What may a lawyer do, what may a lawyer not do and what are lawyers expected to do?
Urs Feller
Prager Dreifuss, Zurich
This session, held on 1 November 2023 in the chamber of the International Chamber of the Paris Commercial Court in central Paris, was led by Sandrine Giroud (of LALIVE in Geneva), Vice-Chair of the Litigation Committee, and Adam S Goodman (of Dentons in Toronto), Vice-Chair of the Rule of Law Forum. Panellists were Robert Steven Bernstein (of Holland & Knight, New York), Christopher Stephens (of the World Bank, Washington), and Ambassador Ret. François Zimeray (of Zimeray Finelle, Paris). The discussion addressed the pressure lawyers could face from their clients, the limits of free speech, but also whether the concept of universal rights was under attack.
Only a few days prior to the IBA Annual Conference in Paris in October 2023, the activities of two US lawyers, Jenna Ellis and Sidney Powell, were broadly reported in the news and on social media. Ms Ellis pleaded guilty to a felony charge over efforts to overturn Donald Trump's 2020 election loss in the US state of Georgia, while Ms Powell pleaded guilty to six misdemeanour counts of conspiracy to commit interference with election duties in the 2020 election. At the time, both of them were acting in their capacity as lawyers, with the respective obligations this role entails, and they seem to have crossed the limits of their profession by their actions.
Robert Bernstein explained how lawyers in the US are obliged to protect the rule of law. At the same time, lawyers are obliged to defend the interests of their clients, who are putting a lot of pressure on them. However, no lawyer is allowed to participate in criminal activity of a client – ‘It is our job to push back and hold that line’, as Mr Bernstein said. It seems, however, that some parts of society do not understand the role of lawyers. Society should not confuse the lawyer’s role with the situation of the client. Unfortunately, there is a long-standing tradition in society of improperly associating lawyers with their clients or incorrectly suggesting that the lawyers endorse their client’s alleged conduct when representing them in court or in public.
François Zimeray raised the question of whether we live in a different era and, if so, what this meant. In his view, a new era had commenced, as facts no longer matter. Much to the contrary: prejudice prevails. It is becoming more and more difficult to address the complexity of the issues. Lawyers are here to address the nuances, but present times aim for simplicity. These days, the profession of lawyers is less accepted and less understood than in previous decades. In his view, the principle of universality is under threat. He sees a constant push to promote differences over similarities. The very idea that every individual has the same human rights, including the right to dignity, is under attack. Mr Zimeray further explained that he recently had the opportunity to discuss such issues with a popular representative of the young generation in a panel discussion. On this occasion, he explained the right to defence, that prescription exists for crimes and the value of the presumption of innocence, which leads to the result that, in case of reasonable doubt, an indicted person shall be set free. The young woman in the panel turned to him rejecting this view, holding that the system should work the other way around. She would prefer, for the benefit of the system, to incarcerate as many indicted individuals as possible and would – to this end – accept having certain innocent persons in jail. According to Mr Zimeray, this fundamental shift was extremely worrying. He posed the question of whether, if we as lawyers are naïve, we would see the end of human rights on a universal basis.
The discussion then turned to the aspect of unpopular clients also deserving representation. Sandrine Giroud laid out the recent legislation pursuant to which, under both EU and Swiss sanctions law, lawyers are not permitted to provide services to Russian (non-sanctioned) clients in relation to transactional advice. Compared to earlier sanction regimes, this is unheard of. It raises the question of whether the services of lawyers could be restricted like any other service or whether there is an intangible right to access to the law. Important bars like the Paris bar and the Brussels bar have launched legal action against the new rules. The main arguments include (i) the independence of lawyers; (ii) the professional secrecy of lawyers; and (iii) access to the law, as any person should have the right to be aware of their rights, no matter who and where they are. From a conceptional point of view, Mr Zimeray argued that sometimes it was right to stand with those nobody wants to stand with.
Christopher Stephens explained that, on the basis of his experience at the World Bank, all the efforts and endeavours that are put into ESG (eg, governance regulations, the inclusion of women in the economy and in society etc) are necessary and serve the goals of the World Bank. It is well understood that the advancement of ESG strategies requires funding and reduces shareholder value in the short term but aims for good results in the long term. On the other hand, the more resources and funding are put into the ESG agenda, the less funding is available, for example for energy, healthcare, or infrastructure etc. To find the right balance is not an easy task. Regarding the notion of diversity and inclusion, Robert Bernstein referred to the ‘statement of principles’ of the Law Society of Ontario, which mandated every lawyer to submit to the principles that include ‘a commitment to equality, diversity and inclusion’. In this context, the question of which universal norms should/must be endorsed by all members of the profession was discussed.
In a further step, the discussion turned to the question of where the outer limits of free speech for employees of a company were, but especially for lawyers and law firms.
Robert Bernstein referred to a recent reaction of the law firm Winston & Strawn in October 2023. The law firm had rescinded a job offer to an NYU law student after the student blamed Israel for the Hamas attack in Israel, in a student online publication. The comments of the law student were said to be in conflict with the law firm’s values. According to a press report, the NYU dean also distanced himself from the student’s comments, emphasising that they did not represent the opinion of the law school or its leadership.
According to Mr Stephens, much depends on the labour laws which are different around the world. However, the more senior an employee is, the closer his/her speech is attributed to the law firm. The firm has a higher interest with regard to the speech of a lawyer than of an assistant. There seemed to be a consensus among the panellists that employees could basically say whatever they wanted, but they had to accept the repercussions. Certainly, they could not speak on behalf of the organisation. Employees have free speech, but their speech has consequences, eg the termination of their employment.
From a law firm perspective, the question also arises as to what this means for the organisation and what it means for the competences of this person if any inappropriate speech on behalf of the firm were to be tolerated. Although no firm wants to police the speech of its lawyers (or law students during their internship), questions arise where someone’s speech is completely unacceptable as to what this says about his/her core competencies, eg to apply reasonable judgment in another context. Lawyers and law students ought to realise that their words are heard by clients and society and may reflect on the employer as well as on themselves.
Towards the end of the session, the issues under discussion were further developed with questions and inputs from the floor. In the wrap-up, Sandrine Giroud explained that the reputational issues would not disappear. Lawyers should take a long-term perspective in all matters related to the rule of law. If lawyers are prevented from taking on matters, we would be creating a problem with regard to access to justice and to the law. This could undermine the whole system and the basic principles of the law. In the view of Adam Goodman, large law firms have a much lower risk tolerance if the flood gates open. He concluded that smaller law firms and their client base would be more resilient regarding such aspects.
The panel discussion showed the increasing pressure put on the legal profession to adopt ethical positions which may lead to a refusal to provide legal representation. As pointed out by the audience, this topic is under consideration by the IBA with its project examining the role of lawyers as ethical gatekeepers.