Benjamin Bestgen: Held to higher standards
Benjamin Bestgen considers the fairness of the high standards to which we hold lawyers. Read last week’s jurisprudential primer here.
The legal profession is a deeply human one and humans are complex creatures. As a species we are capable of extraordinary feats of courage, intellect, wisdom, kindness and good judgement but also equally extraordinary callousness, depravity, greed, violence and stupidity. Most of us probably fall in the ordinary middle: we aren’t saints nor villains but embody a mix of good, bad and ugly traits, many of which aren’t easily judged objectively: a hardworking, intelligent and outspoken colleague may also be described as an insufferable careerist know-it-all who makes others look bad. A fun social networker appears as untrustworthy gossip to others. One person’s incorrigible flirt is another’s creepy sex-pest.
But what about situations where we need greater assurances that a person actually embodies certain character traits important to their role? What about positions where who you are as a person, your private conduct and how you are publicly perceived are not easily separated from your job or office?
Lawyers and particularly judges inhabit such demanding positions – let’s look at two examples.
1. As widely publicised, US Supreme Court Justice Brett Kavanaugh’s appointment to the court was one of the most dubious and contested in US history. Kavanaugh was accused of sexual assault and inappropriate behaviour towards women, allegations he denies. Kavanaugh was additionally characterised by over 2,400 law professors as biased and lacking the required impartiality and temperament to be a Supreme Court judge. He dismissed his critics as politically motivated, issued blanket denials and relied on Trumpian Republican senators to confirm him to the court.
2. Likewise a matter of public record, newly appointed Irish Supreme Court Justice Séamus Woulfe is a distinguished jurist of good repute. In 2020 he attended a social gathering at a golf club and was accused of breaching Ireland’s strict Covid-19 pandemic rules. He was called upon to resign from the court. Woulfe issued an apology and submitted to an investigation by former Chief Justice Susan Denham. Denham concluded that Woulfe’s attendance at the dinner had been ill-considered but he had broken no laws or guidelines and demanding his resignation would be unjust and disproportionate. In light of that, Justice Woulfe refuses to resign. Regardless, calls for his resignation continue.
“At all times”
We require legal professionals to be people who not just pay lip-service to the rule of law but who lead by example, behaving with integrity, honesty and respect for the law not only in discharging their duties but also in the way they live privately.
The Law Society of Ireland reminds solicitors that they are expected to observe and promote certain professional core values “at all times”, notably honesty, independence, confidentiality and the duty to avoid conflicts of interest.
The Law Society of Jersey states that members of the legal profession in Jersey must not “in their professional and personal lives” act in ways which brings, or may fairly bring, the legal profession in Jersey into disrepute.
The Law Society of Scotland notes that solicitors “[…] must be trustworthy and act honestly at all times so that your personal integrity is beyond question.”
Many other institutions regulating the legal profession across the world issue similar requirements. One reason is that law is arguably the dominant normative operating system which guides and determines how our society should function. It is not unreasonable to demand that lawyers are, and are perceived to be, fit and proper persons, trustworthy, discreet, independent in judgement and honest. This is even more important for judges, given the immense power judges are entrusted to exercise over the lives, property and civil liberties of all of us.
Moral absolutism is the view that certain actions are always intrinsically right or wrong, good or bad, regardless of consequence or intention. Absolutism is the refuge of the puritan whose worldview demands black and white, right and wrong to be clearly determinable.
Analysing moral absolutes, philosophers Plato, Thomas Aquinas and Gottfried Leibniz all pondered varieties of the same dilemma (known as the Euthyphro dilemma), namely whether something is good and just because God wills it so or does God will it because it is good and just?
Aquinas thought that the Ten Commandments embodied unchangeable moral standards underpinning most of natural law and that not even God could change them. However, God could change what individuals might deserve in specific cases – not all killings or thefts may be equally wrong.
A secular analysis can likewise determine that an absolutist position on compliance with moral or legal standards is unrealistic and probably unjust. Lawyers are human beings and despite best efforts, they sometimes fall short without meaning to. Laws themselves are not always clear either, context and facts matter and sometimes intentions and motivations do too.
What are Codes of Conduct for?
Professional codes of conduct attempt to protect the legal profession as much as society at large from clear violations and untrustworthy persons, unfit to be active parts of the legal system. Lawyers who lie to clients, mislead the court, tamper with evidence, steal, assault, embezzle, defraud or abuse their position of trust are routinely disbarred. Judges who are, or are perceived to be, biased, intemperate, corrupt, mentally unstable or act without regard for the law need likewise to be removed or the entire justice system may lose society’s trust and confidence.
The standards legal professionals are expected to adhere to are very high indeed. Even minor violations that would not really affect most non-lawyers can end a lawyer’s career: junior lawyer Adam Kemeny was struck off for dodging £650 worth of train fares, his junior status and remorse afforded him no clemency.
Separating the wheat from the chaff
In the case of Séamus Woulfe, it appears that he was duly investigated and it was found that he broke no law and didn’t deliberately violate pandemic guidelines either. The very public debate around his position and the scrutiny and humiliation that comes with it as well as the professional reprimand he may well get could be considered punishment enough. Thousands of people who aren’t judges do worse every day and evade scrutiny entirely or simply ride it out unpunished – like Dominic Cummings.
The legal profession and the general public must remain able to differentiate between a Brett Kavanaugh and a Séamus Woulfe. The former arguably should have stepped down or never have been confirmed and brings the US Supreme Court into disrepute just by sitting on the bench. The latter did something ill-considered but, assuming the Denham investigation was conducted fairly and properly, nothing illegal nor anything that could reasonably cast doubt on his suitability as a judge or good character.
For a profession very much accustomed to human flaws and shortcomings, an absolutist, “holier than thou” approach is unhelpful and likely unsustainable. Lawyers and judges are rightly held to higher standards of behaviour but fairness and proportionality still matter.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.