Lord Neuberger warns of ABS ethical dangers

The Supreme Court President has warned that alternative business structures as well as conditional fee arrangements are “concerning” developments and could threaten the ethical duties of lawyers.

Speaking on ethics and advocacy at the Royal Courts of Justice, Lord Neuberger explained that the risk of a “conflict of interest” in an ABS was clear.

Warning about the profit imperative, he said: “The investors will often have no interest in lawyers’ ethical duties and will ultimately only be concerned with the bottom line.”

He added contingency fee arrangements as well as success fees would give lawyers a vested financial interest in litigation and raise the possibility of conflicting interests.

He said: “One must … be concerned with a change which increases the temptation for a lawyer to fail to accord with her ethical duties.”

He added: “If we really believe that lawyers, and indeed other professionals, should not be placed in a position of conflicting loyalties the case for success fees may appear to many people to look a little shaky.”

However, Lord Neuberger conceded such fee arrangements would widen access to justice and added he hoped lawyers’ commitment to ethical standards would be “sufficiently robust to withstand the temptations, both conscious and unconscious, to which these developments could give rise.”

Conflict is something any advocate “worth her salt will be very used to dealing with” he added, explaining that conflict of interest is “inherent” in the role: “Indeed, the potential for conflict could be said to exist even where an advocate is asked to advise on merits: the more optimistic she is, the more likely she is to get a brief fee.”