Taking legal advice on what is just wrong is a sticky issue

Up until now, the issue of the big commercial law firms’ role pre-crisis has got little enough attention

PETER DARRAGH Quinn is an unlikely candidate for many things – none more so than enunciating a credo that runs deep in Irish business culture.

Seán Quinn’s nephew drew the distinction between ethics and the law when he was being questioned in the High Court last Wednesday about his family’s efforts to put assets beyond the reach of the former Anglo Irish Bank. What the Quinns were doing in Russia was “wrong and unethical” he said, but it did not break the law.

Anyone with even a passing interest in Irish businesses’ ongoing struggle with recognising right from wrong will know the argument.

It is more usually expressed as: “I had a legal opinion from saying it was okay to do , so I did it.”

This convenient abrogation of conscience is the common thread – or one of them at least – that links every sorry episode in Irish corporate life, from the Beef tribunal through to the publication of the Mahon tribunal report.

How this came about is hard to divine. One school of thought would see it as just another manifestation of a national syndrome inculcated through the nascent Irish State’s voluntary surrender of control over education and many other areas of society to the church. The proponents of this argument – most of whom write in this paper – would argue this bred a particular type of morality, with the emphasis based on rules rather than individual responsibility.

It’s an intriguing argument, but perhaps overly intellectual. Few people can resist the temptation to bend the rules or worse if a lot of money is to be made.

Regardless of how this situation came about, it should be a source of deep concern to the Irish legal profession, which is increasingly being pictured as a band of willing accomplices with regard to so much of what went on.

The uncomfortable truth the profession needs to face is that for every one of these disgraced individuals and organisations, there is probably a law firm or two that puffed out its chest and tried to get publicity for its role as their “advisers”.

Until now, the issue of the big commercial law firms’ role pre-crisis has got little enough attention.

In fact, one of the more interesting phenomena of the last five years has been the way the big law firms have been able to create a firebreak between their pre- and post-crisis client base. All of them were and remain advisers to organisations and individuals who caused much economic damage. Yet all of them have ongoing roles as advisers to restructured versions of these organisations, or new roles as advisers to the bodies created to clean up the mess.

We are now starting to see these firms tying themselves up in knots explaining how they can still represent what might best be called their “legacy” clients and their “new” clients, even though the two are increasingly in conflict as various situations enter their end games.

The firms are still doing their best to brush the issue under the carpet. Anyone who might question whether what they are doing is actually a good thing can look forward to a lecture on how these firms have the highest ethical standards.

The general tenor of these communications from the firms is of the “how dare you?” variety, and they invariably play their trump card – which is that their clients don’t mind that they routinely put themselves in situations where they have a perceived conflict of interest as they chase lucrative work.

Two things spring to mind when you reflect on this argument. The first is that perhaps clients are not always in a position to judge whether their interests are best served by sticking with a particular law firm in a particular situation. The other is the simple point that if something looks wrong, then it may well be wrong.

It is the apparent inability – or unwillingness – of the big law firms to grasp this notion and engage with it that is the most difficult to understand. It hints at firms that have chosen to believe their own legal advice rather than ask themselves what is considered ethically acceptable by the society in which they function, and would at some level purport to serve.

Peter Darragh Quinn could relate to that.