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29 May 2023

The war in Ukraine, solicitors and the rule of law

When Russia invaded Ukraine just over a year ago, many large and distinguished law firms abruptly terminated their retainers with their Russian clientele. Some of them publicly justified this as an expression of their “values” or of their desire to “do the right thing”. The Solicitors Regulation Authority (SRA) condoned their action, announcing on 4 March 2022 that:

“Many firms […] are considering who they feel comfortable acting for. This is highly unlikely to be a regulatory matter. […] The current situation with the conflict in Ukraine is clearly novel, and whether there is a ‘good reason’ for terminating a client retainer in response will be a matter for the courts to decide, on the individual facts.”[1]

Other legal regulators echoed the SRA’s stance. The Law Society of Jersey, for example, was more explicit. It announced that:

The Law Society considers that, in the current circumstances and specifically in relation to Russian or Belarusian clients, reputational concerns or issues may, additionally, be considered to represent ‘just cause’ to justify termination of a relationship.”

The SRA’s guidance deserves scrutiny. The implication that a solicitor can legitimately sack a client only because they have become uncomfortable about their continuing to act is mistaken.

For over a hundred years, solicitors’ rules of practice endorsed by the common law have held that a solicitor is never entitled to terminate their client’s retainer unless there is good reason and upon reasonable notice. For instance, Lord Esher MR held in 1894 that solicitors should not easily be able to dump their clients, leaving them with the task of trying to find fresh representation.

The inhibition that the “good reason” condition creates has been especially applied in the context of litigation; that by continuing to act, the solicitor is helping the court to administer justice. Explicitly or by implication, the rationale for this inhibition has been to uphold the rule of law and to promote access to justice where litigation is concerned.

The root of the SRA’s stance as to the licence that solicitors enjoy to terminate their client retainers is its claim that law firms, in the wake of Russia’s attempt to annex Ukraine, confront a situation so unexpected and dramatic that it amounts to some brave new world or paradigm shift. In other words, the war in Ukraine – despite all the other wars that have ravaged Europe and elsewhere – is “clearly novel”.

This is a fallacious claim and dangerous territory for a professional regulator. It engenders a climate of moral exceptionalism within the profession; solicitors feel empowered to redefine their established ethical obligations and begin to take decisions based on ideologically driven forms of special pleading.

Unfortunately, by adopting this stance, the SRA has (no doubt inadvertently) fuelled what Putin has claimed to the people of Russia to be the true reason for the West’s (over)reaction to the invasion. It gives credence to Putin’s assertion that the West nurses underlying anti-Russian sentiments and so has exploited the invasion to achieve its long-term goal of crippling and isolating Russia.

The truth is that Russia’s invasion of Ukraine is not nearly as significant as the SRA contends. It is not novel, whether clearly or otherwise. The regulatory questions engaged by acting for clients associated with the prosecution of a war – and thereby tainted by suspicions of immorality or even criminality – are not novel but common.

They are no different from the questions that solicitors acting for Russian clients confronted (or should have confronted) when Russia invaded and annexed Crimea in 2014, or when solicitors continue to act for Saudi clients despite the horrifying war in Yemen, or Chinese clients despite its seizure of Tibet.

The SRA’s position is impossible to square with its own Principles and Code of Conduct. Code of Conduct Rule 1.1 instructs solicitors not to “unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.”

If a solicitor terminates a retainer merely because they feel uncomfortable acting for a Russian client, this is exactly what Rule 1.1 prohibits. Breaching the very first conduct rule regulating solicitors is self-evidently a “regulatory matter”.

The SRA has green-lighted a new set of norms (“values” and “doing the right thing”) to justify decisions to offload unpopular clients. In so doing, the SRA has encouraged an increasingly fashionable but false and pernicious view that law firms should be associated with their clients, or that clients who during the course of the retainer appear no longer to subscribe to the values of those whom they instruct can be terminated. Whilst this might appear to be a principled stance, it is quite the opposite.

It erodes the principle that solicitors – in the words of the UN Basic Principles on the Role of Lawyers – “shall not be identified with their clients or their clients’ causes as a result of discharging their functions”.[2]

It means that solicitors assume the role of judges, deciding for themselves the rights and wrongs of their clients’ causes. And it precipitates a descent into moral subjectivism, whereby lawyers decide which clients should benefit from or sacrifice the right to representation, simply because their perceived values are (or have become) objectionable.

Faced with egregious breaches of international law by Russia, it is all the more important that English solicitors uphold the rule of law, including by adhering to their professional ethical duties when acting for all clients, including those from Russia.

The war in Ukraine, for all its abhorrence, is not of a nature or magnitude that justifies a novel recalibration of those duties. Access to justice does not sleep during wartime.

It might be thought that this argument only applies to criminal defence work; that a person put on trial for a crime, no matter how heinous, should never be deprived of a defence lawyer. But even in this field, there are worrying trends.

Several years ago, Harvard Law School Professor Ronald Sullivan joined the defence team of Harvey Weinstein. There were protests on campus and he was eventually sacked.  The protesting students issued a statement congratulating Harvard for having “done the right thing”.

Certain criminal law firms in the UK now refuse outright to represent any man accused of sexual crimes against a woman. This is a worrying illustration of what can happen when lawyers become regarded as supporters or allies of their clients; or conversely when they are perceived as condoning their clients’ wrongdoing.

When we allow the court of public opinion to determine whom a lawyer may represent and how, we are not “doing the right thing”. On the contrary, we undermine the rule of law, because we allow popular ideologies (whether reactionary or “woke”) to replace the legislator and judiciary in resolving legal disputes concerning competing rights and interests.

Anyone who thinks otherwise should recall one of the paradigm accomplishments of the Nuremberg trials. The defendants, accused of having committed the most appalling atrocities, were nonetheless granted the right to a fair trial and representation by a lawyer. Importantly, this was in stark contrast to the Nazi Party, which had persecuted lawyers who represented Jews and others considered undesirable and unworthy of legal advice according to National Socialist doctrine.

This principle extends to any legal representation concerned with the resolution of disputes and the determination of liability. If, for example, the state chooses to sanction a person, the financial and reputational effects are enormous. The law has created a statutory mechanism for disputing the designation. Solicitors should not face criticism for using this mechanism to challenge what may ultimately turn out to be an unlawful state decision.

The history of such challenges, as illustrated by the former President of Egypt Hosni Mubarak’s lengthy but successful battle to lift his EU designation, is evidence that countries and international organisations all too often deploy sanctions as an unlawful form of economic warfare. The ability to test whether the state is acting arbitrarily is essential to the rule of law – even more so during wartime.

Yet some politicians seem to think the opposite. The Government has named and shamed “amoral” law firms who have acted for Russian clients, regardless of the context. This is not only an exercise in abject hypocrisy, given the documented links between Russian money and political influence, but an unprincipled encouragement to forfeit the protection of the law.

Unfortunately, politicians who express judgments about the perceived morality of lawyers and their clients – whether wealthy Russians or impoverished asylum seekers – embody the erosion of the rule of law incited by the Government.

It is consistent with its embrace of law-breaking as a form of policy expression, from breaching international law in the context of the Brexit agreement in Northern Ireland to the recent Illegal Migration Bill and its erosion of the protections afforded by the Refugee Convention.

Solicitors should not be browbeaten by these attacks. They should be commended when they act for unpopular clients, so that those clients are not left to face the power of a hostile state or media on their own.

Thus, when law firms sack their clients on the basis of “values”, the SRA should be asking: whose values? It is all very well to talk about a conflict of values between a solicitor and the client, but if the client suddenly becomes a pariah, they do not lose their rights. And when law firms start to define themselves as an extension of their clients (the mantra “we are our clients”), this is a dangerous step away from the principle of an independent legal profession.

In post-war America, there were barely any white southern attorneys prepared to act for black plaintiffs in civil rights cases. They were cowed by the white-controlled Government and media.

This seems shocking now, but it is equally shocking to recall that only 15 years ago, Buckingham Palace was throwing a lavish banquet for President Putin; our politicians were queuing up to do business with Russia. Political and popular moods change with the times, influenced by competing notions of the public good. The law exists to stand apart from – and mediate between – these diverse views, not to be in thrall to any one of them.

One year on from the invasion, some of the initial moral panic amongst our profession seems to have dissipated. OFSI reports that it has received hundreds of applications for licences from law firms seeking consent for the payment of legal expenses.

Clearly, many solicitors are now acting for sanctioned entities, regardless of what they said 12 months ago. In November 2022, the SRA issued detailed and helpful new guidance for solicitors on compliance with the sanctions regime, but it has not revoked or reconsidered its earlier guidance on which this article has focused.

It should do so. That guidance was misconceived and conveyed a misleading impression of the true nature of a solicitor’s regulatory duties. The SRA should take the strong and unambiguous stance that the rule of law is strengthened when solicitors agree to act for the unpopular or disadvantaged.

[1] SRA | The importance of complying with Russian financial sanctions | Solicitors Regulation Authority

[2] Basic Principles on the Role of Lawyers | OHCHR

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