The Limits of Loyalty

Irrespective of who controls the lawyer and client relationship, the issue of the limits of lawyers’ actions on behalf of clients remains. So far, this issue has been considered from the point of view of whose decisions hold sway in the lawyer and client rela­tionship.

A. Codes of Conduct

The obligation to be partisan is derived from the Model Rules and Canons of Ethics of the American Bar Association. The position on the lawyer and client relationship reflected in the English professional codes of conduct can be usefully contrasted with the rules and principles upon which the standard conception of the lawyer’s role is derived. This section sets out the position in these codes before comparing and considering the implications of each.

B. The American Bar Association

i. Partisanship in The American Bar Association Canons of Professional Ethics and Model Code of Conduct

Some excesses of the obligation of partisanship were perceived to flow from the refer­ence in the ABA code to the notion of ‘zealous advocacy’ on behalf of clients.¹¹¹ The

¹¹¹.See R J Condlin, ‘Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role (1992) 51(1) Maryland Law Review 1, at 72. term came from the ABA Canons of Professional Ethics, first adopted in 1908.^[1493] Canon 15 provided that a lawyer

owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability, to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied.

This then appeared in the ABA Model Code of ethics as follows:

The duty of a lawyer, both to his client1 and to the legal system, is to represent his client zealously, within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations.^[1494]

There is some debate about what the qualification ‘within the bounds of the law’ means. It might mean legal entitlements or it could mean everything a lawyer can extract from the other side. This is, to some extent, a matter of degree. In either case the obligation is to vindicate the client’s legal claims irrespective of the justice of those claims. This disposition of lawyers, as much as the obligation of ‘zealous advocacy’ is, blamed for a legal culture leading to the ‘discrepant moral reasoning’ lawyers.^[1495] They are also the basis of the obligation of partisanship.

The 1980 ABA Model Code recognised a distinction between the duty owed to clients by lawyers acting as either advocate or adviser. It suggested that an advocate must resolve doubts about the bounds of the law in favour of clients. Lawyers acting as advisers could, however, give their professional opinion as to what the courts would be likely to decide was the applicable law.^[1496] Lawyers could then continue in the rep­resentation of a client even though the client elected to pursue a different course of conduct, provided they did not ‘knowingly assist the client to engage in illegal conduct or to take a frivolous legal position’.^[1497]

The current ABA Model Code does not refer to zeal in the rules.^[1498] The preamble does state, however, that ‘[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system’.^[1499] The rule purporting to cover the alloca­tion of authority between lawyer and client states that a lawyer shall abide by a client’s decisions concerning the objectives of representation and consult with the client as to the means by which they are to be pursued.^[1500]

The concept of zeal has not been replaced by a direct alternative in the rules, although they do also require diligence.^[1501] To the extent that partisanship depends on the concept of zealous advocacy, the analysis must therefore be treated with caution.^[1502] The duty of zeal has also been quietly dropped from many state Bar codes.^[1503] This does not mean that partisanship is not a kind of default position for lawyers.

The ABA Model Code provided considerable clarity about expectations of lawyers’ behaviour. It allowed them to pursue a client’s wishes and preferences but apparently, did not require them to do so. The ABA Code provides a fairly clear example of what should happen when lawyers and clients disagree. The comment to Rule 1(2), dealing with the scope of representation and the allocation of authority, states that:

On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particu­larly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.^[1504]

The comment went on to say that lawyers should try to persuade clients to their point of view, but if a mutually acceptable solution cannot be agreed to ‘a fundamental disagreement with the client, the lawyer may withdraw from the representation’.^[1505]

The notion that partisanship justifies lawyers’ extreme behaviour on behalf of clients appears to have lost ground. If lawyers can extricate themselves from their retainer on the grounds of a ‘fundamental disagreement’, they can do so on moral grounds. This leaves the pursuit of a client’s lawful wishes and of partisanship gener­ally, looking like options rather than obligations. At the same time, obligations of candour to the court and fairness to others have apparently gained ground in the USA.^[1506] Taken together, these trends suggest that lawyers’ ethics in the US are moving away from a hard line on partisanship.

ii. Duties to Clients in the Current American Bar

Association Model Code

The current American Bar Association Model Code of Conduct states that the lawyer should ‘abide by a client’s decisions concerning the objectives of the representation’.^[1507] This rule suggests that clients are ultimately in control of the relationship between lawyer and client.

The ABA Model Code provides another rule that appears to go further in promoting client autonomy. This provides that ‘[a] lawyer shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules’.^[1508] There are however qualifications to the apparently absolute control that an obligation to pursue lawful objectives gives clients. Lawyers can waive client rights, or fail to assert them, ‘where permissible, and refuse to aid a client in conduct they believe to be unlawful, even though it is arguably legal’.^[1509]

C. The Lawyer and Client Relationship in England and Wales

i. Clients Best Interests

The professional principles of the LSA 2007 and the codes of the English legal pro­fessions, specify that lawyers in England and Wales act in clients’ ‘best interests’.^[1510] This neutral formulation emphasises the obligation to protect the client, but gives little indication of where responsibility for decision-making resides. Nor does it specify whose perception of the client’s interest prevails. The ‘best interests’ formula is consistent with almost any model of the lawyer and client relationship.

ii. Partisanship in the Codes

a. Solicitors

The English profession does not carry the same semantic baggage as the US profession. The term ‘zeal’ has not been used in either the Law Society Guide or the Bar’s Code of Conduct.^[1511] The old Guide stated that a solicitor was bound to exercise diligence in carrying out a client’s instructions.^[1512] Bayles argues that ‘[a] responsibility of diligence or zeal is closely related to, but distinct from, that of competence.

In any event, not even the obligation of diligence was transferred to the Solicitors’ Code of Conduct 2007. No similar description of the nature of solicitors’ commitment to clients appears in the SRA Handbook. Nor is there a duty to seek a client’s lawful objectives or anything similar. As discussed below, solicitors must not terminate their instructions without good reason. Unlike the ABA Code, the SRA Handbook provides no guidance on whether a ‘fundamental disagreement’ with a client is a good reason.

b. Barristers

The Bar Code comes closer to the old US position on zealous advocacy with the obligation to promote a client’s best interests ‘fearlessly and by all proper lawful means’.^[1514] At first sight this is fierce language, but being fearless does not have the same partisan connotation as does zeal. Nor is fearlessness as client-centred, or as radical, as an obligation to pursue a client’s lawful objectives. The use of all ‘lawful means’ does, however, suggest an obligation to pursue client objectives.

iii. The Limitation Imposed on Partisanship by Duties to Uphold

the Rule of Law and the Administration of Justice

The codes in England and Wales have an explicit inclination towards preserving the integrity of the legal system. These are expressed as duties to upholding the rule of law and the administration of justice. Although this is probably intended as limit on partisanship, it is not clear how the limitation is intended to operate. It is therefore necessary to consider what upholding the rule of law and the administration of justice might mean.

It is presumed that the obligation to uphold the rule of law, in both the LSA 2007 and the SRA Handbook, refers to a commitment to formal legality.

Both of the main legal professions make significant commitments to upholding the administration of justice. The guidance to the core duties for solicitors, for example, states that any conflict in core duties must be determined according to the public interest, and ‘especially the public interest in the administration of justice’.^[1515] The Bar Code is more circumspect in that the duty to the administration of justice is framed as a duty to the court. In the former code, barristers were told that they have an ‘overrid­ing duty to the court to act with independence in the interests of justice’.^[1516] This for­mula was assumed to reflect the focus on advocacy. In the present code, Core Duty 1, ‘observing your duty to the court in the administration of justice’,^[1517] makes this assumption explicit. This overrides any other core duty if, and to the extent, the two are inconsistent.^[1518]

It is clear immediately that the principles of the SRA Code express a potentially broader limitation on pursuing clients’ interests than the Bar Code does. Principle 1 of the SRA Code does not equate a duty to the administration of justice to a duty to the court. It is assumed, therefore, that for solicitors, upholding the administration of justice is wider than a duty to the court. This interpretation may be supported by an outcome in the SRA Handbook stating that solicitors must provide services to clients ‘in a manner which protects their interests in their matter, subject to the proper administration of justice’.^[1519]

If the reference to solicitors’ duty to the administration of justice is intended to limit client autonomy, it is not obvious how such a limitation operates. It may be intended to extend the scope of the conventional duty to the court in advocacy, to litigation. This is consistent with the LSA 2007. The outcome could imply responsibility for constraining malign or immoral client preferences, even if those preferences are legal. On the other hand, it may not. In short, if solicitors have some responsibility to the administration of justice beyond duties in litigation and advocacy, it is not clear what they are.

D. Comparing the Position of Clients under the ABA Model Code and the Codes in England and Wales

The US position, where it is clear that lawyers are expected to act on the basis of the instructions of the client, is inconsistent with paternalism. In fact, an issue in the US academic literature for some time is whether it should be lawyers’ main function to facil­itate client autonomy.^[1520] This does not mean that paternalism is completely absent in the US. Rhode suggests that paternalistic approaches are ‘seldom preached but often practised’.^[1521] Nevertheless, as David Luban observes, as far as the Code is concerned, ‘the American model is loyalty to the client’s wishes and not his interests’.^[1522] Thus, a lawyer following the model rules promotes client autonomy even when the course of action involed is unwise in in the circumstances.

The professional codes in England convey no expectation of participatory decision­making or an obligation to promote client autonomy. If there were, it is likely that it would be made explicit in the rules. The obligation to act in the best interest of clients is consistent with either paternalistic or participative models. In order to discover a clients’ best interests lawyers may need to explore their situations in a way that is consistent with the participatory model. This is the implication of the client care regime, which suggests an intention to promote participation. It is possible, however, to shower clients with information and to operate within a paternalistic framework thereafter.

There are two main risks in the operation of the paternalistic model of the lawyer and client relationship. First, it places a high premium on the altruistic motives of practitioners.¹⁴² Enlightened self-interest, it is argued, predisposes professionals to act with integrity and in their clients’ interests, because this serves their own collective, long-term commercial interests. ¹⁴³ Secondly, under most of the models, professionals must hear a client’s individual story before deciding what can be done for them. In an extreme paternalistic position, lawyers could assume, on the basis of inadequate information provided by clients, what their interests are.

X.