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.
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