Soft law guidance, particularly when devised by lawyers themselves, could help ensure more ethical legal practice according to a new report published by the International Bar Association (IBA). 

The report – The role of lawyers as ethical gatekeepers and related issues – was produced following a roundtable convened by think tank Chatham House, co-hosted by senior IBA officers and members with support from the IBA's Legal Policy & Research Unit.

Key questions for the report included whether existing guidance is enough to meet modern-day challenges in legal practice and how law firm leaders and regulators might, or should, respond to a shift in focus towards more global, socially conscious expectations for lawyers.

Anonymised under the terms of the Chatham House rule, attendees included lawyers from various jurisdictions, bar leaders, parliamentarians, academics, senior staff from NGOs, members of civil society and corporate clients, some of whom have been critical of the legal profession.

It was agreed that guidelines on ethical and governance issues could more effectively promote positive change than government intervention, which could threaten legal independence. At the same time, self-regulation could address specific issues more swiftly and be better designed than external regulations.

Some suggested that soft law, which denotes agreements and principles that are not legally binding, could help maintain lawyers' independence when state actors threaten the rule of law.

The round table recognised that lawyers face increasing pressure from civil society, governments and the media to align professional activities with societal expectations, particularly regarding the climate crisis and corruption.

The war in Ukraine has drawn further criticism of lawyers, not least those who provide services to those associated with the Russian invasion. Fundamental legal principles, including lawyer-client confidentiality, were scrutinised as society examined whether such rules were compatible with modern ethical ideals or stood in the way of sustainable development goals. 

Others argued that self-regulation has failed to address abuses by lawyers in certain instances, such as when dealing with strategic lawsuits against public participation (SLAPPs) and non-disclosure agreements (NDAs).

Participants also noted instances where lawyers, unhappy with constraints imposed at significant law firms, have moved to boutique firms specialising in what the IBA called "questionable" legal work.

One participant suggested that legal regulators implement interim penalties to improve lawyers' behaviour. Another argued that non-lawyers should develop and oversee legal codes to better reflect societal concerns. Several warned that if lawyers do not address ethical issues proactively, governments may have to step in due to public pressure.

Participants also discussed approaches to regulation, the right to legal representation and legal professional privilege.  

The report forms part of an IBA initiative on ethics and anti-corruption and follows its adoption of two significant soft law resources – the IBA Updated Guidance Note on Business and Human Rights, adopted in 2023, and Guidance for Bar Associations, adopted in 2024. 

Earlier calls by the IBA for lawyers to act as “ethical gatekeepers” had been criticised by Nick Vineall KC when he was chair of the Bar Council, but his successor, Sam Townend KC, noted the wide range of resources open to barristers, which he said were responsive to changing developments and covered emerging issues such as NDAs and SLAPPs.

Townend said: “The Bar in England and Wales is well placed when it comes to soft law in that our code already extends beyond other strict legal obligations (as is noted in the report) such as the overriding duty to the court in the administration of justice (which includes positive duties on us at times, which would not apply but for that duty), the duty to maintain independence, the duty to not diminish trust and confidence which the public places in our profession and to act with honesty and integrity.”

He added: “The root causes of some of the emerging issues primarily need to be tackled by hard law, and we welcome the recent focus on legislative solutions to NDAs and SLAPPs.”

The report coincided with Professor Richard Moorhead concluding his final Hamlyn lecture at University College London, which discussed the ethical decisions of lawyers during the Post Office Scandal.