The Future for an Expanded Concept of Responsibility to Collective Third Parties

Gordon blames the Kaye Scholer affair, and the US Bar’s response, on the

uncontrolled expansion of libertarian ideology into lawyers’ common consciousness—to the point where lawyers have come to feel genuinely affronted and indignant when any author­ity tries to articulate a public obligation of lawyers that may end up putting them at odds with clients.

Assuming that Gordon is correct in his assessment of the situation in the US, it is nec­essary to ask whether the situation is the same in the UK. Critics of the professional regulation of lawyers argue that

¹⁴⁶ Gordon, ‘A Collective Failure of Nerve’ (n 1). the codes’ silence on issues of general justice and the public interest as compared to the detailed regulation of matters such as how solicitors firms should be named, what matters can be referred to in lawyers’ publicity, and the ownership and storage of documents, suggest that they are more important than questions of acting justly in regard to specific others, the general public or the environment.¹⁴⁷

The conduct rules in England and Wales give no permission to break client confi­dence to avoid ‘substantial injury to the financial interests or property of another’ as does the ABA Code. Collective third party obligations regarding money laundering have not, as predicted, led to broader professional responsibilities to third parties.¹⁴⁸ If anything, lawyers may guard privilege more jealously. In most circumstances, legal privilege and client confidentiality prevail.

The fact that Enron and similar scandals might have been prevented by the law­yers acting for the corporations is not by itself a clear-cut reason for imposing wider responsibilities in the professional codes. Indeed, it is doubtful that this will happen unless there is a very clear reason for impinging on client autonomy. An exception to this general proposition could be made where lawyers are required to perform a spe­cific gatekeeping role, such as signing off on a transaction. Here, it would be possible to impose a requirement of absolute independence from the party seeking a lawyer’s authorisation. In such circumstances issues of client confidentiality and privilege would be circumscribed.

Broad obligations to collective third parties present many problems for lawyers within a lawyer and client relationship. Because of this, the specific circumstances in which their duties within the relationship are abrogated should be specified and the requirements made explicit. So, for example, if a high degree of lawyer independence is necessary, it may be required that lawyers performing a gatekeeping role are uncon­nected with the party seeking clearance. It is likely that any such move would need to be taken by the legislature or courts. Lawyer regulations need only specify that lawyers perform such obligations faithfully, as in the case of money laundering.

VII.