As Abraham Lincoln once stated, ‘if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. This statement suggests questions of morality have long been at the heart of the legal profession. The relationship between the client and the lawyer, at the expense of the lawyer’s morality, is often considered a primary concern of the profession, following its rise to popularity under the standard conception during the 20th century. As Rodell argues, lawyers act selfishly - prioritizing their own interests over their broader obligations. Since then, the SRA Codes of Conduct and Legal Services Act 2007 (‘LSA’) have outlined a lawyer with responsibility, under their professional obligations, to the ‘wider’ public. This essay will begin by addressing the core provisions of the LSA and SRA Standards and Regulations in their attempts to guide a lawyer’s professional conduct. It will then explore the standard conception, before narrowing in on the moral dilemma of acting for your client or for the public good. This ethical predicament can be examined through various examples, including tax avoidance schemes, money laundering, and pro-bono work. However, this essay will be limited to an examination of the issues surrounding non-disclosure agreements (‘NDAs’), notably those associated with Harvey Weinstein.
The LSA made numerous changes to the legal sector. One particular change has meant legal professionals must now be regulated by an independent regulator, such as the SRA. The LSA aimed to generate greater public confidence in lawyers and ensure lawyers abide by the rule book; for solicitors, this means the SRA Standards and Regulations, which contains the SRA Principles and Codes of Conduct for Solicitors. The SRA Standards and Regulations encompass what is expected of solicitors, for the benefit of clients and the wider public. Since the LSA, the SRA Codes have moved away from rules-based regulations toward outcome-based regulations, which now encourage lawyers to consider the consequences of their actions when determining whether it is ethically appropriate. This can be largely problematic as it leaves many decisions open to an individual’s discretion. The seven, essential Principles, encompassing ‘the fundamental tenets of ethical behavior’, highlight the numerous ethical obligations owed by lawyers. These obligations owed to the court, client, and general public can often compete, placing priorities under strain and resulting in lawyers acting in immoral and unjust ways. In the context of NDAs, the balancing act of duties to the client and duties to the public, namely in ensuring the administration of justice, and upholding the public trust, clearly creates an ethical dilemma for lawyers. With many regarding solicitors as the ‘gatekeepers of NDAs’, and with the code of conduct remaining ‘hopelessly silent on the problems of commercial practice’, the ethical dilemmas of NDAs appear to fall squarely on the head of the individual.
The ethical dilemmas faced by legal professionals depend on your interpretation of the legal role. Boon suggests that debates around legal immorality should be viewed through the standard conception, where the actions of lawyers are based on three principles. Under the first pillar, partisanship, lawyers seek to protect or advance their client’s interests. This is based on the American Bar Association Model, whereby attorneys are required to act ‘zealously’ in order to do everything possible to advance their client’s rights unless clearly prohibited by law. The level of commitment to a client ranges from ‘hyper-zeal’ and ‘fearlessly advocacy’, to ‘mere zeal’ where a lawyer does not have to pursue every possible tactic. The second principle is neutrality, whereby a lawyer will ignore their own personal moral view of their client’s position and act impartially, thus allowing the client to pursue their own objectives. In observing these principles, lawyers are absolved of personal moral responsibility for the consequences of their actions (‘non-accountability). Therefore, in zealously defending, ignoring morality, and bearing no consequential responsibility for their client’s actions, the ethics of lawyers are easily problematized.
The focus on the standard conception has acted to justify the alignment of lawyer-client interests. The pressure consequently faced by corporate lawyers to do their client’s bidding inevitably strains their professional commitment to the rule of law and emphasizes the ‘anaesthetization of moral conscience’, endorsed by the standard conception. Within the context of NDAs, solicitors can draft legal clauses to cover up harmful activities in their zealous pursuit of client interests and can, simultaneously, refute any accountability for their actions. Wendel argues that many commentators prioritize a lawyer’s fidelity to their client to the exclusion of other responsibilities, such as to wider society and the justice system. Just as a client needs to trust their lawyer, society needs to trust the legal profession to abide by the law and not avoid or breach regulations. Lawyers acting in accordance with the standard conception have been critiqued as allowing attacks on the public good, notably when powerful individuals use firms to silence reports of sexual assault. It is argued the standard conception encourages dishonesty and fails to recognize the importance of promoting societal good, as emphasized by the first three SRA Principles which refer to duties to the broader good as opposed to the client. In contrast, Shaffer and Cochran adopt a strongly moralistic view of the legal profession, understanding it as one where clients are seen as collaborators in producing good, with the client and lawyer helping each other to become better people. Therefore, the lack of unity between accounts of lawyers’ duties accentuates the complicated nature of a lawyer’s relationship with their client and also the wider public.
According to Wendel, it is vital to ensure lawyers owe a duty to the general public as well as to their clients. However, the SRA Principles lack guidance as to their application and context. In particular, neither the SRA nor LSA specifically defines ‘public interest, rather guidance remains ‘ambiguous’ and the image of the corporate lawyer facilitating public concerns whilst acting zealously for their client is missing. Solicitors are expected to act with ‘complete integrity, probity, and trustworthiness’ (Bolton v Law Society) across the board, yet the corporate legal environment, competitive and incentivized by achieving high revenue, increasingly acts to reduce a lawyer’s capacity to act independently.
The question is therefore to what extent should a corporate lawyer protect their client’s interest before it becomes detrimental to the wider public interest?
NDAs are commonly used to protect businesses’ commercial knowledge, such as proprietary information and trade secrets, or prevent reputational damage. Drafting the agreement of a legal NDA does not generate an ethical dilemma – you are pursuing your duty to the client (Principle 7), but not to the exclusion of your other obligations. Furthermore, ensuring confidentiality with regards to the protection of businesses and individuals alike is crucial to the standard of professionalism expected by the SRA, as highlighted by O(6.3) ‘you keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents. Additionally, NDAs are argued to promote the rule of law through their facilitation of settlement agreements and enforceable contracts, both of which are within the public interest. However, there is a ‘darker side’ to NDAs, where an agreement is drafted contrary to the legal ethical principles upholding the rule of law and administration of justice. NDAs can enable ‘cloaks of secrecy to be thrown over serious misconduct, leaving individuals in difficult circumstances.
The disgrace of Harvey Weinstein and the #MeToo movement has thrown NDAs into the spotlight, with many individuals asserting NDAs are used to stop victims from reporting genuine sexual misconduct. NDAs in sexual misconduct investigations can prevent the public from learning about misconduct and individuals from acquiring proof necessary to their cases, whilst simultaneously impairing criminal investigations and the enforcement of statutory rights. This stands in direct contrast with Principe 2 to ‘uphold public trust and confidence in the solicitors’ profession’ and the SRA Outlook 20192020 which highlights the importance of acting with integrity as ‘more than not being dishonest’. Investigative reports revealed Harvey Weinstein had abused his position of power for decades, sexually assaulting and harassing numerous women. Zelda Perkins, Mr. Weinstein’s former executive assistant, originally planned to take legal action against Mr. Weinstein and Miramax Films, but was left with ‘no other option than to enter into an agreement … accepting a financial damages settlement and … non-disclosure agreement’. The agreement left Ms. Perkins believing she would face incarceration if she were to break the NDA and left with her a loss of faith in the legal system. It is obvious here that the structure of the Weinstein-Perkins NDA regarded Mr. Weinstein’s interests as a priority over public duty, contrary to Section 1 of the LSA 2007 which emphasizes protecting and promoting the public interest. It appears that a lawyer’s ‘unbalanced’ actions could be justifiable from the perspective of the standard conception, for example, Allen