In the Blue corner we have the Democrat congressman from Tennessee who is pushing for a travel ban for lawyers who are said to have advised Russian oligarchs.
In the Red corner we have a British lawyer who is pushing back against the criticism of lawyers who have advised Russian clients, and indeed any sanctioned persons.
Steve Cohen wrote an open letter to U.S. Secretary of State Antony Blinken last week urging him to deny U.S. visas to a number of U.K. lawyers including Nigel Tait of Carter-Ruck, Tomlinson QC, Geraldine Proudler of CMS and Keith Schilling of Schillings. He then listed some of their activities that he claimed “have enabled malign activities of Russian oligarchs”.
As might be expected from law firms that specialise in libel law, each responded strongly to the allegations. You can read the story here.
Then U.K. barrister Jonathan Fisher QC of Bright Line Law and Red Lion Chambers felt compelled to speak up on behalf of the industry. Writing for Law.com International, he said: “It is trite to make the point, but in the light of some recent public comments it needs to be made. All persons, individual and corporate, have a right to obtain advice and representation in legally privileged circumstances.”
He went on: “It does not matter whether a sanctioned person is suspected of involvement in criminal activity.” And: “It is important to remember that even Nazi war criminals were entitled to legal advice and representation at the Nuremburg Trials.”
On a purely intellectual level, Fisher is clearly correct. To criticise the lawyers providing advice is to misunderstand the way society operates when governed by the rule of law.
And yet, the ‘even pariahs have rights’ argument assumes in it that lawyers themselves will follow the rules. As long as they’re obeying the law, they should not be questioned.
But do they always obey the rules?
In the last week, 11 trainees were found to have cheated in their online Bar exam in Singapore. This comes less than one week after formal probes began into possible cheaters on the other side of the world in Canadian bar exams.
In the Singaporean case, the judge commented on what he feared was a growing culture of cheating. “When so many applicants cheated in a professional qualifying examination in so many papers, including one for ‘Ethics and professional responsibility,’ then something is wrong somewhere,” he wrote.
“Dishonesty and lack of probity are not the only vices in question in this matter. When a person resorts to cheating in an examination, it also reveals a lack of diligence, and a propensity to take shortcuts—neither of which are sound professional qualities,” he added.
And if you think such dishonesty exists only at the junior level among people who have not even become proper lawyers yet then some people involved in an investigation in Papua New Guinea (PNG) might disagree.
Norton Rose Fulbright Australia and Swiss Bank UBS stand accused of failing to co-operate on an investigation into a controversial UBS loan. According to counsel for the country’s royal commission, Norton Rose deliberately “dumped about 3,000 documents, many lengthy, right at the heel of the hunt”. He added that the firm also did not put forward a human witness and declined to take part in the commission and recommended that Norton Rose be banned for five years from acting on PNG deals.
It is the kind of stuff that enrages politicians and adds weight to their arguments, regardless of the logic.
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Hong Kong: The Final Straw
There has been plenty of speculation in recent years about the future of Hong Kong as Asia’s financial centre. Providing clear answers on such things isn’t easy. But given legal advice is so intrinsic to every part of business life, perhaps the movement of lawyers offers one of the best indications yet on where things have got to.
The National Security Law imposed on the territory by China in 2020 has certainly had an effect. Law firms won’t speak out about this of course. Judges feel more empowered to say what they think though, so when two of them abruptly resigned from Hong Kong’s highest court last month they were blunt in their assessment.
But it is the city’s draconian rules surrounding its zero-COVID strategy that have proved the final straw for partners working at large law firms. Parents fear they could potentially be separated from their children if anyone in the family tests positive.
In an excellent study, Hong Kong correspondent Jessica Seah found at least 23 senior partners have left the city since the pandemic started, with most departing within the past 12 months.
These include partners—including five in management roles—from across the spectrum of Big Law: Allen & Overy, Baker McKenzie, Clifford Chance, DLA Piper, Herbert Smith Freehills, Kirkland & Ellis, Latham & Watkins, Norton Rose Fulbright, Simpson Thacher & Bartlett and many more.
Nine of these 23 have relocated to the U.K., six to Singapore and the rest elsewhere. You can see the whole list here.
Such decisions have not been taken lightly. Not only do these partners feel they are abandoning what they have worked so hard to build, they also have to worry about the political consequences of their actions. “There is a fear that the act of leaving Hong Kong will be perceived as us turning our backs on China,” said one partner who left earlier this year after being based in the city for over six years. “The reality is that if you want to continue to do business in mainland China, you cannot be seen as leaving China. That’s not just a personal view. It’s certainly what the firm feels.”
The exodus has left a shortage of lawyers in Hong Kong—last week Shearman & Sterling lost its last disputes partner there. Conversely, there is greater demand for lawyers in other Asian financial centres—last week McDermott, Will & Emery hired a team of lawyers from Sidley Austin in Singapore and Mayer Brown relocated London projects partner Myles Mantle to its Tokyo office.
And more Hong Kong partner departures are expected. A quick glance at some recent partner promotions suggests they are not being replaced.
Ashurst and Addleshaw Goddard both announced record partner promotions last week and Clyde & Co’s promotions were a three-year high. How many of these 68 promotions came in their Hong Kong offices? Just one. Less than in Edinburgh.
Looking more broadly at the 141 promotions announced by Skadden, Arps, Slate, Meagher & Flom, Freshfields Bruckhaus Deringer, Linklaters, Eversheds Sutherland and Pinsent Masons in recent weeks, just six—or 4%—were based in what used to be the premier financial centre for the world’s biggest market by land mass and people.
Hong Kong is not just out of fashion, it is being positively avoided.