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‘Soft law’ could drive ethical change in legal practice, IBA report suggests
Members of the legal community have highlighted the discussion surrounding the capacity of soft laws to influence and shape ethical practices within the legal profession.
Grace Robbie
A new report published by the International Bar Association (IBA) revealed that soft laws developed by legal practitioners have the potential to serve as powerful tools in improving ethical practices within the legal profession.
The publication of The Role of Lawyers as Ethical Gatekeepers and Related Issues follows a roundtable discussion organised by Chatham House, with senior members of the IBA and members with support from the IBA’s legal policy and research unit co-hosting the event.
The event, which was held in July, convened legal practitioners, bar representatives, academics, and delegates from international organisations. Together, they engaged in in-depth discussions and explorations of lawyers’ ethical responsibilities when delivering legal services, particularly in the context of rapidly changing global challenges.
One of the main discussions at the roundtable, which was part of the IBA’s ongoing ethics and anti-corruption initiative, focused on the mounting pressure confronting legal professionals to align their practices with broader societal expectations. This includes prominent issues such as climate change, corruption, and human rights, along with the ethical dilemmas arising from the conflict in Ukraine.
During the roundtable discussion, IBA revealed that there was a notable consensus among participants that the establishment of guidance about ethical and governance issues for the legal profession would more effectively promote positive change than governmental intervention, which has the potential to undermine legal independence.
The participants also reached a wide-ranging agreement that self-regulation could be more effectively customised to tackle these particular issues, could be implemented more swiftly and may be thoughtfully designed than regulations formulated by external entities.
Furthermore, several participants in the roundtable discussion reached a broad consensus that implementing internally devised soft law would be instrumental in preserving the independence of the legal process. This independence is vital in “circumstances where authoritarian governments sought to undermine the rule of law and constrain the legal profession”.
However, several representatives from civil society indicated that self-regulation has not sufficiently addressed issues related to “abuses by members of the legal profession under certain circumstances”, particularly in cases involving strategic lawsuits against public participation and non-disclosure agreements.
Participants also highlighted instances where lawyers expressed how they were “unhappy” with the constraints imposed at major law firms, with this dissatisfaction leading to some of them transitioning to boutique firms that, according to the International Bar Association (IBA), specialise in what could be termed “questionable” legal work.
To address the concerns raised, IBA disclosed that a participant proposed that legal and regulatory bodies should enhance their calibration of responses to infractions by implementing interim penalties to promote improved professional conduct among lawyers.
Another individual suggested expanding non-lawyers’ involvement in the “development and oversight of legal codes of practice” to address societal concerns and standards more effectively.
