International Bar Association launches project to examine the role of lawyers as ethical gatekeepers

The International Bar Association has launched a project to examine the professional role of lawyers as ethical gatekeepers within wider society, and to help clarify the ethical responsibilities and obligations of lawyers when providing legal services. The new project is designed to be a proactive effort, seeking ways to engage in meaningful dialogue with those criticising the profession, while also explaining the dangers behind any undermining of the core values of the legal profession.

The Gatekeepers Project, led by the IBA’s Legal Policy & Research Unit (LPRU), will startwith a consultative exercise across the IBA membership, to invite input from bar associations, law societies, law firms and individual practitioners.

‘The Gatekeepers Project has the potential to be one of the most important undertakings of the IBA since it first issued an international code of ethics in 1956,” said Mark Ellis, executive director of the IBA. “We need to recognise that the world has changed a lot in the last 70 years, as have the ethical dilemmas facing the profession.”

Criticisms of the profession have emerged from a number of sources, the IBA notes, with the most recent high-level reproach coming in relation to legal services provided to individuals and entities associated with Russia’s invasion of Ukraine.

“Over the last two decades, the IBA has been increasingly proactive and visible in its efforts to fight corruption and promote core standards for the legal profession, including our groundbreaking guidance for business lawyers on human rights contained in our 2016 Practical Guide,” said IBA president Sternford Moyo, chairman and senior partner of law firm Scanlen and Holderness. “Now we are leading the charge in the global response to one of the greatest challenges facing the profession today - namely, how to respond to the ethical challenges and criticisms that lawyers face in relation to our profession’s core principles and the provision of legal services.”

The criticisms referenced by the IBA president include accusations that lawyers hide behind and abuse some of the key principles of the profession, notably the protection provided by lawyer-client confidentiality, to shield and protect the ethically questionable behaviour of their clients.

“Rather than wait for negative comments to develop into actions and to avoid forming a position of defensive entrenchment, we want to undertake constructive dialogue and find solutions,” said Sara Carnegie, director of  the LPRU, and leader of the project. “We hope that all parties can reach mutually respectful positions with informed understanding of what is at stake.”

Questions likely to form part of the consultation include:

• What sort of ethical choices and challenges are lawyers faced with daily?
• Is existing ethical guidance fit for the new challenges facing the profession in the 21st century?
• How can lawyers respond effectively to a changing shift in priority towards broader social concerns and considerations, noting the extensive work undertaken over the last decade to build on the UN Guiding Principles on Business and Human Rights and the IBA’s support of this framework?
• Can a sensible and cohesive position be reached on these issues given the varying political and cultural constraints and influences that exist in different jurisdictions?
• What is going wrong with the present conversation on these issues?
• How can lawyers better engage with outside entities that are in some cases, attacking the profession and its principles?
• Can a truly global response even be achieved?

A series of publications will follow the project’s consultation phase to include guidance for law firms on how to navigate the ethical minefields posed by modern commercial legal practice and an update or ethical commentary for the latest version of IBA’s International Principles on Conduct for the Legal Profession. In-person and online events, as well as dialogue with international organisations will also take place across the globe.