The duty to ‘act in the best interests of the client’ has always troubled me.  First, what does it really mean?  Second, who makes the ultimate judgement on whether a lawyer has, or has not, so acted?  These questions are especially important when professional judgements are evaluated with the benefit of hindsight but are made ‘in the moment’, sometimes without all the facts and always in the light of a client’s expressed and unexpressed thoughts.

But it was the view expressed in the Post Office Horizon Inquiry by one of Post Office’s external lawyers that really made me stop in my tracks: “in an adversarial system, it is my absolute duty … to act in their best interest”.  I had often heard the duty prayed in aid by solicitors seeking to justify their actions when later questioned.  However, to hear it expressed as an absolute duty (therefore overriding all other considerations) did not sit well with me.  And for it to be used to justify circumstances where – yes, admittedly with the benefit of hindsight – the client’s best interests apparently entailed knowingly, and often misleadingly, taking any and all steps to ensure that innocent individuals were financially and psychologically destroyed (and in some cases imprisoned) I simply could not process.

My interest is in regulation and professional ethics.  I do not seek to point fingers, or rush to a possibly ill-informed judgement: it will be for others to make the ultimate call on professional conduct.  What I have been keen to do, though, is to explore the basis for, and meaning of, the duty to ‘act in the best interests of the client’.  I don’t claim to have all the answers, or to have been able to consider all the nuances of the circumstances and pressures in which that duty must be discharged.  But I have sought to unpack the many facets of the duty so that the profession, its clients, its regulators and civil society can have a more transparent conversation about what it should mean and how it should be expected to play out.  As part of the Independent Review of Legal Services Regulation (IRLSR), I have therefore published a working paper to explore the issues and invite discussion.  I have done this in part to provide a more common language for the discussion of ‘best interests’ and in part to counter the assertion that the duty always prevails and that if a lawyer does what the client asks they must necessarily be treated as having acted in their best interests.

The nature of the duty

The first point I wish to make is that the duty to act in a client’s best interests is both relative and qualified.  The claim that the duty is absolute simply cannot be sustained.  The regulators are quite clear that if there is a conflict between a client’s interests and the ‘higher’ obligation to the public interest or the rule of law, then those higher duties prevail.  But more than this generalised expectation, in relation to the ‘adversarial system’ mentioned by the lawyer above, the Legal Services Act 2007 could not be clearer: those who are authorised to exercise a right of audience or to conduct litigation (that is, those regulated as participants in that system) have a duty to the court to act with independence in the interests of justice, and this duty will “override any obligations which the person may have” if those are inconsistent (section 188).

So it is not an absolute duty.  Further, it is not a duty to identify and pursue whatever might be in the client’s interests.  The word ‘best’ is the qualification.  Not everything that might be done in the pursuit of the client’s interests (whatever they might think) could be said to be in their best interests.  A range of factors must be taken into account in reaching a judgement.

It is true that lawyers should not be making decisions for their clients (who will often have autonomous decision-making capacity to make up their own minds on what should be done) but should instead be acting on their behalf.  Lawyers are retained to carry out their clients’ wishes and instructions.  In fulfilling this duty, lawyers have obligations as agents, as fiduciaries, as regulated persons and, as I proposed in 2024, as members of a ‘public profession’.  These obligations often mean that lawyers cannot – and must not – simply do their clients’ bidding but must undertake a wider ‘best interests’ assessment.  The lawyer cannot override a client’s wishes (though must caution and possibly withdraw from the retainer in cases of illegality), but the assessment might lead to a conversation with the client about whether or not a course of action is truly in their best interests given the likely consequences for the client and others.

Who decides?

The short answer is that the client decides on their own best interests – assuming that they have the requisite capacity to do so.  It is then the lawyer’s function to act on the client’s behalf to fulfil those interests.  However, if the client is contemplating something that is illegal, the lawyer must advise the client not to carry that through – and, if the client still insists, to withdraw from representation.

On the other hand, if the client is considering something that is ill-advised, morally reprehensible or would possibly result in public condemnation (tax avoidance, for instance), the ‘best interests’ conversation with the client should take place, with the lawyer pointing out the reasons (legal and otherwise) why the client might not wish to pursue their wishes.  This might be characterised as a broad conversation about where their actual or true best interests lie.  Having counselled against something that is not illegal, the lawyer will be obliged to carry out the client’s instructions if the lawyer’s ‘best interests’ advice is not accepted.

This presents three positions: (a) a choice about whether or not to accept the client or matter in the first place (this is the point at which the lawyer’s own moral objections to the client or their cause can legitimately be used to decline representation); but once the retainer is accepted then (b) a duty to advise against illegality and withdraw from representation if the client persists, though (c) still an opportunity to caution against ill-advised actions but coupled with a duty to continue representation if that caution is ignored.  However, these instances of clarity can be clouded by an infinite amount of grey in, around and between them.  This is where the power of a professional ethos can help and support practitioners in reaching the right outcome.

Pursuit of a client’s best interests

Once lawyer and client have a sense of where the ‘true’ best interests lie, the question then turns to how the lawyer sets out to pursue them.  The point to be emphasised here is that the often-stated duty of ‘zealous representation’ does not mean riding roughshod over all other considerations and parties.  Lawyers must regard themselves not as hired guns but as members of a public profession who are also bound to raise wider public interest concerns as part of their duty to the client and the advice they offer.

It is certainly acceptable to advance a client’s cause robustly (even with a weak or tenuous case),  But underpinning these issues should be a recognition that it is in the public interest for all citizens to be able to pursue or vindicate their legal rights in a public process of justice.  It is then not in the public interest for meaningful participation in that process to be intentionally denied to one party by another (or their representative) taking unfair advantage of an imbalance in the relationship.

Consequently, it should not be acceptable for litigation to be conducted in such a way that the main objective is not the determination of rights or obligations but to deny another’s legitimate participation in the claim – hence the resistance to SLAPPs (strategic litigation against public participation) or abusive litigation more generally.  Also, it should not be acceptable to conduct litigation (especially weak cases) in such a way that denial of full participation becomes an illegitimate collateral purpose.

Neither of these approaches is, to my mind, consistent with pursuing a client’s best interests (as the usual reaction of judges demonstrates).  The use of scarce public resources for such game-playing of the justice system is not consistent with the wider public interest or the ethos of a public profession truly seeking to uphold public trust and confidence.

Conclusions

This post is a highly summarised version of extensive and detailed analysis.  Perhaps a couple of quotations from the paper’s conclusions will help to pull some threads together:

the qualified duty to act in the best interests of a client can variously arise from a lawyer’s status as agent, fiduciary, regulated practitioner, and member of a public profession.  There is often considerable overlap in the duties and obligations of these roles, but it is only in the status of a member of a public profession that all of them apply.

As analysed here, it may be that not every action by a lawyer is as an agent; not every action as an agent gives rise to a fiduciary duty; not every regulatory obligation is imposed because the regulated professional is an agent or fiduciary; and not every aspect of acting in a client’s best interests is caught by the general law of agency or fiduciary obligation and by professional regulation.

However, a member of a public profession cannot choose not to be bound by the general law, by regulation or by their own professional; norms and ethics.  This means that lawyers are never just a ‘hired gun’ who must give unchallenged effect to the client’s every wish, however illegal, immoral, inconsiderate or unwise.  There is also an ethical backstop.

Finally (and importantly):

I would suggest that the professional duty to act in a client’s best interests is almost impossible to discharge as a prescriptive duty where the clients themselves have not identified clearly what those interests are.  Even where they have, it is still not a question of simply doing what they say they want.  Lawyers must not ‘turn a blind eye’ to anything untoward, and they must exercise purposeful curiosity about it.  The duty is not therefore discharged solely by some positive mission to identify what those best interests are.

It is also about understanding what outcomes, actions and behaviours are such that, negatively, they could not be described as being in the client’s best interests.  In other words, it is as much about lawyers understanding what those best interests are not as it is about what they are – especially if there is a breach of their duties as an agent, fiduciary, regulated professional or member of a public profession.