November 08, 2018

Have You Looked at the Model Rules Lately? Your Ethical Role in the Global Anticorruption Movement

Kindra Mohr

With the recent growth of various anticorruption laws, anticorruption legal institutions, and enforcement mechanisms, it is unsurprising that lawyers have an important role to play in the fight against corruption. They are the drafters and innovators when it comes to creating anticorruption laws, regulations, and international standards, and they are on the front lines of the litigation battles involving corruption charges. Lawyers also have tremendous influence over their clients’ conduct, whether in the public or private sector, and they have the ability to encourage a client to conduct transactions in an ethical manner. In this way, the legal profession is a crucial resource to help deter and combat public–private corruption. On the other hand, lawyers can advise their clients in ways that will allow them to circumvent anticorruption laws and regulations. The impetus for such advice can originate from the lawyer’s belief in what is best for the client or from a client’s insistence that the lawyer pursue what may fall in an ethical “grey zone.” Ultimately, lawyers may be left at the center of an ethical dilemma.

In response to the rise of corruption and bribery investigations and caseloads, law firms have become more attuned to the role of the legal profession in the anticorruption movement. This movement has provided the legal profession with a number of business opportunities that did not exist in previous decades. Furthermore, while many practice areas are experiencing reduced intake, this area continues to provide profits in the wake of the financial crisis and global economic downturn. This is especially true as governments increase their vigilance and as corporations become more desperate to secure a deal.

However, it is a matter of simple economics that has driven the majority of lawyers into the anticorruption movement. The anticorruption cottage industry within the legal profession has only emerged within the last ten years, corresponding with the rise of several international initiatives to combat illicit public–private transactions across borders. Many lawyers who work in this area of law approach the business in terms of supply and demand and miss the ethical importance of their work.

Revisit the Model Rules

Take a moment to dust off your copy of the ABA’s Model Rules of Professional Conduct to see how the legal community’s efforts in the fight against corruption go beyond economics. The Model Rules may refresh your memory or provide new insight on the ethical role in the anticorruption movement (Model Rules of Professional Conduct, Am. Bar Ass’n (2012), available at www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct.html). Although the rules do not mention the words “corruption” or “bribery,” it is not difficult to find the connection between them and the professional obligation to uphold the principles of honesty, integrity, and fairness that undergird the anticorruption movement. Furthermore, the ABA takes a strong stance against corruption and has a number of global initiatives in place to curb corrupt practices in public–private transactions. This is not to suggest that representing clients zealously and supporting the fight against corruption are free from choice or conflict; there are likely to be more ethical “close calls” than clear-cut legal answers in this regard. Nonetheless, the rules provide a framework for lawyers to follow when strategizing for clients in anticorruption matters.

Several rules are pertinent to the fight against corruption and it is worthwhile to highlight some of them here. First, Rule 1.2 addresses the “Scope of Representation and Allocation of Authority between Client and Lawyer.” Its paragraph (d) prohibits the attorney from counseling a client to engage in conduct that the attorney knows is criminal or fraudulent, as well as from assisting a client in such conduct. Accordingly, paragraph (d) prevents the attorney from helping a client engage in corrupt practices and illegal and/or fraudulent conduct under the law. It also encourages attorneys to discuss the risks of such practices and conduct, which may dissuade some clients from pursuing them.

Second, Rule 3.5(a), “Impartiality and Decorum of the Tribunal,” requires that attorneys refrain from seeking to influence a judge, juror, or potential juror, or any other official through any illegal means. The rule holds the lawyer personally responsible for attempting to bribe or coerce members of the judiciary or jurors while acting as an advocate on behalf of his or her client.

Third, under Rule 4.1(a), “Truthfulness in Statements to Others,” and the corresponding Comment, attorneys are prohibited from making false statements of material fact or law to a third person. This includes misrepresentations containing partially true but misleading statements or omissions. The rule is lenient with regard to price “bluffing” and similar tactics during negotiations. However, it clearly forbids the attorney from helping a client submit a fraudulent bid proposal or lying to a public official about a potential contractor’s experience and qualifications, for example.

Fourth and possibly most relevant, Rule 8.4, “Misconduct,” covers dishonesty that may not rise to the level of false statements or may not occur during the course of representation. This catch-all rule proscribes activities that reflect adversely on the lawyer’s ability to practice law. This includes violence, breach of trust, serious interference with the administration of justice, and even a pattern of repeated minor offenses—all of which demonstrate an indifference to a lawyer’s duties to the profession and legal obligations. If a lawyer is knowingly attempting to help a client inconspicuously skirt anticorruption laws or regulations and disobey international treaties, the lawyer may well be violating Rule 8.4.

Whether conduct amounts to a violation will depend on a number of factors, such as severity, intent, and consequence; however, the existence of the catch-all and the other rules indicates to the profession that the principles of the anticorruption movement stand on solid ground with the ABA.

Beyond Economics

Despite the relationship between the rules and the anticorruption movement, the legal community is largely unaware of how the ethical standards of the profession directly coincide with supporting, and even promoting, anticorruption efforts. In order to maximize the beneficial role that lawyers can play to advance the fight against corruption, the legal community needs to become more aware of its ethical place in the broader movement. Although enforcement is improving, anticorruption legal regimes have a limited effect in reducing the supply of and demand for private–public misconduct, and they are incapable of pursuing this enormous undertaking unilaterally.

Since the passage of the Foreign Corrupt Practices Act (FCPA) in 1977, the international community has become more conscious of the heavy costs associated with private–public corruption and has taken steps to stamp it out. For the most part, international anticorruption efforts have culminated in the creation of legal regimes and corresponding investigatory and enforcement mechanisms designed to minimize corruption in private–public transactions. Legal regimes like the FCPA, the U.K. Bribery Act, the Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention, and multilateral development bank sanctions procedures have made progress in the fight against corruption. This has been accentuated by the recent prosecution of major global economic players for extensive violations of anticorruption laws and treaties.

However, corruption is a trillion-dollar enterprise, and those who participate and benefit from corruption have been successful at perpetuating it (Press Release, Acting Deputy Attorney General Gary G. Grindler Speaks at a World Bank International Meeting, Dec. 8, 2010, www.justice.gov/iso/opa/dag/speeches/2010/dag-speech-101208.html). In view of current trends in corruption, the legal profession must look beyond economics and become more aware of its ethical obligations in terms of the fight against international corruption. The ABA’s Model Rules provide a foundation for the legal community to take a more aggressive stance toward corruption. In looking to the rules, the legal community can increase its impact on the fight and help the international community launch a more effective offensive against corruption. In addition, greater awareness on the part of current practitioners will also serve to prepare the next generation of lawyers to advise their public and private sector clients of the costs of corruption and lead to the creation of a more robust anticorruption legal framework.

In all, while the international community will never completely eradicate corruption, it must turn to the legal profession in order to realize success in its anticorruption efforts. Without considering its ethical role in this fight, the legal community will not maximize its effectiveness in the battle against corruption, which in any event will not be any easier in the foreseeable future.

Kindra Mohr

Kindra Mohr (kindra.mohr@us.pwc.com), a member of the ABA’s Anticorruption Committee, works on anticorruption matters for PricewaterhouseCooper’s Forensic Services practice in the Washington, D.C., area.