Ethics and politics

Neville Sarony October 22, 2021 10:24

The furore over Mayer Brown rescinding their retainer to represent Hong Kong University’s demand for the removal of the memorial to those killed in the Tiananmen Square massacre raises some interesting legal issues.

In the current climate of fear generated by the drive to eliminate everyone deemed unpatriotic, it is entirely consistent that the University’s governing body is desperate to prove where its loyalty lies.

Inconvenient historical events have to be air brushed out of the public memory.

However, apparently, some 28 human rights and civil society organisations worldwide signed an open letter calling on Mayer Brown to drop HKU as their client.

The letter claimed that Mayer Brown had violated its mission statement to make a positive difference in the lives of Hong Kong citizens.

In what may or may not have been a response to the letter, Mayer Brown rescinded its retainer but that, in turn led to that pillar of patriotic rectitude, C.Y. Leung, calling on all “Chinese state-owned institutions in Hong Kong, all universities funded by the local government, and Chinese clients with dignity” to boycott Mayer Brown.

The open letter, Leung asserted, amounted to political interference by a foreign party in Hong Kong’s affairs.

But leaving aside this delicious opportunity for those so inclined to trumpet their unwavering support for redacting inconvenient truths, the incident raises a fascinating issue of legal ethics.

One of the most important principles governing the professional conduct of a barrister is what we, rather irreverently, term the cab rank rule.

In practice, it means that if we are asked to represent a client, provided that it is within our field of competence and for a fee within our customary parameters, we are not permitted to refuse.

The significance of this rule means that no matter how heinous the conduct alleged to have been carried out by the client, he, she or the institution will be assured proper legal representation.

In the case of a client facing, for example, an allegation of having committed an appalling criminal offence, the barrister’s personal opinion is totally irrelevant.

Priority is given to professional representation, which most would agree is paramount.

A not dissimilar analogy is with the surgeon called upon to operate on a mass murderer: what matters is the surgical procedure, not the identity of the patient.

But a solicitor is not governed by the same rigid code of conduct.

A firm of solicitors can and will accept or decline a retainer and their reasons for so doing are not impeachable.

To this extent, the solicitor is no different from any commercial entity. They may and frequently do hold themselves out as representing certain sectors of society, identifying with them and aiming to build a strong business based on that.

Some firms promote a reputation for representing those claiming refugee status or seeking immigration, others for the victims of personal injuries.

A fairly common phenomenon in the UK was for certain firms to be allied to a political party. One of the largest and most successful firms cornered the work from the major Trades Unions.

The one rule to which firms of solicitors have to adhere is not to accept instructions that will involve a conflict of interest. This can pose quite a problem for the giant firms who often try to create a “Chinese Wall” within the firm to insulate the teams representing opposing clients.

By and large it is best to avoid this situation lest there be a nagging doubt that the wall is breached by some inadvertent indiscretion.

The bottom line is that a firm of solicitors is an operation established to generate a profitable income and as such its commercial interests take pride of place subject only to their professional code of conduct.

So how does the Mayer Brown saga fit in this scenario?

The firm has a long history of representing HKU dating back to its origin as Johnson Stokes and Master. Does that matter? Only in the context of any long-standing commercial relationship. Doubtless there will be many Hong Kong firms falling over themselves to pick up the account, it is a highly competitive field.

Who knows what pressure was brought to bear on Mayer Brown by their major US based clients? The decision to rescind the retainer may well have been for valid commercial reasons quite distinct from the perception of politically motivated pressure.

If HKU has a valid basis for suing we may rest assured that there will be no shortage of firms ready to jump into the saddle.

C.Y. Leung’s call to boycott the firm will fall on many a receptive ear but is no less regrettable for politicising Mayer Brown’s decision.

Before being enveloped into the US entity in 2007, the firm of Johnson Stokes and Master was one of the top two legal firms in Hong Kong, with a regional and global outreach. As Mayer Brown JSM it became a formidable international legal force.

Undoubtedly, the partners will have considered the ramifications of rescinding HKU’s retainer and concluded, on commercial terms, that it was in the firm’s best interests to do so.

At the end of the day, Mayer Brown made a commercial decision. How it is interpreted depends upon your point of view.

In this viciously polarised world, anyone seeking to aggrandize themselves will latch onto anything that suits their agenda.

We must all make decisions for ourselves, which reminds me of the old music hall story related by the late great Billy Bennett, of the drunk who fell into a gutter in which a pig was taking a nap:

“You can tell a man who boozes
By the company he chooses
And the little pig got up and walked away.”

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Neville Sarony

King's Counsel