The PO cases, spanning two decades, multiple lawyers, barristers and solicitors, senior and junior, in-house and in private practice, are extraordinary in their scale and the harms wrought on ordinary people. In the chapters that follow, I suggest that these extraordinary harms flow not from extraordinary malice or self-conscious immorality but from something more ordinary and insidious in its awfulness. Ethical failure stems from complacency and an ideology of lawyering that makes ethical failure likely and cover-ups normal through an adversarial dislocation with truth.
Legal Aggression Harms the Rule of Law
Lawyers like to treat what they do as synonymous with the rule of law. Challenges to NDAs and SLAPPs, for instance, have been met with sometimes fierce resistance on the basis that they inhibit rights. The beneficiary of an NDA that silences a complainant in a misconduct case is taking advantage of contract law. The progenitor of what their detractors would call a SLAPP suit is protecting their privacy, or data protection rights, or rights to protect their reputation. The defenders of NDAs and SLAPPs make rights claims in ways that can create a hefty tension between legality and what I call legal aggression.
I define legal aggression as positions taken through legal phenomena that are arguably legal but understood (by the lawyers and/or their clients) to be probably unlawful or misleading. Put another way, there is deliberate (or reckless) risk-taking with legality. Legal phenomena can include the interpretation of legal obligations (can I legitimately do act X? does act X give rise to a liability against me?), the creation of legal instruments (is this contract valid in its particulars or does this instrument accurately represent the legal relations it purports to describe?), or investigations that draw on legal norms (did person X do anything wrong and by which standards?).
Such aggression can be permissible (I may act in a way that is more likely than not to amount to a breach of contract, although I may put myself at risk subsequently by so doing) or impermissible (I am prohibited from knowingly or recklessly misleading anyone as a lawyer). The boundaries between the permissible and the impermissible are not necessarily clearly drawn and can depend heavily on the context.
Aggression is driven by the rules, systems, and culture of the profession and its clients. Steven Vaughan, Kenta Tsuda, and I have already shown how aggressive lawyering and the rule of law can conflict in the work we did for the Legal Services Board. There, we argued that:Footnote 1
Precisely because, as we will show, the debate about the preferred meaning of the rule of law is not settled, we urge scepticism of claims that the rule of law demands any particular response to a regulatory issue or that it ascribes to lawyers freedom from restraint or scrutiny. A lawyer’s behaviour is not necessarily consistent with the rule of law merely because a superficial claim can be made that they are exercising a right for a client. For example, that I have a right to bring a claim does not necessarily mean I have a right to bring a particular claim in a particular way. Other questions have to be asked and answered.
There is a narrow view of the rule of law which says that professional regulators may not inhibit the ‘rights’ of clients to access zealous advocacy, and there is a broader view which says that overly zealous advocacy jeopardises and sometimes breaches the rule of law. These debates are reflected in much discussion of NDAs and SLAPPs, for example.
What our analysis of ethical risks in this Report suggests is that lawyers are sometimes too inclined to engage in professionally questionable, and potentially even illegal, actions without fully reflecting on the legal rules and interests engaged. Equally, the examples that we discuss in Section 2 of this Report are not chosen as clear-cut, black-and-white examples of unlawfulness or professional misconduct. They are chosen as examples where there are legitimate questions that might be asked about professional conduct, and which are therefore legitimately the concern of regulators.
Aggression is why we have questions about lawyers enabling oligarchs. It is why the Intelligence and Security Committee, one of Parliament’s more sober committees, suggested that professional enabling threatens national security. The committee said it was ‘highly probable’ that the resources oligarchs could devote to lawyers, as ‘a key group of professional enablers’, were used to circumvent controls on illicit finance, alongside ‘a large private security industry … developed in the UK to service the needs of the Russian elite, in which British companies protect the oligarchs and their families, seek kompromat on competitors, and on occasion help launder money through offshore shell companies and fabricate “due diligence” reports, while lawyers provide litigation support.’Footnote 2
Legal aggression is part of the explanation for how Harvey Weinstein, Mohammed Al Fayed, and Philip Green were able to silence complaints of misconduct against them. Weinstein deployed an NDA against Zelda Perkins and a colleague that inhibited their ability to talk to the police – or, indeed, anyone – about the harassment and sexual assault they had experienced. They were even prevented from keeping a copy of the agreement or seeking advice on it without permission.Footnote 3 Philip Green’s conduct was not on the same scale or seriousness as Weinstein’s, but his lawyers deployed NDAs with large clawback clauses, which were said to have intimidated the subjects of those NDAs from speaking out about his conduct.Footnote 4 Mohammed Al Fayed’s lawyers are reported to have stifled the reporting of sexual crimes using NDAs in settlements alleged to have required the shredding of evidence.Footnote 5
If one scrutinises such agreements, myriad problems can emerge. The agreements may contain clauses that are likely to be unenforceable as unfair or contrary to public policy. Or they may claim clawbacks of damages that are likely to be penalty clauses. Or they may assert unsupportable claims to confidentiality over serious crimes. They may also require warranties that cannot or should not be given. Asking a victim of harassment to warrant (promise) that the claims they made were not crimes or misconduct can be a device to undermine the claimant should they subsequently report the same conduct.Footnote 6 It is legal gaslighting. Arguably unfair clauses hold sway unless a victim decides to break or challenge the agreement. Aggression layers up in legal form, legitimised by claims that freedom of contract trumps the exposure of misconduct,Footnote 7 as powerful men and their lawyers draft menace and silence into the lives of their victims through NDAs and non-disparagement clauses.Footnote 8
Lawyers have helped banks with off-balance sheet accounting,Footnote 9 systemic risk-taking,Footnote 10 and disguising commissions on share deals,Footnote 11 or have designed lax money laundering controls.Footnote 12 In each of these cases, the choices made by the lawyers can be presented as arguably legal even where the approach in question is likely to be improper or even criminal.
What Is Missing from the Definition of Aggression?
Whilst I have defined legal aggression as choices based on arguably legal but probably unlawful or misleading positions, additional problems mark the problematic cases. SLAPPs are a good example. Aggression there involves making a claim that arguably a client has been defamed when probably they have not been, where the claim is also asserted in ways that do, and may be designed to, inhibit others’ rights to freedom of expression. A judgement on what constitutes inappropriate aggression depends on assessing how probable it is that the aggression is wrong, how inappropriate its practical manifestation and impacts are, and perhaps what the purpose of the aggression is.
Secrecy and rule of law rhetoric often shroud legal aggression from scrutiny. Those subject to arguably nefarious NDAs had to break them for them to be challenged and face down claims that they had freely contracted into their own subjugation. SLAPPs can be based on a simple, unverified assertion that a defamation claim is legitimate or that other rights have been breached.
It is how such aggression degrades legality, integrity, and honesty that concerns me most when discussing lawyers’ ethics problems, and this is the focus of this book. That is not to say that other questions of lawyers’ ethics are not important and of interest, but I aim to emphasise two things. One is that critical elements of lawyers’ ethics challenge the rule of law, even when purporting to rely on it. In this sense core elements or priority aspect of lawyers’ conduct are concerned with integrity, honesty, and fairness, as legality depends on them. That leads me to the second emphasis: if lawyers’ ethics is central to legality, we should reject the rather straw-man notion, offered by rather too many practising lawyers, that ethics is the trumping of law with ‘subjective’ morality and to be deprecated.
As will become apparent, I see overlaps between common morality and sound legal and ethical judgements, but my focus on professional ethics in relation to legality means I leave interesting questions such as whether lawyers should represent awful clients (such as petrochemical companies or oligarchs) to others or another time.Footnote 13 My concern is with how what lawyers do for those clients (arguably) breaches professional ethical rules and the ideology that underpins such behaviour. In particular, the dominant approach to lawyers’ ethics, the standard conception (discussed in the section on “The Dangerous Logics of Zealous Advocacy”), operates at the level of cynical positivism, partly because legality is treated as separate from ethicality when it is not. To practice law professionally and ethically, one must interpret facts and laws accurately and act on those interpretations in good faith with integrity. And whilst my dominant focus is lawyers doing things they should not, they do so because of the interaction between the rules and their ideology, which creates its own flawed morality.
In my description of the PO scandal in earlier chapters, I argue that we have seen lawyers responsible for unfair contracts, aggressive collection of debts and enforcement of (sometimes unfair) contractual rights, and making examples of litigants (potentially an abuse, although the courts are wary of such arguments and more likely to see excess as a problem of disproportionalityFootnote 14). We have seen prosecutions flowing from charges tendered when key evidence was missing, outrageous plea bargaining, the improper handling of expert evidence, and disclosure failures that range from unreasonable resistance to indefensible suppression. And we have seen the exploitation of legal professional privilege, the use of flawed and conflicted ‘independent’ investigations and reviews to legitimise POL’s own view of itself as having acted properly, the undermining of Second Sight’s investigation through aggressive handling by lawyers, as well as sanitised reporting of problems to the board and beyond (when the lawyer’s obligation is to ensure the client has all material information before it). The creation of an attritional mediation scheme; scorched-earth and flat-earth litigation deploying misleading arguments and evidence; a questionable recusal application; and the use of NDAs, libel, and guilty pleas used to silence people all protected Horizon and the litany of legal failures from scrutiny for many years.
Each of these points raises questions about the lawyers involved: lawyers senior and junior, in-house and in private practice, GCs and KCs, even a senior, retired judge (although he is not bound by professional rules, having retired from the Bar and not rejoined once he left the bench). All are linked by two things: working for the PO and thinking like lawyers. Their failures include questionable judgements about what is arguable or justified in the circumstances, negligence, cynicism, recklessness, and, perhaps, even more deliberate wrongdoing. Many (but not all) of the problems may be professional misconduct. Some may even be subject to criminal investigation for perverting the course of justice. Several lawyers were given self-incrimination warnings in the inquiry.
What do I think is driving ethical failure of this breadth and scale, across so many people, so many different cases, and so many stages of the saga? How is it that lawyers can lead themselves astray in the ways that appear to have occurred here?
1 Frail Gods
My first reason is a play on the idea of lawyers as frail gods. ‘Frail gods’ is my crude metaphor for highlighting what psychologists refer to as the professional ‘self-concept’ – a belief that, as a professional, I am ethically better than non-professionals.
Having a high self-concept feels like an unfair criticism. As professionals, we are expected to hold higher standards than mere employees; however, there is a problem with this elevated self-concept. Maryam Kouchaki has demonstrated that perceiving oneself as a professional increases the likelihood of engaging in dishonest behaviour, such as lying and cheating. In one experiment, she found that students primed to think of themselves as professionals lied and cheated for money 41 per cent of the time, while those who were not primed to think of themselves as professionals did so only 6 per cent of the time.Footnote 15 Both groups got paid, in effect, to lie more, but the ‘professionals’ lies were more frequent and much bigger.Footnote 16 Professor Kouchaki explains that we give ourselves a moral licence to flex because we think of ourselves as better: because I think of myself as a professional, I cut myself some slack.
Sunitah Sah shows that what matters is whether a ‘high self-concept’ coexists with ‘a shallow understanding and practice of professionalism’ and ‘a belief that one’s ability to self-regulate is sufficient’.Footnote 17 Her work shows how managers who considered themselves more professional were more prone to conflicts of interest. There is a similar stream of work around objectivity bias:Footnote 18 those believing themselves to be more objective are often the least objective.
Might such an elevated professional concept be a problem for lawyers?
As we saw in Chapters 3–5, the PO scandal has several examples of lawyers claiming they had acted entirely properly and then being shown evidence that they probably had not. Sometimes, these appeared to be accepted by the subtlest expressions of doubtFootnote 19 or acknowledged only with the benefit of hindsight.
To illustrate this professional self-concept, I want to focus on an example where the rights and wrongs of what happened could be debated. Indeed, the central figure I concentrate on is not subject to professional rules that are likely to have been breached. It is nonetheless an example, I think, of how professional complacency can blend with another problem: the distancing associated with moral disengagement. It relates to Lord Neuberger’s role in the application to have Mr Justice Fraser recused from the Bates litigation.
Patrick O’Brien and Ben Yong demonstrate that most retired judges believe they do not need to be regulated after retirement. The judges they dealt with were confident that they would know right from wrong when deciding what to do.Footnote 20 Although most retired judges, they found, did not engage directly in litigation, they also took different views on what judges were permitted to properly do post-retirement. I suggest this is consistent with a strong self-concept (we believe we would do the right thing) and weak scaffolding (we have no, and need no, rules).Footnote 21 The lack of consensus on what should be done post-retirement might may suggest that judges have a shallow understanding of post-retirement professionalism, to echo Professor Sah, or that judgements about appropriateness are very specific. If the latter, they legitimately depend on personal tastes and the specifics of each case.
As we discussed in outline in Chapter 3, the recusal application was a pivotal moment in the Bates case. Lord Neuberger, a former president of the Supreme Court until 2017, was asked to engage with the Bates litigation: to advise, at short notice, after the CIT on a recusal application. That application involved saying Mr Justice Fraser should remove himself from the case for actual or apparent bias. As post-retirement advisory cases go for a former judge, this was at the more controversial end of the spectrum.
The application flowed from the first major trial of this group litigation. It had been conducted by colleagues in Lord Neuberger’s chambers. The draft judgment for that trial showed they had lost badly.Footnote 22 Lord Neuberger advised that the recusal had reasonable prospects of success and should be brought.Footnote 23 As a former senior judge, Neuberger recognised he should not appear before the court. Lord Grabiner, at the time the Head of Lord Neuberger’s chambers, handled the application. As we have seen, Mr Justice Fraser declined it. POL sought leave to appeal on the papers; Lord Justice Coulson criticised the application in excoriating terms.Footnote 24
To the chagrin of many SPMs and lawyers, Lord Neuberger was not called to give oral evidence to the PO inquiry. He explained his role in written evidence, saying he felt ‘uneasy when I think, read or talk about the Horizon scandal’, but that ‘the topics on which I advised POL were not connected, at least in any direct way, with the appalling history of mistreatment of so many postmasters and postmistresses’.Footnote 25
I think there are reasons to question that assessment. If we assume that the draft judgment that prompted the recusal application contained the same words that appeared in paragraph 10 of the eventual judgment, then the relevance of the case to alleged miscarriages of justice would have been apparent, as would some of the allegations of mistreatment. Paragraph 10 said:Footnote 26
These Claimants claim malicious prosecution against the Defendant, and also claim that there was a ‘cover up’ at the Post Office over the shortcomings in Horizon. Some Claimants were made bankrupt. There are claims for damages for financial loss, personal injury, deceit, duress, unconscionable dealing, harassment and unjust enrichment brought against the Post Office. There is currently a Criminal Cases Review Commission (‘CCRC’) review underway in respect of the convictions of a significant number of the Claimants. These are being dealt with together by the CCRC and are, effectively, awaiting the outcome of the technical aspects of this litigation.
It would be unfair to say that Lord Neuberger would have had in his mind that, had the recusal prevailed, prospects of a successful CCRC referral might have diminished significantly. But that passage suggests he might have had some appreciation of the serious, public interest issues lurking in this case. When Coulson LJ considers POL’s leave to appeal application on the recusal, he perhaps gives some cautious credence to the idea that the application was a purely tactical (and potentially therefore illegitimate) move: ‘Indeed, the mere making of these applications could have led to the collapse of that sub-trial altogether. Although I can reach no concluded view on the matter, I can at least understand why the SPMs originally submitted on 21 March that that was its purpose.’Footnote 27 The Hamilton appeals, based significantly on the Bates case,Footnote 28 might never have been brought or may have been brought later and on significantly weaker grounds. The scandal might have been contained forever.
Lord Neuberger continued in his witness statement to the inquiry: ‘Although as matters turned out my advice did not accord with the view taken by the courts, I was called on to advise in accordance with my opinions at the time, and that is what I did.’Footnote 29
It is worth considering whether Lord Neuberger is distancing himself here from what had happened, describing his role in the narrowest of terms, cutting himself some slack. His role was a minor one in some ways; he advised on limited papers on a narrow question. There is no suggestion that I have seen that his advice was wrong, and his awareness of POL’s (or their legal teams’) tactical proclivities would probably have been limited.
Nonetheless, a more contextualised assessment of his role might be more on point. There used to be, and some judges still believe there is, a judicial convention against retired judges advising on cases, particularly on live cases before the courts.Footnote 30 Neuberger – not unreasonably, but also debatably – thinks the convention has been abandoned and has told me that many former senior judges have advised on live cases before the courts.Footnote 31 This was, of course, a case about a judge’s bias or the appearance of it. It is, as a result, a degree more sensitive than advice on ordinary litigation.
More importantly, whilst I do not suggest this was his intention, it gives the appearance that this was an attempt to aid members of his own chambers. In a situation of great haste, with limited and partial instructions, the risks of giving erroneous advice were also heightened. His observations ‘were to a substantial extent based’, he has told me, on a note from his colleagues on reasons to recuse Mr Justice Fraser. Lord Grabiner conceded at the inquiry that this note was an advocates’ document; it was partisan.Footnote 32 However, Lord Neuberger has said he did not think it was inaccurate or unfair, then or subsequently.Footnote 33
One of the reasons POL went to Neuberger was ostensibly to get a more independent view than that provided by the team who ran the case in court. A solicitors’ firm would struggle to say they had independently advised here. Barristers, however, take cases on the basis that they are completely independent of each other and are used to opposing each other even if in the same chambers. There is some debate in the oral evidence of Lord Grabiner questioning whether they arrived at their views independently of each other, but in broad terms the idea that they could and would have advised independently is consistent with the Bar’s normal approach.
Underlining the suggestion in evidence that they coordinated their advice, the difficulty with the normal approach is, in my view, problematic. There is the problem of team loyalty bias, which is subtle and likely subconscious.Footnote 34 However independent-minded I am, I would struggle to comment totally independently on a colleague. Put at its gentlest, someone from another chambers would have been more independent when advising on the recusal.
One does not have to think, as Lord Justice Pill and his colleagues did when writing for a Judicial Council working party, that ‘The track record of being a judge is commercially saleable but should not be on the market’ to see the risks here.Footnote 35 Lord Neuberger’s name no doubt influenced the board. Through no fault of Neuberger’s, Lord Grabiner deployed his status anonymously when making the fateful recusal application by saying in defence of his position.Footnote 36 ‘And I am not the only judicial figure or barrister that has looked at this with a view to reaching that conclusion. It has also been looked at by another very senior person before the decision was taken to make this application.’
I should make clear, lest anyone thinks I am nodding or winking, that I am not suggesting anything professionally improper by Lord Neuberger, still less anything sinister or criminal.Footnote 37 As a former judge who has not returned to the Bar he is not bound by the Bar’s rules in any event, but the story suggests the kind of problems that an elevated self-concept might lead to. His evidence to the inquiry paints, rather technocratically, in language of role morality. He was, he seems to suggest, merely advising on the papers before him. That he says this is not surprising, not just because he wants to avoid unseemly criticism but also because his representation of the role fits with the dominant ideology of lawyers: narrow, amoral, and notionally independent.
This leads to my second underlying problem.
2 The Dangerous Logics of Zealous Advocacy
Role morality is the idea that the morality of my acts is determined by my role: surgeons can cut, soldiers can kill, and so on. The kind of role morality most often associated with lawyers is that of zeal. In the legal ethics literature it has a rich lineage, usually rooted in moral and political philosophy. Moral philosophers call it the standard conception partly because it is assumed – probably correctly, although it has not been properly tested empirically – to be the model that dominates practitioner thinking.
The idea is in essence that a lawyer may – or, in more zealous versions, must – do anything that assists their client’s case unless it is prohibited, or, in stronger versions, clearly prohibited by law. There are moderate and strong versions of the standard conception,Footnote 38 with some nuance and divergence, around when zeal should be restrained by notions of truth or legality or some other notion of the lawyer’s proper role.Footnote 39 So, for example, some proponents of zeal even suggest lying is justified in certain circumstances, whereas others distinguish between hyper-zeal and mere-zeal.Footnote 40
Zeal is only part of the standard conception. There are three elements:
1. zealous partisanship (you must do all you can to maximise your client’s interests);
2. neutrality (your own morality should not prevent you doing what they want); and
3. non-accountability (you are not responsible for what your client wants you to do).
The idea is that the system gives the client rights. Partisanship requires lawyers to maximise exploitation of those rights, and the professional role serves the system by serving clients in the manner the client would choose for themselves if they were not represented but knew how to use the legal system. The three limbs serve to constitute and reinforce the idea that there is a virtue in zeal, in and of itself, that is (or should be) impervious to other influences, such as the lawyer’s own moral qualms about a client or their desired outcomes.
Competitor theories of lawyers’ ethics emphasise doing what justice requires, what common morality dictates, or more relational and virtue-based approaches; they tend to recognise a place for zeal (especially in the context of criminal defence) but are less doctrinaire in excluding or prioritising the relevance of other influences.Footnote 41 My main concern with the standard conception is really one about balance and descriptive accuracy. In thinking zealously, the tendency is to erase the restraint that it depends on for legitimacy. Lawyers heading towards ethical failure are probably operating on a standard conception-type model. They persuade themselves that they may or must do anything that advances the client’s interests unless it is clearly prohibited by law or rules of professional conduct, and spend little or no time thinking about the restraints that operate upon them. They do so because they can quickly find a way of persuading themselves that any restraint does not apply to them in the particular situation they find themselves in.
A second problem with the standard conception is that the professional rules that bind lawyers in England and Wales are not, if neutrally interpreted, consistent with the standard conception. There are restraints on acting in the client’s best interests: a lawyer cannot assist criminal conduct; prosecutors are expected to be fair in various ways;Footnote 42 a lawyer should not bring claims abusively (although the courts define abuse narrowlyFootnote 43); a lawyer cannot mislead anyone,Footnote 44 and must not take unfair advantage as a solicitorFootnote 45 or abuse their role as advocate.Footnote 46 I said ‘neutrally interpreted’ because it is possible to interpret such restraints zealously so as to minimise their application. To take one example, one could try and interpret restraints on zeal so that they only apply in the clearest of circumstances, but it leeches the obligation of much – perhaps all – of its meaning.
Moreover, there are general statements as to the priority of core obligations inconsistent with the standard conception. The Bar’s Code of Conduct emphasises the need to prioritise ‘your duty to the court in the administration of justice’ (CD1). It overrides ‘any other core duty, if and to the extent the two are inconsistent’.Footnote 47 And, ‘Your duty to act in the best interests of each client (CD2) is subject to your duty to the court (CD1) and to your obligations to act with honesty, and with integrity (CD3) and to maintain your independence (CD4).’Footnote 48 Similar principles bind solicitors: ‘Should the Principles come into conflict, those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors’ profession and a safe and effective market for regulated legal services) take precedence over an individual client’s interests.’Footnote 49
That the rules have both general statements that prioritise the public interest in the administration of justice over clients’ interests and specific limitations on excessive zeal does not significantly dim the appetite of either the philosophers or practitioners for zeal, and in so doing they can sometimes rush past legitimate restraints. It is a relatively simple matter to find that a client has a right they can call on which the lawyer must then not surrender in the interests of justice, however feeble that claim may appear, or an arguable interpretation of the facts to advance that is at odds with any reasonable interpretation of the situation. And, as already noted, lawyers have a good many incentives for convincing themselves that only if clearly restrained do they need to be restrained (to the extent that they think about restraints at all).
The argument, then, is that the standard conception does not encourage a balanced description of lawyers’ actual ethical obligations. There are various ways in which the evidence supports that position. There is a body of empirical literature that suggests, for instance, that lawyers tend to think (wrongly) that their ethical obligations require them to put their client’s interests first.Footnote 50 We should not be surprised: there is evidence that practitioners lack a basic understanding of their own rules and how to apply them.Footnote 51
Let me illustrate how zeal can push lawyers in the opposite direction to that which integrity requires with an example centred on a rule that even lawyers less well acquainted with their own rulebook should recognise: the obligation not to mislead the court.Footnote 52
The Story of Alistair Brett
Alistair Brett was an experienced in-house solicitor working for The Times newspaper. He helped journalist Patrick Foster run a story for the paper about Detective Constable Richard Horton.Footnote 53 DC Horton anonymously wrote an acclaimed blog about the police service, under the pseudonym ‘Nightjack’. It won the Orwell prize for its ‘insight into the everyday life of the police’.Footnote 54 Horton was not leaking details of cases, but he was shining a light on how the service was run.
Some at The Times thought Nightjack deserved to be exposed for breaching confidentiality and embarrassing his employers. The journalist, Foster, got his story by hacking Horton’s email account. That was a criminal offence. His editor brought him to Brett for off-the-record advice. Alistair Brett then advised Foster how to get his story out, and that led to him recklessly misleading the court, as we shall see.
The first thing to understand about how this happened is this: Brett felt able to regard Foster’s confession of criminal hacking as confidential and privileged.Footnote 55 That meant he could keep it secret without worrying about the need to disclose it at some point. Secrecy allowed him the freedom to create a different story so Foster could get his scoop.
He tells Foster off for his conduct and then tells him that if he can identify Nightjack ‘legitimately’ from public sources, they can run the story, provided Foster then ‘fronts him up’: that is, gives Horton an opportunity to confirm or deny he is Nightjack.
Brett was cross-examined on all this during the Leveson Inquiry into hacking in the British media. Lord Justice Leveson suggested that what Brett regarded as ‘legitimate identification’ was a phoney process. ‘The map to the maze [is]’, he said, ‘already laid out.’ In other words, how could you claim to have identified Horton legitimately if you already knew who he was by illegitimate means?
The legitimacy, as presented, was an illusion. It was the start of a slippery slope down which Brett’s handling of the matter slides.
More explicit problems manifest as the slope gets slippier. The strategy runs into difficulty when Foster fronts up Horton. Rather than cave in, as Brett expected, Horton goes to solicitors’ firm Olswangs and seeks an injunction. The Times must fight to publish the story or fold. Brett chooses to fight. Olswangs ask Patrick Foster to swear an affidavit saying he did not hack DC Horton’s account. They also allege he has a history of hacking emails accounts, having been punished for it at university. Brett advises Foster not to respond to the request for an affidavit but writes this to Olswangs by return: ‘As regards the suggestion that Mr Foster might have accessed your client’s email address because he has a history of making unauthorised access into email accounts, I regard this as a baseless allegation with the sole purpose of prejudicing TNL’s defence of this action.’
Brett found sufficient excuse, in his own mind, if he thought about it clearly at all, to write this. It’s an example of how zeal can distort one’s grasp of reality. Perhaps one can convince oneself to argue that Foster does not have a history of hacking. After all, Foster had only done it twice before – once at university and once here – and Olswangs are only speculating on it having occurred here. Perhaps one can argue that it is baseless because Olswangs might not have evidence for the claim that Foster has a history of hacking. One might describe it archly as ‘clever’, or wonder at how weak an argument has to be to be arguable, but sadly for Mr Brett there is worse to come.
When the case is presented to the court, Foster is asked to explain how he identified Horton in a sworn statement. Brett’s most fatal failure edges into view. Foster’s statement, which Brett helps draft, explains how the ‘legitimate’ searches were conducted. Not only were they conducted legitimately, but the statement also indicates that the search for Horton’s identity began in this manner. Brett ignored the privileged information about hacking but also asserted something that was not true. Foster had not begun that way.
In his questioning leading up to Brett’s denouement, Leveson started to wonder about Brett being too close to the situation and challenged him on it. In this passage, we see Brett in the thickets of his own subjective strategy, mired in his legal reasoning, parsing the truth into the one bit of the story he wants to tell:
Mr Alastair Brett: My Lord, all I can do is, rightly or wrongly, I had believed that you could separate the earlier misconduct by Mr Patrick Foster and you could then say, once he had done this legitimately, that could be presented to the court perfectly properly as he had done it legally.
Now, I accept that you say that the two inextricably intertwined, but that, if I may say so, is a subjective judgment. I happen to take the view that you could separate out the one from the other.
So, what happens? Firstly, Leveson makes a very short and powerful point. ‘Let’s just cease to be subjective, shall we. Let’s look at Mr Foster’s statement …’ There is what I take to be a moment of terror, silence, and panic as Alistair Brett rifles through the bundle of documents looking for the statement. It is only at that moment, I think, that Mr Brett realises the extent of his difficulty. The moment when he will be forced to cease to be subjective, because he must account for his actions openly. The time when zeal is tested:
Lord Justice Leveson: To put the context of the statement in, he’s talking about the blog and he says that he decided that one or two things had to be true and that it was in the public interest to reveal it, so there he is wanting to find out who is responsible for NightJack. Then he talks about paragraph 9, which Mr Jay has asked you about, and then he goes on, ‘Only 24 hours to crack the case’, which is a citation from the blog.
Would you agree that the inference from this statement is that this is how he went about doing it?
Mr Alastair Brett: Yes, it certainly does suggest –
Lord Justice Leveson: And then he starts at paragraph 12: ‘I began to systematically run the details of the articles in the series through Factiva, a database of newspaper articles collated from around the country. I could not find any real-life examples of the events featured in part 1 of the series.’
That suggests that’s where he’s started and that’s how he’s gone about it, doesn’t it?
Mr Alastair Brett: It certainly suggests he has done precisely that, yes.
Lord Justice Leveson: And that’s how he’s gone about it?
Mr Alastair Brett: Yes.
Lord Justice Leveson: That’s not accurate, is it?
There is a long, long pause.
Mr Alastair Brett: It is not entirely accurate, no.
Lord Justice Leveson: Paragraph 15. I’m sorry, Mr Jay, I’ve started now. Paragraph 15: ‘Because of the startling similarities between the blog post and the case detailed in the newspaper report, I began to work under the assumption’ – I began to work under the assumption – ‘that if the author was, as claimed, a detective, they probably worked … ’ et cetera.
Same question: that simply isn’t accurate, is it?
Mr Alastair Brett: My Lord, we’re being fantastically precise.
Lord Justice Leveson: Oh, I am being precise because this is a statement being submitted to a court, Mr Brett.
Mr Alastair Brett: Yes.
Lord Justice Leveson: Would you not want me to be precise?
Mr Alastair Brett: No, of course I’d want you to be precise. It’s not the full story.
Lord Justice Leveson: Paragraph 20. I repeat, I’m not enjoying this: ‘At this stage I felt sure that the blog was written by a real police officer.’ That is utterly misleading, isn’t it?
Mr Alastair Brett: It certainly doesn’t give the full story.
Lord Justice Leveson: Well, there are two or three other examples, but I’ve had enough.
Brett’s final throw of the dice is to suggest Leveson’s fantastic precision is unfairly skewering him. It is both desperate and, I think, hypocritical. He had sought to game precision zealously when he said the history of hacking claim was baseless and by compartmentalising Horton’s identification to be able to convince himself they can say Horton was properly identified. When drafting that Foster had begun by conducting a legitimate search, he did not cease to be subjective; he magnified subjectivity and wrote something misleading to boot.
What lessons do I suggest this illustrates?
Zeal, the facility to make an argument on the slenderest of bases, coupled with the ability to ignore inconvenient facts because they will (he thinks) never be disclosed, is dangerous. This poses explicit dangers to honesty and integrity. As the High Court said, in dismissing Brett’s appeal against prosecution in the disciplinary tribunal: ‘In my judgment, the evidence, particularly that of the contemporaneous correspondence and the lack of any response by Mr Brett to the demands contained in it, pointed inevitably to the conclusion that Mr Brett acted recklessly, as described above, in allowing the court to be misled.’Footnote 56
Zeal manifest as the ability to make strained and ultimately misleading arguments in correspondence or even in statements before the court, that would be unlikely to be tested in normal circumstances, and the protection provided by being confident certain information can be shielded as privileged, are likely significant elements here, but there may also be more going on. Our psychological frailties may magnify the tendencies of zeal to overreach.
3 Psychological Frailties
There is fascinating literature on behavioural ethics and the psychology of lawyers that explores our psychological frailty, some applicable to humans, some particularly relevant to lawyers.Footnote 57 The central point of this literature is that ‘many ethical infractions result from a combination of situational pressures and all too human modes of thinking’.Footnote 58 Tricky situations and poor decision-making are as – and maybe more – important than individual character. I cannot discuss all the possibilities, but I want to describe some of these all-too-human modes of thinking – ‘frailties’, for short – and show how they can amplify the adversarial habits of a zealous lawyer.
As lawyers, we are demonstrably (and likely unwittingly) prone to assessing cases as stronger just because decisions on those cases are taken for clients rather than for others.Footnote 59 This ‘team loyalty’ bias renders our judgements weaker. It can lead lawyers to overestimate the likelihood and size of case wins. Furthermore, if our client is a hallowed institution, or our opponents are seen as morally degenerate (Horton was seen as a disloyal leaker, SPMs were portrayed as thieves and liars), we are prone to moral intensification.Footnote 60 Moral righteousness makes us less ethically inclined; we are more likely to do something shady if we feel that our opponent is ‘bad’ and so deserves it. Pragmatism also makes us impulsive and less principled, and we can descend slippery slopes: strategies, reasonable when unchallenged in the abstract, like Alistair Brett’s legitimate identification approach, become misleading in their execution. We are also prone to the agency effect, being more inclined to do certain unethical acts for others than we are for ourselves: the moral fillip of helping others compensates, up to a point, for our morally questionable acts on their behalf. Competitiveness, adversarialism, and being too busy can all dull our sensitivity to moral problems, as can the lawyer’s art of argument and being good at rationalising. It can become a means of moral disengagement.Footnote 61
Zeal and human frailties can form a heady cocktail, pushing arguments and evidence beyond honesty and integrity. This brings us to point 4.
4 Zeal and Cultural Identity
Lord Brougham, after his defence of Queen Caroline in divorce proceedings brought by the king in Parliament, famously celebrated zeal.Footnote 62 Clients should be served ‘by all means and expedients’, he argued. Lawyers should disregard ‘the alarm, the torments, the destruction which he may bring upon others’. He ‘must go on reckless of the consequences’, even to his own interests.
Brougham repudiated his words in later life, but they are emblematic of fearlessness. ‘Fearlessness’ is arguably the one word in the Bar’s Code of Conduct that strikes an emotional register.Footnote 63 It appears in the first paragraph of the Bar Standards Board’s introduction to its Code of Conduct: ‘Our system of justice depends on those who provide such services acting fearlessly, independently and competently, so as to further their clients’ best interests, subject always to their duty to the Court.’
And rC15 includes the requirements that:
1. you must promote fearlessly and by all proper and lawful means the client’s best interests;
2. you must do so without regard to your own interests or to any consequences to you …;
3. you must do so without regard to the consequences to any other person (whether to your professional client, employer or any other person)
It is worth observing that fearlessness is technically unnecessary here. One cannot imagine proper and lawful representation being criticised for an absence of fearlessness. It follows that fearlessness is in the text for its aesthetic, aspirational quality. It remains for its emotional impact.Footnote 64 It promotes a feeling that zeal is selfless and heroic. It may make zeal the most psychologically appealing heuristic of what it means to be a lawyer.Footnote 65
Through rC15.3 it also picks up on Brougham’s lionising of harm. The cultural appeal of Brougham’s rhetoric is not confined to the Bar or its code. I am often told by practising solicitors that what defines their ethics is, as Lord Hunt professed as part of his review of legal services, that ‘client first was bred into me’.Footnote 66 An analysis of differing personal values of lawyers suggests zeal might be underlaid with self-serving values rather than selfless ones.Footnote 67 And, of course, it rather goes without saying that, when paid hourly, zeal and lawyers’ economic interests are heavily aligned. This may or may not explain the extent of the legal costs paid by the PO.Footnote 68
My concern about zeal is, in some ways, a subtle one. If, for instance, we take the dictionary definition of zeal as ‘great energy or enthusiasm for a cause or objective’,Footnote 69 for instance, the quality seems rather admirable. Energy or enthusiasm is merited if it does not cloud judgements of appropriateness and, where it is merited, restraint. Fearlessness might tip the lawyer towards foolhardiness as often as it summons courage. The main alternative theories to the standard conception tend to emphasise a Dworkinian notion of justice or commonly accepted notions of morality as the lodestar of lawyering,Footnote 70 but even they emphasise that zeal is often or sometimes desirable, typically when defending in criminal cases.Footnote 71 And I would certainly accept that lawyers sometimes need courage to resist pressure against them making proper arguments or encouraging them to compromise their clients’ cases unfairly. Indeed, a more robust defence of SPMs when they were being prosecuted might have tempered the extent of the disaster. Unusual effort and courage were likely necessary for the victories in Bates and Hamilton. To give one particular example, the legal team that first argued for Ground 2 in the Hamilton appeal were Paul Marshall and Flora Page (now KC). A little-known fact is that the more serious ground that led to the Court of Appeal saying many of the convictions were an affront to justice was pursued in the teeth of considerable pressure to not do so. History might have been quite different had they acceded to that pressure.
In one sense, the problem is a simple one: zeal is treated as the singular, pre-eminent trait of professionalism when it is not and should not be. In particular, zeal and our human frailties push restraints to the back of our mind when they should be closer to the front. Ethical thought and practice need to reflect psychological, sociological, and economic realities. These realities already push lawyers, particularly when well resourced, towards zeal when cases like Brett’s suggest the need to pull back. I would tend to go further than the professional codes, which already make zeal subordinate to the interests of justice. I would reframe the issue as one of proper rather than zealous representation and take steps to dial back its aesthetic register because it can unbalance lawyers when balance may be most needed. This would include removing fearlessness from the Bar’s code and challenging or qualifying some of zeal’s sister concepts.
5 Zeal’s Sister Concepts
Zeal’s sister concepts are ancillary justifications offered up to support a zealous approach to a case. Luban had a similar idea: he called them adversary system excuses.Footnote 72 The ideology of the legal system is adversarial, and that fact is often used to excuse conduct that would otherwise be regarded as questionable. The classic example of a legitimate adversary system excuse is when a defence lawyer defends their client by putting the prosecution to proof and cross-examining their witnesses (within limits) even if their client has confessed their guilt because of the burdens placed on the prosecution to prove their case.
There are a couple of zeal’s sister concepts that I think are worth dwelling on briefly as giving rise to problems. It is a party’s right, a mark of the rule of law, to be allowed – and lawyers may argue that they are required – to take any ‘properly arguable’ point.Footnote 73 ‘Properly arguable’ is a low bar, and judges are reluctant to suggest that breaches have occurred when lawyers have ducked under it. For something to not be properly arguable requires an argument to be hopeless or bound to fail.
A second example would be the claim that a lawyer is not the judge of his client’s cause and so does not have to investigate the truth of their client’s case.Footnote 74 These are part-truths which close minds to the complexities of the situation. Brett went beyond not judging his client; he created him a new, illusory ‘truth’. Interestingly, you could see how his illusory view was based on an arguable case theory (Horton was capable of being identified legitimately) but executed in a misleading way (they began by identifying him legitimately). Nor does not judging your client mean never doing due diligence on what they say. And bringing every single arguable point in a civil case creates an untenable mismatch between zeal and proportionality, for example.
6 Law Not Morality
A particular sister concept of the standard conception is a claim made about lawyers and morality. Lawyers often say they do not do morality: we advise on law not morality, they say. They do so alongside the claim that they are not morally accountable for their clients’ actions.
This argument can be disingenuous: if you assist a client in an immoral act, its legality does not mean you are not morally accountable.Footnote 75 As Luban bluntly puts it, ‘Loyalty outweighs the evil of the cause – except, of course, that it does nothing of the sort. Evil remains evil, and loyalty to evil remains just that: loyalty to evil.’Footnote 76 Moreover, SRA guidance suggests a solicitor may sometimes be professionally accountable for lawful activity: ‘A solicitor is independent of his client and having regard to his wider responsibilities and the need to maintain the profession’s reputation, [they] must and should on occasion be prepared to say to [their] client “What you seek to do may be legal but I am not prepared to help you to do it”.’Footnote 77
Lionising amorality can also be a way of doing morality whilst pretending not to. Rob Atkinson has argued that the standard conception embraces ‘sophistry in the service of a distinctly diminished form of political justice’.Footnote 78 To boil his idea right down: a lawyer’s claimed neutrality is not virtuously amoral; it is one-sided, one-eyed morality. Neutrality and the operation of zeal are heavily skewed by the inequality of arms towards the interests of those with power and resources.Footnote 79 Lawyers are not, or at least not often, summoning what Markovits calls (after an idea from the Romantic poet John Keats) negative capability to restrain their own moral positions; they are usually asserting non-accountability as comforting philosophical window-dressing whilst they follow the money. The ways in which law firms assert control over the ‘political’ pro-bono activity of their lawyersFootnote 80 give us further reason to doubt that non-accountability is a principle which holds much real sway when contested, particularly by the business needs of the firm. The standard conception, in some ways, just puts a rather plastic moral veneer on market values: who pays wins.Footnote 81 Amoral non-accountability may also help leverage fee levels.
This happens whilst economics and bureaucracy mute the moralities of those with limited resources. They have their cases filtered through the merits and means tests of government or third-party funders; their tactics may be similarly constrained and their seeking of ‘justice’ curtailed by the costs of losing. Hugh Grant, hardly the poorest individual, being forced to settle his hacking claim against Rupert Murdoch’s newspaper empire may illustrate how the law allows one-sided zeal to operate when resources are unbalanced. News Group Newspapers (NGN) said ‘the out-of-court settlement was reached “without admission of liability” and that it was “in both parties financial interests not to progress to a costly trial”’.Footnote 82 Grant said:
I would love to see all the allegations that they deny tested in court … But the rules around civil litigation mean that if I proceed to trial and the court awards me damages that are even a penny less than the settlement offer, I would have to pay the legal costs of both sides.
My lawyers tell me that that is exactly what would most likely happen here. Rupert Murdoch’s lawyers are very expensive. So even if every allegation is proven in court, I would still be liable for something approaching £10 million in costs. I’m afraid I am shying at that fence.
The system allows deep-pocketed defendants to defend cases and protect themselves against the risk of adverse judgment by making a sizeable offer that it is economic madness not to accept. Money keeps talking in the hope justice stops walking.
The Bar’s ‘cab rank’ rule, whether you support it or not, aligns with the commercial and reputational interests of the Bar better than with access to justice.Footnote 83 Suggesting one represents oil and gas clients or Russian oligarchs because of a belief in the ‘rule of law’ is the figgiest of fig leaves. The justification offered is unlikely to have been the reason for action and yet it is offered as such.Footnote 84 The alignment of practice with money goes well beyond confining zeal to the well-resourced. Judging firm, and fee-earner, reputations on fee-earning has long been linked with the erosion of professionalism.Footnote 85 League tables measure ‘eliteness’ on profit per equity partner. Commercial firms squeeze out morality that might offend clients in other ways; some US firms drive out volunteering for progressive causes, even from their lawyers’ private lives.Footnote 86 President Trump’s recent actions in attacking lawyers through executive orders allegedly for taking cases of the kind he disapproved of are a very public, more powerful, and so more troubling example of a well-established private practice
A corollary of Atkinson’s argument is that only a select few get to really make arguments, claim rights, manage facts, and assert their own moral claims. As the SPMs have experienced, everyone else is more often subjected to them. The powerful get to take advantage of phoney neutrality in ways that can be abused.
The courts struggle to handle such sophistic advantage-taking. The Amersi case is an example of the difficulties courts have.Footnote 87 Mr Amersi brought a libel action against ex-Conservative MP Charlotte Leslie that was said to be abusive and a SLAPP. He claimed:
Nothing could be further from the truth.
The right to bring a legal claim is a fundamental right in a democracy, and it is my wish, as is well within my right, to challenge the defamatory allegations that have been made about me by the Defendants in a court of law in order to vindicate my reputation.
Amersi’s claim failed because his lawyers did not plead ‘serious harm to reputation’ as they were required to do. Presumably they could not plead that or they would have done so, although one cannot rule out the possibility there is some other explanation. The judge, Nicklin J, said Amersi’s barrister had not ‘seriously argued’ otherwise, a clue that the case was poor or weak, though perhaps not unarguable. The judge declined to consider whether it was an abuse as the courts understand it but listed all the behaviours in tension with a solid case for legitimate vindication.Footnote 88 He said there was an exorbitant approach to litigation; complexity was increased without tangible benefit; it was wholly disproportionate and cannot have had regard to the overriding objective; there had been a deliberate and tactical use of multiple proceedings; and there was collateral evidence of the desire to embarrass the Conservative Party (which was not a legitimate purpose of litigation).
Judges often avoid issues of abuse and impropriety, preferring to decide cases on other grounds. Issues of abuse and impropriety slow them down. They are likely to be hard fought, involve the drawing of high-stakes or distasteful inferences that require greater care than other findings (calling someone a liar, for instance), and may increase the likelihood of appeals. One can see why a judge would think that discretion may sometimes be better than valour, but not confronting the behaviour more squarely can also signal a tolerance of poor conduct. Such caution is one reason why the courts cannot protect the rule of law from abuse alone; they need the professions to take their own obligations seriously, and they need the regulators to step in when they do not. Powerful actors also have many ways of avoiding the court’s scrutiny, including settling cases, before judges get anywhere near them. Most SLAPP-like problems take place away from courts. This emphasises the importance of lawyers’ ethics and their guardians. A rule of law perspective that concentrates on access rights to courts fails.
7 From Moral Neutrality to Moral Sensitivity
I want to move towards a conclusion by holding in mind Atkinson’s idea of hypocritical, lop-sided morality and Brougham’s fearless disregard for harm to others. I also want to take a moment to let emotion into the argument. I make no apology for this emotion, and call upon it as a signal of our human sense of morality – a morality that should, I argue, inform our judgements whilst not dictating them.
We should, when thinking about lawyers ethics, think of those like: Alan Bates, sacked and slandered by the PO; Tracy Felstead, imprisoned aged nineteen, after refusing to apologise for a crime she did not commit; Jo Hamilton, kept out of jail because the entire village pulled together, paying extraordinary sums for her so-called debts; Noel Thomas, imprisoned in his fifties, initially in Walton jail, until that point a pillar of the community; Seema Misra, jailed when pregnant; Lee Castleton, bankrupted at tremendous cost to him and his family; and Janet Skinner, who, when imprisoned, felt she had to insist her children did not visit her.
The shadows cast on their lives by these events is beyond extraordinary.Footnote 89 They were harms inflicted in large part by lawyers.
Lawyers distancing themselves from harm may be part of the reason they make the mistakes they do. An ethic of fearlessness encourages lawyers to ignore the cost to these people as simply the price of doing business. It is moral anomie, part of a logic that renders them hired guns. Zeal’s sister concepts form scripts that become semi-automatic weapons: I must take this client. My client has given me these instructions. I must follow them if I can argue them. I can disregard any harm and not judge my client.
These scripted simplifications switch off moral sensitivities. Whether disregarding harm is theoretically justified or not (my view is that it is not), the Bar’s professional code, and the court’s attitude to hard-fought commercial litigation, encourages it to be ignored but the dangers of that should be plain, and the courts and the professions should rethink.
Zeal discourages reflection. It makes us more likely to miss the time when our client does not have a right to make a claim; or when our actions are an abuse or involve the taking of unfair advantage; or when our zealous interpretations look rather like, or become like, lies. Sometimes it encourages things that are lies.
The rule of law demands that lawyers attend to the values of the system:
It is a critical test of the freedom inherent in our democratic society that those accused (usually by the State) of committing criminal offences can and should be represented by capable criminal advocates, independent in spirit who, subject to the rules of law and procedure which operate in our courts and to the dictates of professional propriety, are prepared to put the interests of their clients at the forefront and irrespective of personal disadvantage. Similarly, advocates instructed to prosecute crime must be impartial, balanced and fair. These are the values, to the great advantage of the rule of law in this country, that have long been embedded in the practice of advocates before our criminal courts. Those who have the responsibility for the regulation of advocates (whether barristers or solicitors) are imbued with the same sense of the centrality of independence and mindful both of the need to maintain standards and the critical importance of supporting professional independence.Footnote 90
Loyalty is an important part of any professional relationship, and the proper protection of legality, of which rights are a part, is important too. But lawyers can trip themselves up with adversarial logics and their own self-concept. As Lord Hoffman has emphasised, lawyers owe divided loyalties.Footnote 91 As Lord Thomas said, advocates are responsible for strategy on a case, not the client.Footnote 92 As Lord Justice Jackson said, lawyers must take particular care not to mislead.Footnote 93 As Baroness Hale has noted, privilege is given to enable lawyers to give advice sensible as to conduct.Footnote 94
The problem is not, usually or only, cleverness and arrogance. It can be opportunism or desperation, grasping for one point that lets us help our client, or makes amends for our mistake, and allows us to seem in charge of events. We can resist disclosure this way. We can be fantastically precise. We can advise that something is fundamentally sound when it is not. Ethics begins in the half-light of hasty decisions and sugary phrasing. Most lawyers do not think they are gods, but the logic of partial facts and any available argument is a logic of expedience and sometimes extremism. In Chapter 7, I will be explaining how it drives cover-ups.
We need to think radically about how to dial down zeal and consign self-regarding fearlessness to the history books. If the profession is really to promote justice or the rule of law, it needs to change the way it thinks and behaves. We know now how expedience ends. It ends with the list of problems faced by the victims of the scandal. They have not been let down once, they have each been let down many times, harmed by a legion of lawyers still desperately trying to avoid responsibility. Often, though not always, those lawyers were in the wrong: some negligent, some reckless, some lacking in integrity, some – I am incredibly sorry to say – probably criminal. Some do not even have an arguable excuse. And, as all good lawyers know, not having an arguable excuse is a pretty low bar.
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