It is an old principle that lawyers should not be identified with their clients’ causes. But it is being battered in a new environment of accountability, social justice and amplified passions on social media. Despite being old, often emphasised during criminal cases in the past, it is not often written down. However, it does appear in the United Nations Basic Principles on the Role of Lawyers (paragraph 18): ‘Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.’
And it also appears in the International Bar Association’s Standards for the Independence of the Legal Profession (paragraph 7): ‘The lawyer is not to be identified by the authorities or the public with the client or the client’s cause, however popular or unpopular it may be.’
It is often cited in conjunction with the rule that everyone is entitled to legal representation – which is why lawyers need to take on unpopular causes. But that is a different rule, and differently based. For instance, Article 6 of the European Convention on Human Rights does grant such a right to representation in criminal cases: ‘Everyone charged with a criminal offence has the following minimum rights: … (c) to defend himself in person or through legal assistance of his own choosing.’ But there is no similar and absolute right in civil cases under the convention – the European Court of Human Rights has judged the right in civil cases to be dependent on circumstances.
Two recent incidents have brought the identification rule to the public’s attention. The first, which took place in the UK, concerned Dinah Rose QC, president of Magdalen College, Oxford, who agreed to act for the Cayman Islands in an appeal to the Privy Council, in which the government of the Cayman Islands is set to argue that same-sex marriage should remain illegal. There was a public fuss, particularly because of her Oxford college presidency. But she rode out the storm, justifying her legal role in a long and detailed statement, which cited the identification rule.
Given that her critics wondered why she needed to take on the case in the first place, she mentioned other rules as well, including the bar’s cab rank rule and the rule prohibiting the late return of a brief, since the case was just weeks away from being heard. She also argued that the case had nothing to do with the pros and cons of gay marriage, but rather the proper interpretation of the Cayman constitution.
The current controversies provide an opportunity for the legal profession to focus much more on this basic rule, both to ensure that it is properly enforced when lawyers come under attack, and to debate the tricky question of whether it should apply absolutely.