting ethics higher up the legal education agenda should have a broadly positive effect.
Will these developments be enough to equip lawyers to deal with a changing legal environment, where new rules allowing non-lawyers to own law firms brought in under the Legal Services Act (LSA) are set to throw up a host of novel ethical conundrums?
No one knows. But there's little doubt that members of the legal profession will need to be on their toes if they are to maintain the public's confidence in navigating the kind of scenario envisioned under the new rules by IBM general counsel Robert Weber.
"Imagine discovering that the law firm you hired to defend your company in a business dispute is partly owned by private investors," Weber wrote in Businessweek in September in a piece urging the US not to follow the UK down a path that allows external investment into law firms.
"And those investors also have financial stakes in the company that is suing you - and perhaps even stakes in the law firm representing your adversary. Would you rest easy, assured that the firm will still represent your best interests in the courtroom?"
Then there is the issue of whether or not lawyers' ethical duties extend to the amount of pro bono] hours they do — a future hot topic, surely, once the cuts to the legal aid budget are made. Although the obligation for lawyers to help those in need free of charge is well enshrined in British culture, its origins dating back to the Magna Carta, Alasdair Stewart of pro bono charity LawWorks is concerned that LSA-driven blurring between business and law could see pro bono taken less seriously by lawyers in the future — in spite of the cuts. "Ultimately," adds Stewart, pinpointing the issue on which the wider lawyers' ethics debate may turn over the next few years, "it will depend on whether lawyers chose to define themselves as business people or professionals."
Alex Aldridge is the editor of LegalCheek.com