Law firm ‘ethical infrastructure’ should assess whether to serve Russian market: ethicist

As more Western companies sever or reduce engagement with Russian markets in the wake of Russia’s illegal invasion of Ukraine, a leading Canadian legal ethicist says law firms should also work responsibly to end the provision of legal services to individuals or entities complicit in the outcast Russian President Vladimir Putin regime.

Dalhousie University law professor Richard Devlin, who also chairs the Canadian Legal Ethics Association (CALE) but was not speaking on behalf of CALE, said that in addition to complying with the various rules of applicable professional conduct — and taking into account any business, reputation, and personnel considerations — Canadian law firms should consider the morality of providing legal services to persons or entities with close ties to Putin or the Kremlin (i.e. not all Russians).

Richard Devlin, law professor at Dalhousie University

“We [lawyers] have somewhat different obligations than McDonald’s,” or other companies whose primary goal is to maximize shareholder interests, Devlin explained. “We are here to achieve a public good in the public interest. And part of that is being true to our customers, being loyal to our customers and providing them with appropriate representation, but … that’s just part of the conversation,” he said. “When we provide legal services, we are complicit in power structures. We are complicit in empowering or disempowering people. We are not neutral actors. We use our legal skills, knowledge and abilities either to support something or to challenge it.

To suggest that morality – i.e. the principles distinguishing right from wrong or good and bad behavior – is irrelevant in a law firm‘s multi-factor calculus of where and with whom to conduct its business and providing legal services, “is just plain wrong,” Devlin suggested. “We have specific responsibilities as lawyers, but that is never disconnected from the larger political context… the economic context or the moral context in which we work.”

Gowling WLG cited morality as a factor in its March 9 announcement that it is “leaving Russia” in an “orderly” fashion “as we seek to transfer the business to our team in Moscow.”

The firm, which provides intellectual property and other services through approximately two dozen mostly local legal professionals, explained that “this decision is based on our values ​​and our strong sense of what is right. We will no longer accept new instructions from Russian customers, sanctioned [by governments] or not, and we will terminate relationships with Russian clients in a manner consistent with our professional obligations.

Gowling WLG then expressed shock and deep concern over the growing humanitarian crisis in Ukraine, which has seen more than 2.3 million Ukrainians flee their homeland since the February 24 Russian invasion.

“Gowling WLG stands in solidarity with the Ukrainian people,” the law firm promised. “We are working closely with our charity partners – including the Red Cross and the UN Refugee Agency – to help deliver humanitarian aid to those most in need in Ukraine and the surrounding region. “

Gowling’s announcement follows announcements by Norton Rose Fulbright and a dozen other international law firms that announced client reviews and suspensions and/or curtailments of their Russian business.

As of March 11, more than 340 companies around the world had announced full or partial suspensions of their Russian operations, or complete shutdowns, according to Jeffrey Sonnenfeld, a professor at the Yale School of Management.

The growing list spans the gamut of world-renowned Western companies in such important sectors as oil and gas, technology, financial services, transportation and consumer goods sectors, and includes service providers professionals such as Deloitte and Grant Thornton.

The dozen law firms on Sonnenfeld’s list have announced various measures in response to Russia’s aggression, ranging from client notices to ceasing representation of individuals or entities controlled by or directly related to to the Russian state or the Putin regime, to the total withdrawal of services. Among those Sonnenfeld identifies are Norton Rose Fulbright, Baker McKenzie, Clifford Chance, Cleary Gottlieb, Dentons, Fieldfisher, Freshfields, Latham and Watkins, Linklaters, Morgan Lewis, Sidley Austen, and White and Case.

Devlin said Russia’s invasion of Ukraine highlighted the importance for law firms to build an “ethical infrastructure” to help ensure law firm decisions are guided not only by financial and commercial considerations, but also by ethics and morality. Knowing who the company’s customers are and what role they play in society is part of that, he suggested.

“We know that Russia did the same [illegally invade] in Crimea in 2014,” noted Devlin, who also made a point of revealing that a family member is of Ukrainian descent. “A law firm should have been aware of what was going on [in 2014] and who their customers were then,” he said. “And they should be prepared to say ‘no’ to their customers, despite the business they will bring them – and those conversations should happen through their ethical infrastructures.”

He advised law firms to be proactive and plan now, especially since Russia is not the only oppressive regime waging an illegitimate war.

He pointed to the risk of other conflicts on the horizon, including fears that China could invade Taiwan, which China considers part of its territory. “Should [law firms] operate in these jurisdictions, whether in Myanmar, whether in China, whether in Russia, whether in Belarus? he asked. “I think these are conversations that need to take place about the potential benefits of working in these countries and what are the potential downsides?”

‘What is our purpose here?’ … There needs to be space and structure within a firm to have those ethical conversations that are just as important as the business conversations that tend to predominate in decision-making in at least some law firms .

The answers don’t always come easily, he acknowledged. “Because it’s true that you can try to work from within, and try to introduce standards that we consider to be credible standards… I think you have to say ‘What kind of work are we doing in this country? ? What kind of things do we encourage? What kind of things do we legitimize? … What are our values ​​here? Are we really trying to promote democracy here? Are we trying to promote human rights? Or are we simply here for the financial rewards that this commitment brings? »

Devlin said a company’s ethics infrastructure should include senior associates and possibly a designated ethics officer, whose job it is to ensure that conversations continue about the company’s ethical obligations – at the beyond things such as conflicts of interest – including how the company implements equality values. , diversity and inclusion. “It often happens in Australia. It’s starting to happen to some law firms in Canada,” he noted.

If you have information, story ideas or topical advice for The Lawyer’s Daily, please contact Cristin Schmitz at [email protected] or call 613 820-2794.

To see here for free access to Law360’s coverage of the war in Ukraine.

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