CLA News / Attorneys Defend the Right to Independence in the Face of Attacks by Devon McLean
An attorney’s right, and obligation, to maintain independence from their clients stands as a bedrock principle of the commonwealth legal system. The principal allows “unpopular”, morally or ethically ambiguous (or even unambiguous), or guilty clients to engage and instruct counsel, who are free to act on those instructions while maintaining independence from the interest of their clients.
Across the commonwealth, legislation governing the legal profession and rules of professional conduct not only encourage, but actually require attorneys to take cases within their expertise, regardless of their personal opinions. The “cab rank” rule is one such example, the principle of which may have existed as early as the 16th century, but which was more recently codified in the United Kingdom’s Bar Standards Board handbook. The “cab rank” rule requires barristers to accept instructions from a client despite the identity of the client, the nature of the case, the source of funding (public or private), and any belief the barrister themselves may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.
Even where the “cab rank” rule does not exist, the principle remains. More than 30 years ago the United Nations made a declaration on the independence of lawyers from the cause of their clients, in the 7 September 1990 Basic Principles on the Role of Lawyer, declaring “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
Despite these firm declarations of the independence of attorneys, attorneys across the commonwealth continue to come under verbal and physical attack for representing their “unpopular” clients.
Worse, often these attacks come from their own governments. In 2022, the UN Special Rapporteur on the independence of judges and lawyers rereported the trend as a “global increase in practices that undermine, limit, restrict and hinder the practice of law”.
For example, in November 2022 the CLA issued a statement condemning the 28 October 2022 arrest and detention of Tamieka Clarke, member of the Bar Association of Guyana, following her having given advice to her client that he had a constitutional right to remain silent.
In January 2023, litigator Tim Prudhoe, member of the Bar Association of the Turks and Caicos Islands (among others), was lambasted by a Turks and Caicos Islands government official for his representation of plaintiffs in judicial review proceedings challenging the denial of their application for Turks and Caicos Islander Status, an immigration designation akin to citizenship but providing additional benefits. A former Chief Minister and then sitting member of the Commission whose decision was under review, made comments in a Facebook post, a primary method of communication for the government in the TCI, that included: “I would like to inform the Prudhoes and all the other exploiters who clearly demonstrate that they don’t give a hoot about the TCI governments nor its people, that you are now barking up the wrong dang tree… … [sic] So Mr arrogant attorney…So all you Prudhoes, when you have exhausted your futile exploitation of the courts here, you may go to the privy Council if you like. People like you in particular, have already done enough harm to our country.”
In August 2023, Jacqueline McKenzie, immigration solicitor in the United Kingdom, was the subject of what has been called a targeted campaign by the UK’s Conservative Party to undermine her reputation on the basis that she as a “lefty” lawyer represented “criminals”. The attack followed Ms. McKenzie’s work to prevent deportations to Rwanda and was criticized by a 9 August 2023 joint statement of the Bar Council and Law Society, which read “Language and actions that unfairly undermine confidence in the independence of the legal professions, and potentially risk the safety of lawyers, will ultimately undermine confidence in our entire justice system and the rule of law.”
These and similar attacks on the independence of the legal profession persist, underscoring the importance of the continuous reaffirmation of the principle of independence.
In March 2023, the CLA adopted declarations in the “CLC 2023 Goa Declaration on preserving and strengthening the independence of the Judiciary and on securing the independence of the legal profession” that:
- Lawyers must be free to perform all their professional duties without threats, intimidation, hindrance, harassment or improper interference or influence.
…
- Lawyers must not be identified with their clients and/ their clients’ causes or interests, as a result of performing their professional duties and functions.
In November 2023, “Attacks on the legal profession” was identified as one of the key priorities of the International Bar Association’s (IBA) Rule of Law Forum at its annual conference in Paris.
In what might be seen as a counterproductive act to that key priority, a proposal was put forward at the same annual conference to add a note to Principle 5 of the IBA’s Principles on Conduct for the Legal Profession questioning “whether a lawyer’s ethical behaviour should be shaped purely by conformity to the interests of their client… without proper attention being paid to their other professional responsibilities”. In other words, should attorneys be held responsible for the consequences of advocating for their clients’ interests?
Ultimately it was determined that IBA Council would not consider the proposed amendment, but that the policy committee would give it further consideration. Impliedly, this is not the last that will be heard regarding the proposal.
In June 2024 the Law Society of British Columbia, Canada, sought injunctive relief against the proposed Legal Professions Act, which it called “constrained by unnecessary government direction and intrusion”, citing concerns that “As legal professionals represent clients whose interests often diverge from those of government, there must be trust that the legal regulator is independent of government influence.” The proposed legislation sought to increase oversight of lawyers by the government at the expense of independent regulation of lawyers, among other things. As of the drafting of this article, the ruling on that injunctive application is reserved.
What is clear is that attorneys throughout the commonwealth are not alone in defending their right to independence. The support of organizations such as the CLA, IBA, law societies and bar associations remains crucial to the fight.
Devon McLean
Attorney at Stanbrook Prudhoe
Turks and Caicos Islands
Devon Mclean regularly leads litigation over real property disputes, employment matters, and representing banks and private asset managers in enforcing their financial agreements. Before joining Caribbean based law firm Stanbrook Prudhoe, Devon practiced law in Ontario, Canada where she litigated for several years both in firm and in-house before returning to the Turks and Caicos Islands.
