Acting in the best interest of the client is a key professional principle. It is also a principle that is sometimes in tension with other principles: the obligation to protect the rule of law and the administration of justice, and acting with integrity, in particular. This tension leaves open the question, how much emphasis should be given to the client’s interest? How zealous should lawyers be for their client? Whilst both solicitor and Bar codes emphasise the preeminence of the rule of law and administration of justice where there is a conflict between principles, I often hear lawyers state, incorrectly, that the client’s interest are paramount or – in the words of Lord Hunt – that ‘client first was bred into me’. The Bar’s own emphasis on fearlessness adds its own gloss. The idea of the zealous advocate, and in turn, the zealous lawyer, has a strong historical and philosophical pedigree.
One of the assumptions of zeal is that it is an act of selflessness on the part of the lawyers. That it is an indicator that lawyers put their clients first: zeal is motivated by benevolence to the client; they are their ‘friend’. Critics suggest this is a convenient fiction: that zeal reflects an alignment between lawyers and clients. Where lawyers zealously take an action, not clearly forbidden by law or professional codes, but which is nevertheless questionable – think, say, of creating aggressive tax avoidance schemes or a questionable but arguable justification for war: the idea that the lawyer is professional bound to zealously exploit (even create) questionable arguments for their clients is both commercially convenient and relieves them of moral responsibility for their own actions. Under this reading, zeal is founded on a false prospectus.
There is an increasingly rich psychological literature on this issue. In particular, it shows that lawyers (and other professionals) are naturally prone to identify with clients and shade their judgments about (say) reasonableness too much towards the client’s self -interest. I have had an article published today, with Rachel Cahill-O’Callaghan (Cardiff University) which looks at this. It suggests that those lawyers that are more zealous in their outlook, i.e. more inclined to advocate a risky or aggressive strategy, are more motivated by self-interest than are less zealous lawyers. Those with stronger risk-appetites appear less motivated by benevolence for the client. If zeal is self-interested, the risk that lawyers miscalculate the client’s interests is magnified. For me the results suggest the need to restrain zeal and to think carefully and objectively about the client’s interests and the lawyer’s broader obligations. Wise heads may see a better balance between a client’s medium and long term aims and these broader obligations, and reject short term, risky opportunism – even where it may help them earn more money or gain that promotion if it comes off.
The article is available here, although it is pay-walled for those who do not subscribe to Legal Ethics.