Conference Netherlands Bar Association (Nederlandse Orde van Advocaten)/International Bar Association
Opening words before the panel discussion during the annual IBA Bar Leaders Conference on ‘The image of ethics in the legal profession’ on 15 May 2008. Netherlands Bar Association (Nederlandse Orde van Advocaten)/International Bar Association.
Ladies and gentlemen, fellow lawyers,
Thank you for asking me to speak to you here today. The theme you will be discussing this afternoon – the image of ethics in the legal profession – is of special interest to me, both as a jurist and as state secretary responsible for the legal professions.
I am also extremely pleased that you are meeting today in Amsterdam. The judicial district of Amsterdam has the largest number of lawyers in the Netherlands, and is also the most diverse. It is home to large firms with an international advisory practice, but also to smaller ones that represent only people of small means. No matter how divergent they are, all these lawyers practise their profession on the basis of the same core values.
This is not something that should be taken for granted, however. We must admit that these core values seem to be subject to some devaluation. It is a process not limited to the law: other professions are also confronted with it. The worldwide debate that followed the bookkeeping scandals, questioning the way accountants practise their profession, is the most obvious example. As Kurt Vonnegut said,
"We are what we pretend to be, so we must be careful about what we pretend to be".[1] The greater our pretensions, the more cautious we must be.
The image of the lawyer has changed over time. Until well into the previous century, lawyers were primarily viewed as lawyer statesmen. First and foremost, they were devoted to the public interest. Lawyers were eminently respected professionals who were proud of their standing in civilised society. They were there to safeguard the quality of the constitutional state; they considered it an honour to promote the interests of their clients. Whether they received a good fee in compensation was of secondary importance. This meant that it was also taken for granted that lawyers would devote themselves to the causes of people of smaller means.
This has changed in recent decades. Under the pressure of a liberalised market, the lawyer statesman seems to be making way for the engineer who does not entertain many ethical scruples about offering his legal knowledge and skills against payment. Because what is happening in the legal profession?
A growing economy and internationalisation have brought about a sharp rise in the number of cases. The size of law firms has thus grown as well. Cases have become more complex and societal relations more business-like. Greater importance is attached to knowledge and learning: lawyers are paid to win. This can lead to ethical frictions. As lawyers aim to improve turnover and to make a profit, their professional ethics may be jeopardised by an attitude of pragmatism and instrumentalism. There is a growing danger that not professional ethical standards and values, but business and economic considerations, determine the boundaries of professional conduct.
We need to ask ourselves whether we really want the services provided by lawyers to become so dominated by economic principles. Is creating more turnover the only goal? Greater volume and higher turnover result in erosion of the public aspects of the profession and its exercise. In the long term, this is bound to entail a risk to the integrity and quality of the legal system as well as to the position of those who seek justice.
This same tension between profit and profession is something we also see in the European Union in its encouragement of the free movement of services – meaning that there may be no restrictions to a free market. This cannot always be reconciled with the standards set for a lawyer statesman, who is bound by certain core values, values that are sometimes obstacles to the operation of market forces. A lawyer who stands for independence, impartial promotion of interests, integrity, confidentiality, expertise and public responsibility for proper administration of justice, cannot do everything in a commercial sense that he would be able to do without these core values. Sometimes a lawyer has to turn down a client to avoid a conflict of interests. Sometimes a client is better served by an amicable settlement than by a long and protracted case. This is the dilemma between profit and profession. It is up to us, the legal profession, to jointly develop a contemporary version of the classical officium nobile, the noble profession, to find a new equilibrium between profit and profession.
The core values of the legal profession safeguard the operation of the legal system, which is something we cannot do without. Naturally, this is a requirement for a democratic state under the rule of law, but it is also a condition for healthy economic development. This demands good access to justice in a legal order in which the legal profession possesses expertise, independence and integrity.
In the Netherlands, the core values I have just named became the focus of discussion in 2006 when a committee, at the request of Dutch Parliament, investigated the role of lawyers in the constitutional state of the Netherlands. Its conclusion was that the increased operation of market forces had caused the core values to shift to the background. Reformulation of the core values led to a new awareness process.
The European Union also needs to become a forum for discussion on the core values so as to sharply delineate the boundary between profit and profession. The European Union has come to see that continuing to think along economic lines alone does not do justice to the practice of the profession in a civilised society. In my view, the Council of Bars and Law Societies of Europe (CCBE) has an important role to play in this debate.
The fact that the core values are still vibrantly alive is proved by the Code of Conduct of the International Bar Association. This code underscores the importance of professional conduct in the proper administration of justice. It states that the international legal profession, one that cuts across so many cultural differences, has a shared vision of the role played by lawyers in ensuring access to justice. This is a great good. In saying this, I am aware that not all lawyers are in a position to serve this purpose everywhere in the world. If necessary, they must be able to rely on those who can exercise their profession in independence. A good network, professional contacts, via organisations such as the IBA, are indispensable for this.
Ladies and gentlemen,
Your participation in this conference proves the importance of professional conduct on the part of lawyers. It is something we must cherish. This afternoon several dilemmas will be outlined to you. As you judge them on the basis of your own cultural background, it will make the discussion particularly fascinating and valuable and give a powerful impetus to these core values in practice.
[1] Kurt Vonnegut, Mother Night. New York: Dell, 1976.