Legal Business Blogs

Comment: NDA mess shows age of just-about-OK legal ethics has passed

Once, not long ago, considerations of ethics were simple for law firms, if they bothered thinking about them at all. If what they were advising on was legal, however morally questionable, it was all good. Professional ethics? You didn’t need to worry – they were lawyers.

Those halcyon days are passing. Consider the convulsions in the profession regarding non-disclosure agreements (NDAs) and their rampant use covering up harassment, a debate that has simmered for a year now. This topic skewers the profession on two fronts – NDAs have not only been used by law firms as a means of concealing poor behaviour by partners towards staff but they drew up the gagging agreements used by business at large.

Obviously, it is not lawyers’ role to be Jiminy Crickets to plcs, their job is to proactively represent clients’ interests within the bounds of the law. But the profession will eventually have to wrestle with the reality that a minimalistic adherence to technical rules is no longer an impenetrable shield protecting corporate images. That is plain across all industries and walks of business life and law is hardly immune, though you would hardly know it given the weedy response from the profession.

Law firms don’t have to take every client, don’t have to sign off every course of action and they have professional obligations that they should take a lot more seriously than they do (there is much credible academic research indicating that professionals’ confidence in their ethics is often misplaced).

You only had to look at the parliamentary testimony earlier this year on NDAs to see how pusillanimous were the protestations of both the profession and regulator in the face of questionable conduct. The Solicitors Regulation Authority should be spending more time on the hard graft of proactive enforcement rather than endless consultations and tinkering with the legal education regime.

General counsel, increasingly prone to boasting of their rebranding as ‘partners’ to the business rather than blockers, should remember that saying ‘No’ remains a fundamental part of their job, not an awkward impediment to personally climbing the greasy pole.

And consider advising businesses in markets like Russia – how confident are City firms that their record will stand close scrutiny? Not very, they just hoped/expected the question would never be asked.

Yet it has become common to hear senior lawyers hold forth on the need to engage with Millennials and their values. How well does working on the most ethically far-gone situations you can possibly get away with sit with that treasured staff engagement?

Not that this is a plea to boil all this down to the ‘business case’, those two cursed words forever marching towards hand-wringing professional debates with the ill-deserved confidence that they can smooth over any ethical rough edges. You don’t make a business case for not speeding, or harassing staff, so why should we boil down questions of ethics or diversity to such terms?

Change takes leadership. If moral relativity is the Achilles’ Heel of professions – and it is – their strength is a leadership that can come from independence of mind. Now would be a good time to exercise that quality.

See Draining the swamp for our analysis of NDAs.