Once, this was not a difficult question to answer.  When I became a barrister in 1977, my answer would have been immediate and unequivocal.  Like many of my generation, I was the first in the family to go to university; and then to gain a legal qualification was a matter of great pride.

But, almost 50 years on, things are different.  Lawyers are no longer held in such high esteem (either collectively or, often, individually); media stories abound of lawyers who are said to have ‘crossed an ethical line’; and the public brush of concern tars everyone.  I find the question more difficult (and, to some degree, uncomfortable) these days.

So is current sentiment just an enhanced reflection of longstanding animosity towards the profession collectively?  Is this tide irreversible?  I’d like to think so, but it may not be easy.

Questionable ethics

Too many recent developments in the legal sector have called into question the ethics and integrity of some members of the legal profession.  They have attracted adverse comment from politicians and the media, and caused embarrassment and concern to the regulators and professional bodies.

These developments have included successive and disturbing revelations about the role of lawyers in the Post Office’s pursuit of those wrongly accused of financial crimes in sub-post-offices.  The use of abusive non-disclosure agreements or threats of litigation intended to hide illegal or questionable behaviour or silence public investigation or critics has led to public condemnation.  And the representation of supposedly undesirable or unworthy clients (such as kleptocrats) or causes (including activities that lead to environmental harm) has created ripples of consternation in many quarters.

In many cases, the proffered justification that the lawyers involved are simply pursuing their professional duty to act in the best interests of their clients does not sit well with the outcomes of their actions or with public expectation of lawyers’ ethics.  These attempts at justification bring into sharp focus whether those actions are in fact consistent with their wider obligations to the public interest, the rule of law, and the proper administration of justice.

It is now more than four years since the main report of the Independent Review of Legal Services Regulation (IRLSR) was published.  The catalyst for the Review was the market study carried out by the Competition and Markets Authority in 2016.  The CMA concluded that the legal sector was not working well for consumers.  So, too, did the IRLSR Report.

The CMA subsequently said that it was broadly supportive of the proposals in the main report.   Although political appetite for further regulatory reform of the Legal Services Act 2007 has remained weak, the Justice Select Committee did write to the Lord Chancellor in March 2024, saying: “in our view it would be wrong for the Government to ignore the conclusion of Professor Stephen Mayson’s independent review that many of the recent issues relating to regulation are evidence of the fundamental flaws of the 2007 Act”.

Time to revisit ‘the public interest’

The principal recommendation of the IRLSR Report was that the primary objective for the regulation of legal services should be promoting and protecting the public interest.  Given the central importance of the concept of the public interest in the regulatory objectives of the Legal Services Act 2007 and in the recommendations of the IRLSR Report, a new supplementary report revisits and significantly expands earlier work of mine on the meaning of ‘the public interest’ in the regulation of legal services.  The implications and implementation of it are explored in much greater depth than before.

In using the public interest to judge the actions by lawyers referred to above, the foundation of law as a profession is critical.  The privilege of professional status has its origins in the licence granted to an occupational group on behalf of the public.  It is a key component of that foundation that there is a reciprocal obligation on professions to serve the public (as represented or characterised by the public interest). 

This duty is best captured in the concept (and affirmed in the new report) of law as a ‘public profession’.  In this, the duty to the public always outweighs any conflicting duty to the client: in short, the public interest trumps client interest.  Unfortunately, this understanding does not appear to permeate modern legal practice. It needs to be restored.

The conclusions of the new report are:

• It is possible to give ‘the public interest’ practical meaning, and that can be used as a frame of reference for decisions that need to be made when regulators or practitioners need to be seen as, and to justify that they are, ‘acting in the public interest’.
• The definition of public interest confirmed in the report emphasises two principal factors, namely, supporting the fabric of society (including the rule of law and the administration of justice) and the legitimate and equal participation of citizens in society (including access to justice and the absence of arbitrary or intimidatory behaviour).
• It is just as useful to conclude that certain actions or behaviour are not in the public interest (because they undermine or deny either or both of the principal factors above). In other words, it is as valid to assess ‘acting in the public interest’ by exclusion as by inclusion.
• Lawyers are not just ordinary market participants whose foremost obligation is to act to secure their clients’ interests. Instead, they are members of a public profession and owe a primary duty to society to secure the public interest ahead of clients’ interests and self-interest.
• The structure and enforceability of private transactions and property rights in accordance with the law are enabled and sustained by the public nature of the rule of law, the administration of justice and the role of lawyers. Accordingly, subject to the strict and appropriate application of client confidentiality and legal professional privilege, even otherwise private matters can be a legitimate public concern when those matters offend the public interest.
• The public nature of the obligation to act in the public interest is not served by silence or mere assertion but should be explicit and transparent. This requires articulation (in public), accessibility (by the public), and accountability (to the public).

Conclusion

The concept of the public interest is pivotal in many ways.  First, it encapsulates the essence of a fair society, and the accountability of public institutions for the legitimate participation of citizens in it.  Second, it is central to the regulation of legal services by virtue of being a regulatory objective.  Third, it offers the foundations of a profession that exists to promote and support it. 

A fundamental conclusion of the new report is that any claim by lawyers to be a ‘professional’ and part of a ‘profession’ cannot be taken seriously unless and until the members of that group are standing on, and not beneath, the minimum floor that is set by and maintained in the public interest.

In short, the defence of ‘acting on instructions’ cannot be allowed to stand as a free pass to any lawyers who, having in some way acted contrary to the totality of their professional duties, claim to have fulfilled their duties and acted in the best interests of their clients simply because that is what the clients told them to do.

If lawyers can recapture their identity and commitment as members of a ‘public profession’, with its primary duty to serve the public interest ahead of client interest and self-interest, then there remains hope that the public perception and standing of lawyers can be restored.  At that point, I could say with confidence that I remain proud to be a lawyer.