The case of David vs. Goliath. On legal ethics and corporate lawyering in large-scale liability cases

ABSTRACT

A classic avenue that victims can take to hold a corporation to account and obtain redress for the harms they have suffered is civil litigation. In the past decades, such attempts have been pursued against corporations in the tobacco industry, the pharmaceutical industry, the asbestos industry or industries working with asbestos and, more recently, the extractive industries. However, it is notoriously difficult for victims whose rights have been violated by corporations to obtain effective redress in civil procedures. A rich body of burgeoning scholarly literature and policy documents has addressed the extent to which systematic and institutional factors are obstacles to victims seeking justice for corporate misconduct. In this article, we will not focus on these systemic and institutional factors but on the role of corporate defence lawyers as their functioning also impacts the capacity of victims of corporate wrongdoing to effectuate their rights. We will address the question of what can be expected from a legal-ethical point of view from corporate defence lawyers advising and representing their corporate clients in large-scale civil liability cases. As a partial answer, we will develop a critique of amoral lawyering as a working philosophy in this context. In addition, we will touch upon the feasibility of a possible alternative.

KEYWORDS:

• legal ethics
• corporate lawyering
• large-scale liability cases
• corporate social responsibility
• domination

1. Introduction

Large corporations contribute wealth to national economies and so fulfil an important economic function. At the same time, their business operations and products may pose a serious threat to the rights of large groups of citizens, be it their right to health, housing, a minimum wage, occupational safety, privacy, financial stability or equality and non-discrimination.¹

A classic avenue that victims can take to hold a corporation to account and obtain redress for the harms they have suffered is civil litigation. In the past decades, such attempts have, for instance, been famously pursued against corporations in the tobacco industry,² the pharmaceutical industry,³ the asbestos industry or industries working with asbestos⁴ and, more recently, the extractive industries.⁵

However, it is notoriously difficult for victims whose rights have been violated by corporations to obtain effective redress in civil procedures. Victims face multiple serious obstacles to obtaining remedies for damages due to corporate misconduct. A rich body of burgeoning scholarly literature and policy documents has already addressed the extent to which systemic and institutional factors are obstacles to victims seeking justice for corporate misconduct; these factors include regulatory gaps, the rules of civil procedures, the content of liability law, the role of courts and the legal aid system.⁶

In this article, we will not focus on these systemic and institutional factors but on the role of corporate defence lawyers, a specific group of private legal professionals representing and advising corporations implicated in violations of citizens’ rights.⁷ Their functioning impacts the capacity of victims of corporate wrongdoing to effectuate their rights. For instance, in transnational litigation, there are concerns that corporate defence lawyers use strategies that ‘generate […] additional (and sometimes profound) hurdles to plaintiffs having their substantive allegations judicially determined in a context where it is already so difficult to get one’s case evaluated by a court’.⁸

Adopting a context-sensitive approach to legal ethics, we will address the question of what can be expected from a legal-ethical point of view from corporate defence lawyers advising and representing their corporate clients in large-scale civil liability cases.⁹ As a partial answer, we will develop a critique of amoral lawyering as a working philosophy in this context. In addition – albeit briefly and inconclusively – we will touch upon the feasibility of a possible alternative.

Our article is structured as follows. First, we will provide a brief overview of the central features of large-scale corporate civil liability cases and the main features and justifications of amoral corporate lawyering. Second, we will expound on the central legal strategies likely to be used by amoral corporate lawyers in such cases. Third, we will offer three arguments for rejecting amoral lawyering as a working philosophy for corporate defence lawyers in this context: the corporate social responsibility argument, the weak justification argument and the domination argument. Finally, we will address whether there are alternative working philosophies for corporate defence lawyers.

Our argument will draw on examples from common law and civil law legal systems. Though special attention will be paid to Dutch large-scale liability cases for reasons of proximity, the argument is intended to be relevant in national, international, and transnational contexts, as well as to civil law and common law legal systems.

2. Large-scale liability cases and the (amoral) role of corporate defence lawyers

Large-scale liability cases involve a relatively vulnerable citizen or group of citizens seeking recompense from a powerful defendant, often a large corporation. They can be characterised by a fundamental asymmetry between the parties regarding socioeconomic power, expertise, personal involvement, and vulnerability.¹⁰ On the one hand, there is a large (transnational) corporation, a legal entity with unlimited financial resources, significant expertise and an exclusively professional involvement. On the other hand, there are (groups of) individual citizens seeking compensation for damages with generally limited financial resources, little expertise, significant personal involvement and a high degree of personal vulnerability.

Regarding the asymmetry of personal involvement and vulnerability, from the corporation’s perspective, damages might be seen as mere ‘negative externalities’:¹¹ for example, environmental and health damage caused by steel production, oil drilling and spraying fields with pesticides. By contrast, these activities might have highly negative consequences for citizens and their fundamental interests. In many cases, the corporate wrongdoing at issue infringes on fundamental human rights, such as the right to life and the right to an undisturbed family life.

In addition, mass damage cases are intrinsically asymmetrical because there is a greater monetary incentive for corporations to spend significant amounts on legal representation than there is for any individual seeking compensation. This is because corporations in mass damage cases are liable to lose much more than any individual seeking compensation could possibly gain. Partly because of this, the quality of a corporation’s legal representation is often better than that of an individual citizen.¹²

Given these asymmetries - vividly sketched also by Galanter¹³ - it is unsurprising that large-scale liability cases have formed the basis of a range of movies in which their narratives are portrayed as legal fights between David and Goliath. Think of A Civil Action (1998), Erin Brockovich (2000) and, more recently, Dark Waters (2019), Percy (2020), Arica (2020) and The Pharmacist (2020).¹⁴ In these movies, the lawyers of the affected citizens tend to be portrayed as moral heroes, whereas the corporate defence lawyers are represented more negatively. The latter use aggressive tactics and strategies as part of their undivided loyalty to their clients without considering the effects of their actions on the already troubled positions of the claimant citizens or the public interest.

One objection to this narrative of a legal fight between David and Goliath might be that, in reality, many Davids make another Goliath, like acrobats forming a human pyramid. On this view, there is no problem of asymmetry because class action lawsuits ensure a level playing field. However, reality is more complex. For instance, in the US, fees and restrictions on third-party funding undermine promising class actions because lawyers are unable or unwilling to front the costs.¹⁵ This mainly affects high-risk suits, which are more complex.¹⁶ In cases like this, there is -exceptions aside- no new Goliath. Furthermore, new regulations and Supreme Court case law have raised the thresholds for class actions, resulting in a large decline in class actions.¹⁷ Consumers and employees face the additional problem of arbitration clauses in their contracts, which are obstacles to bringing their cases to court.¹⁸

Moreover, in the European context, only five EU member states have effective judicial collective redress mechanisms in place for consumers.¹⁹ In the Netherlands, the problem of funding class actions is even greater because full contingency fees are not allowed and third-party litigation is still in its infancy.²⁰

In many cases of large-scale corporate wrongdoing, therefore, David remains just David. Let us return to Goliath’s lawyers. Unfortunately, no robust empirical research has been conducted on the functioning of corporate lawyers in large-scale civil liability cases, leaving the role of the people defending Goliath largely unexplored.²¹ Gordon already observed this lacuna more than two decades ago: ‘[I]t seems astonishing that law firms should have for so long remained almost unexplored in legal scholarship.’²²

Yet, on a more general level within theoretical legal ethics, there is a consensus that amoral lawyering is the dominant working philosophy – a philosophy that places the interests of clients above those of the public and affected third parties.²³ This has been supported by recent, albeit limited, empirical research on the way corporate lawyers perceive their role. Moorhead and Hinchley, for instance, suggest that corporate lawyers perceive their role as a form of ‘professional minimalism.’²⁴ With its strong tendency ‘to equate unethical conduct only with criminal illegality’,²⁵ this perspective is very similar to amoral lawyering.

Importantly, amoral lawyering is also defended within philosophical legal ethics as a normative ideal of good lawyering, as a working philosophy in legal practice that is fully justified. But, to what extent is this working philosophy indeed justified in large-scale liability cases, a context characterised by the aforementioned socioeconomic asymmetries? As a first step toward answering this question, the remaining of this section will set out the main features and justifications of amoral lawyering.

In the literature, this ideal has mainly been characterised by three interrelated principles. First, partisanship indicates that lawyers must function as their client’s ‘partisan’, primarily focusing on the interests of their clients within the boundaries of the law: that is, without regard to the interests of third parties, society at large, or moral values.²⁶ If the law does not place clear limits on the client, this ‘aspect of the law should also be available to the client’.²⁷ This principle of partisanship is intimately related to the notion of lawyer’s zeal encountered in the rules of professional conduct for lawyers in several jurisdictions.²⁸

Second, amoral lawyering involves neutrality: lawyers should prevent their own views, sense of life, sentiments, and values from influencing their pursuit of their client’s wishes regarding the goals to be achieved and the means to achieve them.²⁹ Importantly, this does not necessarily mean that lawyers should not express their own viewpoint on the merits of the case. In this regard, Stephen Pepper famously introduced the concept of a moral dialogue between the lawyer and their client as part of the ideal of amoral lawyering.³⁰ According to Pepper ‘A moral conversation and mutual deliberation is the aspect of the lawyer’s role in which she can have the greatest effect on the client’s moral perception and thus on the client’s moral conduct’.³¹

Finally, amoral lawyering involves non-accountability: the amoral lawyer should be insulated from moral criticism over who their clients are, what their clients have done, or what they will do for their clients within the boundaries of the law – again, regardless of the consequences for third parties or the public interest. Because it is the client who decides how to use their legal rights, it is the client, not the lawyer, who should be criticised when this use is harmful to others or detrimental to the public good.³² Together, these three principles explain the ‘amoral technician’ described by Wasserstrom: ‘[P]rovided that the end sought is not illegal, the lawyer is, in essence, an amoral technician whose peculiar skills and knowledge in respect to the law are available to those with whom the relationship of client is established.’³³

Within the liberal legal order, a standard justification of amoral lawyering is that it optimally facilitates the client’s autonomy, their freedom to live their life within the boundaries of the law according to their own conception of the good. As Pepper stressed in his classic article, the law occupies a significant position in numerous aspects of citizens' lives. Due to its complexity and limited accessibility, lawyers play a vital role in assisting citizens in pursuing their goals.³⁴ To respect citizens’ autonomy, lawyers should not impose their own moral views or preferred interpretations of the law on their client’s goals and the means of realising them. Lawyers should do what the client would have done if they had possessed the necessary legal expertise themselves.

Another justification for amoral lawyering is the ethical division of labour defence.³⁵ It boils down to the idea that ‘it is not only a right, but also a duty for professionals to attend (almost) exclusively to the interests of their own clients, because their partial activities are part of an impartial scheme providing for an allocation of professional help to all clients’.³⁶ Lon Fuller famously defended the ideal of the amoral lawyer by referring to the need for a division of labour in a legal system, which he understood as a highly argumentative and adversarial practice: ‘It is the zeal of advocacy […] that supplies the court with the facts and the thinking without which an intelligent decision is impossible’.³⁷

For instance, in the Dutch code of conduct for lawyers, the ethical division of labour plays an important role as a justification of amoral lawyering. As the preamble states, ‘The advocate’s contribution to [the] proper administration of justice is […] to help promote it by “sticking to the task,” serving the common interest of a proper administration of justice solely by fulfilling that role of partiality, with the restrictions that are imposed on it in the common interest’.³⁸

3. Strategies of amoral defence lawyers: a tentative overview

On the basis of the above description of amoral lawyering we might try to ascertain what such a working philosophy implies for corporate defendant lawyers who advise and represent their clients who are involved in civil litigation. This endeavour will, unfortunately, to some extent be speculative. One reason for this is that these strategies will depend on the concrete cases in which confidentiality between the lawyer and client plays an important role. Also, there exists hardly any literature on the general strategies that corporate lawyers use in the context of civil litigation.³⁹

Nonetheless, it seems safe to assume that an important interest of profit-seeking corporate clients in large-scale liability cases will be to reduce the risk of having to pay damages to the claimants. To get a sense of what strategies corporate lawyers in this context will follow, we may therefore use Holmes’ external perspective of the bad man’s point of view, who in assessing what to do in view of the applicable law will primarily focus on ‘the material consequences which such knowledge enables him to predict’.⁴⁰

As the corporation-client will want to minimise the damages that are to be paid to the claimants one strategy that amoral lawyers may use is to exploit the dimension of costs that inherently come with a legal procedure to advance their client’s economic interests.⁴¹ It needs little explanation that, in general, corporate defendants will have deeper pockets than plaintiffs; a massive imbalance is likely to exist between their resources and those of the plaintiffs.⁴² The amoral lawyer could then serve the economic interests of the client by using his knowledge of (the law of) civil procedures to find ways to raise the costs of negotiation and litigation for the claimants to exhaust the other side’s available resources for the litigation procedure. As Michael Jordan, attorney for R.J. Reynolds has put it in the context of tobacco litigation: ‘The aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiff’s lawyers. … To paraphrase General Patton, the way we won these cases was not by spending all of our money, but by making that other son of a bitch spend all his.’⁴³ In the Netherlands, the last two decades millions have been paid to law firms defending the Nederlandse Aardolie Maatschappij (NAM), a gas extraction company, and the State of the Netherlands in earthquake damage cases.⁴⁴

Moreover, the defence lawyer might make clear that each and every case will be discussed till the bottom and, if necessary, litigated in court. This may have a chilling effect on claimants, for the very fact that they have limited financial resources and therefore will be hesitant to bring their claims to trial. Again, these strategies have been notoriously used in tobacco cases: lawyers’ ‘tactics have resulted in many plaintiffs being unwilling to bring or unable to finance suits against the companies, thus preventing smoking and health litigation's potential to enhance tobacco control policies’.⁴⁵

Similar strategies have arguably also been pursued in the Netherlands. For instance, research has shown that only a minor number of employees who had been exposed to asbestos during work and, as a result, suffered from several serious health problems, went to court. Most of them choose not to sue their employer to avoid a ‘long, costly legal procedure [..], with high attorney fees and a painful battle in lawsuits against the former employer, in some cases still the boss of family, neighbours and friends’.⁴⁶ Moreover, victims of the induced earthquakes in the Netherlands have also been reluctant to begin or continue fighting in court because of litigation costs. One victim described the dilemma as follows: ‘I’ve seen so many people struggle with that very question: What is it worth to us to keep fighting? I can assure you that many people decide that it is no longer worth it. They take their loss, leave it at that and stop the proceedings.’⁴⁷

This illustrates that a strategy of exploiting the dimension of costs can be successful. It might not only improve the chances of winning a case, but in the words of Ostas, it could also lead to ‘a bargaining chip in settlement negotiations, potentially causing the less well financed to take less.’⁴⁸

Another strategy that may be used is to exploit the dimension of time, i.e. by using a variety of delay strategies. Importantly, lawyers possess considerable leeway as to the choices they in this regard are allowed to make. For instance, the Dutch code of conduct for lawyers simply states that lawyers ‘strive to handle the case effectively and will also make sure that no unnecessary costs are incurred at the expense of an opposing party or other parties concerned.’⁴⁹

In coming to grips with the use of this strategy, it is important to bear in mind the asymmetry between natural persons and legal entities with regard to time. Natural persons are seriously constrained by the dimension of time: All human life is limited by time; one can dedicate one’s energy to only a limited number of activities and concerns simultaneously. In contrast, the effects of the passage of time are fundamentally different for a legal entity, such as a corporation. Legal entities have, in principle, ‘eternal life’ and they can organise themselves in such a way that they can be involved in numerous activities and projects simultaneously. An amoral lawyer might exploit this asymmetry, i.e. the fact that claimants because they live in ‘human time’⁵⁰ have an existential interest in their claims being decided upon within a relatively short time as ‘human time itself has value and should not be wasted.’⁵¹ The prospect of long procedures might therefore in and of itself have a deterrent effect on the willingness of future victims to bring their claims to court.

Such strategies of delay may start already with the first notification of a claim, when responses are deliberately given after long periods of time, and claimants are strung along or are sent from pillar to post. They may continue by telling claimants that the case is being looked into but that more information should be provided, or further investigation is needed. When a negotiation stage is reached this strategy may consists of asking claimants to provide more information and to insists on the need to do further investigation on the part of the company.

In the (often rare) situation in which victims take their case to court, the amoral lawyer might use another set of delay strategies to benefit his client, such as waiting until the last possible moment to file a pleading, starting negotiations and then slowing them down or filing multiple frivolous motions. Regarding the latter, the defence lawyer can propose any theoretically imaginable defence, even when there is case law detrimental to the client or when the arguments pursued conflict with widely acknowledged facts.

Notoriously, this strategy has been employed by the defence in tobacco litigation, where, in ‘the preponderance of cases, the defence argued that there is no proof that cigarette smoking causes lung cancer’, despite the overwhelming medical and scientific consensus that cigarette smoking causes lung cancer.⁵²

This strategy of delay has possibly also been employed in the compensation of victims of earthquake damages caused by gas extraction in the Netherlands.⁵³ At first, the defendant, the NAM, argued for years that the earthquakes had nothing to do with gas extraction.⁵⁴ When this causal relationship was conclusively established, the NAM argued that the earthquakes did not cause the damage to people’s houses. When that could no longer be denied in a general sense, the NAM maintained this position in individual claims, still refusing to pay.⁵⁵ One victim reported the following: ‘You have to imagine: the court hearing is there. […] The house is a total loss, really a total loss. Then the [defence lawyer] has the audacity to say to the judge: but who tells me that a leftover grenade from World War II didn't explode in the basement?’.⁵⁶ To this day, the amount of damage was and still is consistently contested. Many victims are still waiting for compensation.⁵⁷

In the Netherlands, charges of using delaying strategies have also regularly been made in asbestos cases. For instance, DSM, a Dutch transnational corporation, allegedly did not respond to the claims until the victims of asbestos had died.⁵⁸ Additionally, Tata Steel IJmuiden, a transnational steel plant located in the Dutch town IJmuiden, has been accused of systematically employing this strategy when handling the asbestos claims of former employees.⁵⁹

In addition to cost and time, the amoral lawyer might exploit the substantial information asymmetry between his client and the claimants.⁶⁰ To this end, the client-attorney privilege might be strategically employed as an information-concealing device.⁶¹ In nearly all cases of large-scale liability, companies have direct access to all relevant information on the damage-causing events, whereas claimants have to rely on access to the companies’ information. For instance, a steel company such as Tata Steel knows which substances are used in its production processes, how those production processes work, which hazardous substances are released, whether and when there have been incidents in business operations and whether environmental regulations have been violated. Claimants need this information to substantiate their claims. However, to a significant extent, they depend on the companies to obtain this information.⁶²

Unequal access to information also plays an important role in liability cases against the financial sector.⁶³ Often, it only becomes apparent much later that a defendant company had been long aware of the harmful nature of its business operations and had chosen to conceal it. ExxonMobil is a clear example: the company had known for decades that burning fossil fuels was harmful and would warm the planet, but the company kept this information confidential and publicly denied the link, even promoting climate misinformation.⁶⁴

Most legal systems have rules requiring companies to disclose this information – though the legal obligation to disclose information is, generally speaking, more anchored in Anglo-American law than in continental law systems.⁶⁵ But even if a company has a legal duty to provide access to relevant evidence, there are still ways to make it difficult if not impossible for (future) claimants to substantiate their claims. An amoral lawyer might provide corporate clients with specific suggestions regarding their corporate retention and documentation policies to prevent incriminating facts and information from becoming public or being used by the claimants.⁶⁶ As Ostas puts it, ‘[P]erhaps the most notorious instance of a legal strategy affecting the likelihood of detection and conviction involves the destruction of documents, emails, and electronic records through corporate retention policies’.⁶⁷ Confronted with this strategy, a claimant ends up empty handed. Conversely, excessive information can also complicate the substantiation of a claim. Interpreting and successfully using such information is only possible if the claimant is assisted by experts as competent as those hired by the company. Often, this might be unrealistic for the claimant because it is difficult to find relevant expertise outside the corporate structure, not to mention the high costs of hiring expertise.

Then there is the strategic use of settlements.⁶⁸ This strategy might be used not only to keep certain claimants - those whose cases risk setting a strong detrimental precedent - out of court or to prevent judges from ruling by making use of settlements in pending proceedings. It might also be used by including confidentiality clauses that might prevent other affected citizens or the wider public from using these arrangements for future liability cases. Similarly, strategic use might be made of litigation: the defendant’s lawyer might reuse the same line of defence in other cases, thereby minimising the precedent effect of previous judicial decisions.

A relatively new strategy for corporate lawyers is to use bankruptcy and resettlement law to reduce the damages owed to victims of corporate wrongdoing. Here, legal expertise is used to prevent liable companies from paying compensation by frustrating the availability of financial funds. An infamous example is the Australian cement manufacturer James Hardie Industries. With the help of lawyers and actuaries, it relocated to the Netherlands and later to Ireland when faced with thousands of asbestos liability claims.⁶⁹ This relocation was widely seen as a scheme to reduce the damages owed to the victims, with both internal and external lawyers receiving blame.⁷⁰

More recently, Johnson & Johnson employed the ‘Texas Two-Step Bankruptcy’ strategy to limit their liability for the health damage caused to thousands of citizens by the company’s talcum powder, which was sometimes tainted with carcinogenic asbestos.⁷¹ This latest ‘innovation’⁷² in the field of corporate bankruptcy offers ‘the promise to debtors of shedding altogether mass tort liabilities in bankruptcy’ by ‘cutting off tort claimants from any further recovery’.⁷³

Finally, a range of extra-legal strategies may be used by the corporate lawyer, such as more or less subtle forms of intimidation of the claimants, influencing public opinion or science.

Of course, a more cynical view of the functioning of corporate lawyers might see the above description of the strategies used as still idealistic, because it assumes that the zeal of corporate lawyers and the related strategies are motivated by the interests of their clients. In reality, or so one could argue, it could also be ‘a convenient trope for disguised self-interest’⁷⁴ as today’s corporate lawyer is better characterised as a shareholder in a company aimed at maximising profit than as a legal professional.

4. Assessing the merits of amoral lawyering on the part of the defence lawyers in the context of civil liability cases

Below we will critically assess the merits of the ideal of amoral lawyering for the context of large scale liability cases. We will do so on the basis of the three arguments that we think are most pressing: the corporate social responsibility (CSR) argument, the weak justification argument, and the domination argument.

4.1. The corporate social responsibility argument

In the discussion of the ethical merits of corporate lawyering in corporate civil liability cases, a crucial development has been the rise of CSR.⁷⁵ CSR means that companies not only exist to serve the (short-term) financial interests of their shareholders; they also bear social responsibility for the consequences of their actions in the communities in which they operate. The concept of CSR has rapidly gained ground in recent years. According to the UN Guiding Principles on Business and Human Rights (UNGP) – an authoritative and internationally endorsed soft law instrument – companies have a responsibility to prevent or limit the negative consequences for human rights associated with their activities, products or services (the ‘duty to respect’).⁷⁶

The UNGPs are congruent with other, now widely accepted, soft law instruments, such as the UN Global Compact (UNGC) principles, the UN Sustainable Development Goals (UNSDG) and the OECD Guidelines for Multinational Enterprises (the OECD Guidelines). The OECD Guidelines also provide non-binding principles and standards for responsible business conduct.⁷⁷ According to the OECD Guidelines, enterprises should avoid causing or contributing to adverse human rights impacts and address such impacts when they occur, and they should seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products, or services.⁷⁸

Since 2011, the European Commission has expected European businesses to meet their responsibilities to respect human rights as formulated in the UNGP.⁷⁹ In 2020, the European Parliament adopted a resolution calling on the European Commission to ensure that corporate directors’ duty of care focuses not only on maximising wealth for shareholders in the short term but also on the company’s long-term interests, broader social interests and the interests of employees and other relevant stakeholders.⁸⁰

In the Netherlands in 2020, an appeal was issued by 25 professors of corporate law to include responsible corporate citizenship in the statutory duties of directors and supervisory directors of companies. Companies may not limit themselves to what is legally permitted but have a responsibility to act in a socially responsible manner.⁸¹ Recently, in the Netherlands, a bill for a Responsible and Sustainable International Business Act was submitted, which includes a due diligence obligation for large Dutch companies regarding human rights and environmental and climate risks in their global value chains.⁸²

Importantly, the current concept of CSR is based on the notion of the company’s moral responsibility for the consequences of its behaviour for both individual citizens and society. It requires companies to abide by standards that, while not necessarily legally binding, nonetheless contain moral standards based on moral values. Such moral values are, for example, not causing harm to persons, respect for the natural environment, trustworthiness and adding value to society. The concept of corporate social responsibility is thus a farewell to amoral entrepreneurship.

Also, a Dutch district court in 2021 ruled that Shell had acted unlawfully because the company had violated the UNGP standards regarding the responsibility of companies to respect the human rights of third parties.⁸³ This means that moral standards could transform in legal obligations. However, the precise extent of this obligation is not the subject of this paper. The only point to emphasise here is that it is certainly not inconceivable that taking responsibility for social goals is a legal issue for companies, not just an ethical one.

This broad trend of calling on or obliging companies to engage in CSR has consequences for corporate lawyers.⁸⁴ Not only do many of them work within large (international) companies whose internal organisation is subject to CSR regarding, for instance, climate impact, diversity and inclusion, supply chain management and employee well-being. CSR also applies to the services lawyers offer their clients.⁸⁵ From the CSR perspective, lawyers are critical intermediaries who are well positioned to use their leverage to foster better human rights engagement in their clients. As legal service providers, they are also potential enablers of negative human rights impacts caused or contributed to by their clients.⁸⁶

The IBA Practical Guide on Business and Human Rights for Business Lawyers (Practical Guide) provides guidance regarding the implications of the UNDPs for law firms and individual lawyers. However, though it offers some guidance regarding the implications for lawyers in their advisory roles (such as the recommendation that lawyers should use or increase their leverage to mitigate the risk of future harm), it says little about the implications for lawyers representing clients being held accountable by victims of alleged human rights violations.⁸⁷ That is, the Practical Guide asserts that business lawyers must take human rights into account in their advice and services and that the UNGPs are relevant for litigation and dispute resolution.⁸⁸

The Practical Guide also states that lawyers should be aware of ‘the likelihood of increased litigation worldwide arising from business involvement in human rights issues’ and that lawyers can play a key role in developing non-judicial dispute resolution processes to resolve human rights disputes ‘without the expense, uncertainty, and polarising characteristics of judicial litigation’.⁸⁹ At the same time, the Practical Guide stresses that ‘the UNGPs do not impinge upon a client’s right to assert a robust legal defence to claims that it has engaged in conduct that violates human rights, to seek judicial determination of human rights issues, and to seek legal advice on them’.⁹⁰ Notably, the guide is silent on whether and how defence lawyers should balance these professional commitments when representing and advising their corporate clients in cases in which victims are seeking to hold companies to account and effectuate their right to remedy.

Despite this silence and the scarcity of legal scholarship in this area, it seems safe to assert that a commitment to CSR by law firms and lawyers is difficult to reconcile with amoral lawyering in civil litigation in large-scale liability cases.⁹¹ As we have seen, amoral lawyering is based on the notion that lawyers should prioritise their clients’ interests, regardless of the detrimental impact on the public interest or the rights of third parties, including the right to effective redress for human rights violations. The client is free to decide how to exercise their legal rights provided they are exercised within the boundaries of the law; if they are, lawyers may follow their clients’ choices. By contrast, from the CSR perspective, lawyers should proactively advise their clients to take steps to avoid or remediate any impact on human rights caused by business operations. In other words, lawyers should take the public interest and that of third parties into account in their services to their clients.

This is relevant to corporate lawyering in civil litigation cases where human rights are at stake. From the CSR perspective, lawyers must consider the consequences of litigation strategies that might conflict with the fundamental principle that businesses should ‘prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts’.⁹²

Therefore, if we take CSR seriously, the legal right of a corporate client to a robust defence does not license corporate lawyers to contribute to situations in which alleged human rights violations remain unaddressed or the right of victims to an effective remedy is seriously undermined. By contrast, a commitment to CSR suggests that corporate lawyers should seek ways to effectuate their special role in the administration of justice as representatives and legal advisors of their clients without undermining the right of victims of human rights violations to effective remedies.⁹³ Arguably, such endeavours will confront lawyers with challenging dilemmas that must be addressed.⁹⁴

4.2. The weak justification argument

As put afore above: two important justificatory grounds for amoral lawyering that are offered by philosophical legal ethics are that of autonomy and the division of labour or functional argument. In the specific context of large-scale liability cases, these defences are rather weak. For the autonomy argument to do any justifiable work, there must be an autonomous agent, a moral, decision-making agent to appeal to. However, in the specific context of large-liability cases the client is often a large profit-seeking corporation who cannot be placed in the same category as a natural person. Corporations are a legal fiction, a persona ficta; they do not have a ‘soul to coerce, dignity to offend, or natural freedom to restrain. Nor can [they] be schooled by parents, educators, and peers into a general disposition toward sociability or law-abidingness’.⁹⁵ Thus, as clients, they are categorically missing a range of capacities that natural persons have, on the basis of which we (have reason to) value their autonomy. Hence, as McMarrow and Scheuer have put it, to the extent that ‘they are not autonomous moral actors capable of free will or autonomous responsible citizenship, they lack many of the key characteristics that justify attorney’s suspension of moral judgment.’⁹⁶

Even if we grant that corporations do have the potential for autonomy, the question arises as to what extent their exercise of autonomy is worthy of protection. As David Luban has already emphasised, the claim that the capacity for autonomy is something to be valued does of course not necessarily imply that all exercises of autonomy should be protected or facilitated.⁹⁷

In this specific context, the protection of the autonomy of the defendant, i.e. the corporations, may well come at the expense of the (capacity for) autonomy of large groups of citizens: as already argued, in liability cases citizens’ right to health, their right to safe and healthy working conditions, their right to a private life, or their right to access to justice may be at stake. An amoral lawyer will then be allowed to facilitate that corporate entities hinder the effectuation of these substantive fundamental rights of victims of corporate wrongdoing. In case delay strategies are used it may also lead to victims not being able to continue with their lives after corporate wrongdoing. Or as one claimant who tried to get redress for the damages caused by the NAM, the Dutch gas extraction company, put it: ‘There is no future. Our lives are put on hold.’⁹⁸

As to the division of labour argument: also this defence is weak. For one, the justificatory force of this argument largely depends on the moral merits of the legal system as a whole in which lawyers fulfil their professional role. However, in the words of David Luban, ‘[t]he law itself and also the way the law “works” in practice, can be “pretty awful”’.⁹⁹ For instance, in legal orders that are characterised by economic and social inequality, it can be seriously doubted whether amoral lawyering really leads to the goals that tort law seeks to realise. As Kim has put it: ‘To defend a moral (or amoral) framework of legal ethics without accounting for the radically unequal economic and social power that comprise the background conditions under which legal services are delivered is to retreat into the empty formalism that legal realists have long criticised. To put it bluntly, the legal system does not exist in a vacuum’.¹⁰⁰

More specifically, in the context of liability cases in case of corporate wrongdoing it is for instance common place that due to the social economic inequality between the parties and a lack of judicial oversight full compensation of victims is in most cases an ‘utopia’.¹⁰¹ That is, many cases are not brought to court but are settled or they get stuck in the phase of reporting or negotiating the claim. In these procedures of settlement, claimants are not necessarily assisted by a lawyer, nor is there any judicial oversight to guarantee that basic norms of fairness are met. For that matter, it could be argued that, in the settlement or pre-trial stage, insufficient formal schemes or safeguards are in place to justify appeal to the ethical division of labour defence.

It is for this reason that several authors have stressed that in the context of corporate lawyering a distinction must be made between representing a client during litigation on the one hand and that of advice on the other. In the latter situation there is no opposing lawyer presenting legal arguments or evidence that would support the other’s side of view. More importantly, there is no judge and no procedure for obtaining an impartial resolution of uncertainty regarding the facts and law. In essence, in this context the lawyer acts as both advocate and judge, and therefore they should take the legitimate interests of others and the public interest into account.¹⁰²

However, it is a serious question to what extent this distinction can be maintained. It could be argued that, in civil litigation with significant socioeconomic and other asymmetries, it is rather unlikely that the consequences of amoral lawyering will be tempered by the specific arrangements of a civil procedure. As Salyzyn and Simons put it in the context of transnational litigation, ‘In these circumstances, excessive partisanship is not checked by the machinations of the adversarial system.’¹⁰³

At this point we should address the potential critique that we have framed the amoral lawyer in a rather caricatural way and that in this regard, as Dare has proposed, a distinction should be made between ‘mere zeal’ and ‘hyper zeal’.¹⁰⁴ The merely zealous and thus more moderate amoral lawyer is only concerned ‘with those interests that are protected by law, not simply anything which happens to be in the client’s interest, let alone anything in which the client happens to be interested.’¹⁰⁵ On the basis of this difference according to Dare certain strategic uses of the law often associated with amoral lawyering could be discharged of as excesses, for instance those strategies that are primarily meant to prevent citizens going to court. Hyper-zeal according to Dare indeed risks forming an obstacle to the effectuation of the legal system as a whole and as such puts the ‘division of labour’ or functional argument in peril. For that reason, the amoral lawyer that aims to serve the legal system should commit themselves to ‘mere zeal’ thereby exclusively focusing on the legal rights of their clients, rather than on their bare extra-legal interests.¹⁰⁶

But, even if we follow Dare’s version of amoral lawyering¹⁰⁷ in practice, the difference between mere zeal and hyper-zeal will be difficult to determine. To support his claim, Dare refers to the doctrine of abuse of process, which can limit the strategies that lawyers may use.¹⁰⁸ We think that such a doctrine does not suffice. It hardly provides any ‘teeth’ to secure that common legal strategies strategies only protect client’s rights rather than their extra-legal interests, nor that these strategies do not come at the cost of preventing victims to obtain legal redress after corporate wrongdoing. For instance, in Dutch doctrine, the claim of abuse of law is only in highly rare cases accepted in cases of evidently indefensible positions and defences. In view of the right to a fair trial, according to the Dutch Supreme Court, courts should exercise restraint in concluding that there has been an abuse of procedural law.¹⁰⁹

4.3. The argument of domination

For our third critique on amoral lawyering in the context of large-scale liability cases in response to corporate wrongdoing, we take inspiration from a debate within political philosophy in which certain normative theories of justice are charged with amounting to a version of ideal theory.¹¹⁰ These theories, or so is the critique, draw upon idealised models of society, its participants and of their mutual relations. As such they ‘mak[e] social reality appear significantly “simpler and better” than it actually is’.¹¹¹ Because they are insufficiently fact-sensitive to the conditions of the real non-ideal world they cannot realise their goals. They ‘yield[…] impotent or misguided practical prescriptions’, so that the ‘collective aspirations to implement the conclusions of a theory do not result in any noticeably increase in the justness of a society’.¹¹²

The critique on ideal theory in the domain of political philosophy is also relevant for the discussion of the methodologies used within philosophical legal ethics. As to the theoretical defences of the ideal of amoral lawyering it can be argued that they show little interest in and sensitivity to the empirical conditions that obtain in a concrete legal system and to the concrete features of the parties involved. Think for instance, in the context of liability cases in response to corporate wrongdoing, of the disparity of social economic power of the litigating parties, the asymmetry between the litigating parties as to their relative (in)vulnerability due to the dimension of time involved in legal procedures, due to their personal involvement, and due to the kind of interests involved. In theories that provide a justification for the amoral lawyer these factors are either largely ignored or deemed irrelevant.¹¹³

The central arguments that are used in favour of this ideal such as autonomy and the moral division of labour in any case largely rely on idealised models of reality such as an idealised legal system, an idealised relation between the parties involved, an idealised picture of their (moral) capacities, and, - we will discuss this point in the next section- also on an idealised picture of the relation between the defendant lawyer and their clients. These idealisations render the ideal of amoral lawyering ineffective in that amoral lawyering when put into practice as a working philosophy, can hardly be said to genuinely realise these values, and in addition comes with serious ‘collateral damage’ in the form of large groups of citizens whose right to legal redress remains unmet.

The debate between non-ideal and ideal theory not only sheds light on the conception of amoral lawyering as being ineffective where it comes to the realisation of its normative goals. It also sheds lights on the fact that the idealisations that are used when theorising about legal ethics may also have an ideological dimension. Using these idealisations is far from a neutral exercise as it can structurally favour the interests of a particular group over those of other groups. Ideal theory, in the words of Mill, ‘will obscure certain crucial realities, blocking them from sight, or naturalising them, while on the other hand, concepts necessary for accurately mapping these realities will be absent’.¹¹⁴ Consequently, when applied to society it can have a reproductive and consolidative effect as to the concrete injustices, power dynamics and inequalities that exist in society.

This potential ideological dimension seems pertinent to be aware of when assessing the merits of the ideal of amoral lawyering.¹¹⁵ For instance Kim has argued that ‘[f]ar from mitigating the problem of economic inequality that afflicts our socioeconomic, political, and legal systems, the standard conception of the lawyer’s role can and does exacerbate it. Not merely entrenching power, lawyers – by simply doing what they routinely do when they privately order their clients’ affairs – can amplify power, potentially undermining the autonomy and equal dignity of individuals’.¹¹⁶

More specifically, by ignoring the actual realities that characterise large scale liability cases the ideal of amoral lawyering risks to facilitate and naturalise a form of domination of large corporations over victims of (alleged) corporate wrongdoing.¹¹⁷ By means of the undivided loyalty of the amoral lawyer the corporate client will in this specific context in any case be likely to gain substantive control of the ability of victims of corporate wrongdoing to have their critical legal rights effectuated as well as of their opportunity to continue with their lives after the wrongdoing has occurred with dire deterrent effects for other victims.

For instance, the paradigm of amoral lawyering legitimises the practice of delay strategies that can be used due to the ‘temporal discretion’ that is allowed for by the law and that can be strategically used by amoral lawyers for the realisation of their clients’ extra-legal goals. However, these strategies of delay, against the background of the enormous disparity of social economic power between the litigating parties can in fact amount to a form of what can be dubbed ‘temporal governance’,¹¹⁸ the exertion of (corporate) power over the plaintiffs by means of temporal devices. Indeed, Pierre Bourdieu reminds us about the relation between power and delay strategies: ‘The all-powerful is he who does not wait but who makes others wait’.¹¹⁹

This perspective of the ideal of amoral lawyering as enabling corporate domination over victims of alleged corporate wrongdoing may also at least partly explain the way victims experience their attempts to obtain legal redress for corporate wrongdoing. These attempts are not seldom experienced as a reason for anger and resentment.¹²⁰ For instance, in the context of asbestos cases in the Netherlands an experience of double agony on the part of claimants is rather common. In addition to the suffering caused by the health effects of exposure to asbestos there is the other agony: ‘After and besides this suffering there is a second agony: the long, arduous and emotionally gripping legal road to a form of compensation, to obtain satisfaction for the inflicted damage and the suffering inflicted’.¹²¹

5. Is there an alternative?

We have argued that the ideal of amoral lawyering is at odds with the principle of CSR, that its main justifications fail in this context, and that, when put into practice, it enables corporations to dominate victims seeking legal redress for corporate wrongdoing.

The question of alternatives arises. One is to specify the implications for large-scale liability cases of varieties of what Simon described as ‘high commitment’ theories of legal ethics. Contrary to the ideal of amoral lawyering, these theories are all committed to the notion that ideals of legal ethics should ‘reflect […] a high level of commitment to third party and public interests’.¹²²

For example, Simon himself defended a high commitment theory: ‘Lawyers should take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice.’¹²³ His approach bears similarities to Louis Brandeis’s famous ideal of the ‘counsel for the situation’, who aims to resolve cases in a manner that takes into account the interests of all stakeholders who might be affected rather than exclusively focusing on the interests of their client.¹²⁴

Another high commitment theorist, David Luban, famously argued that lawyers should uphold norms of human dignity and ordinary morality in their working philosophy.¹²⁵ Similarly, Deborah Rhode argued that lawyers should ‘make decisions as advocates in the same way that morally reflective individuals make any ethical decision’.¹²⁶

To a certain degree – at least compared to the amoral lawyer – Wendel’s conception of the lawyer as interpreter is a high commitment theory. According to Wendel, lawyers should ‘interpret the law, assert positions, plan transactions, and advise clients on the basis of reasons internal to the law’.¹²⁷ Finally, Whelan introduced the concept of the ‘first-class lawyer’, who takes responsibility for protecting the law and the institutions of society, sees the different options they have in implementing the law and takes moral responsibility for the outcomes.¹²⁸

Of course, for all these high commitment theories to have any practical force, they must be reflected in the regulation of lawyers in a liberal legal order. To flesh out the potential implications of such theories for the regulation of lawyers in large-scale liability cases, one source of inspiration, at least regarding responsiveness to the vulnerable positions of (third) parties, might be the context-sensitive rules of professional conduct developed by domain-specific bar associations.¹²⁹

For instance, in the Netherlands, the Association of Family Lawyers and Divorce Mediators drafted a contextualised set of rules of professional conduct. These specific rules, which are an amendment to the general rules of professional conduct, prevent lawyers from causing further harm to children and to the public interest in potentially antagonistic divorce procedures. They state that family lawyers should take a constructive and solution-oriented approach to their cases and avoid escalation and lengthy legal battles.¹³⁰ Given the vulnerability of victims of corporate wrongdoing in large-scale liability cases, from the perspective of a high commitment theory, one could similarly argue for a specific set of additional rules for corporate defence lawyers. Such rules would oblige corporate defence lawyers to take a constructive approach to their cases and to limit the financial and emotional costs for victims of corporate wrongdoing holding corporations to account.¹³¹

Of course, from a regulative perspective, in which values such as coherence, foreseeability and consistency are key, it might be undesirable for each and every context of legal practice to have its own additional rules. Pepper suggested one possible solution:¹³² to include two categories of rules in the general rules of professional conduct – one addressing the moral risks to vulnerable clients dealing with powerful and knowledgeable professionals and another addressing the moral risks arising from ‘powerful clients making use of lawyer enabled access to the law to harm third parties’.¹³³ Both avenues might limit corporate lawyers’ ability to invoke rules clearly intended to protect vulnerable clients to justify choices made in contexts where the moral risks arise from the relation between the lawyer and the powerful client.¹³⁴

Another way to institutionalise a high commitment theory of legal ethics would be to supplement general codes of conduct with guidance for the most common dilemmas faced by lawyers in concrete contexts. This would allow lawyers more room for discretionary judgment.¹³⁵ The descriptions of certain dilemmas might, for instance, identify the kinds of contextual factors that lawyers should consider, such as the emotional and psychological interests, desires, needs and rights of those involved in and affected by their advice and representation; the moral costs likely to result from advice and representation; the balance of power between the lawyer and their (prospective) client, as well as between the client and any opponent and affected parties; and the extent to which actual checks and balances will be effective.

From this perspective, the ‘wise counselor’ might, for instance, emphasise to their clients the right of plaintiffs to an effective remedy for corporate wrongdoing and the need for corporate self-constraint regarding the exploitation of asymmetries between involved parties. It also implies that, in specific circumstances and based on an all-things-considered judgment, the lawyer can refuse to follow the wishes of their corporate client to avoid complicity in corporate wrongdoing.

A crucial question is the extent to which these high commitment theories are feasible in the corporate context as these theories largely rely on lawyers being ‘capable of independence from situational or institutional pressures’.¹³⁶ It is generally acknowledged that precisely this capacity of independence is jeopardised in the corporate context due to pressures internal and external to law firms. As has been widely observed, due to a complex combination of the asymmetrical power relation between corporate lawyers and their corporate clients, the intense career competition within law firms, the dominance of the ‘eat what you kill’ compensation systems, and the increasing competition in the legal service market, ‘client capture’¹³⁷ is likely to occur.¹³⁸ In this context lawyers are more likely to conform to the wishes of their clients and to render advice and represent them in ways that have less to do with their professional standards than with the commercial interests of both the client and the professional. As Parker and Rostain put it, ‘Single-minded commitment to furthering client interests fits well with the market and organisational conditions of corporate practice’.¹³⁹

Without adequately addressing these situational pressures, any attempt to institutionalise a high commitment theory – including the ideals of the CSR lawyer – will not amount to a feasible working philosophy in large-scale liability cases. This is a difficult problem that cannot be solved by lawyers alone.¹⁴⁰ Ideally, an important first step could be taken up by bar associations, who can open up debate, provide relatively free spaces for serious discussion and research, and raise consciousness among the bar via educational programmes.

6. Conclusion

Corporate lawyers advising or representing their corporate clients in corporate liability cases influence the extent to which the legal rights of victims of corporate wrongdoing are effectuated and the goals of tort law are realised. In this article we have discussed the merits of amoral lawyering as a working philosophy of corporate lawyering in the context of large-scale liability cases. We conclude that, in this specific context, the ideal of amoral lawyering should be rejected: it is in tension with the principle of corporate social responsibility, it lacks justificatory force, and it risks normalising and legitimising a practice of domination in which the economic interests of corporations come at the expense of the effectuation of the legal rights of victims of corporate wrongdoing.

In addition, we have discussed an alternative based in some version of a high commitment theory of legal ethics. However, to have practical force, any such version would need to seriously address the extent to which corporate lawyers will in reality be able live up to this ideal, given the economic dependence of individual lawyers on law firms and their corporate clients.

Given the combination of the socioeconomic asymmetries between the litigating parties, as well as between the corporate lawyer and their client, the critical rights at stake for victims of corporate wrongdoing, and the often limited judicial oversight, large-scale liability cases serve as a serious litmus test for legal ethics. If legal ethics does not take the specific context of large-scale liability cases (more) seriously, both on a theoretical and regulatory level, it runs the risk of becoming dangerously naive. Additionally, it becomes vulnerable to providing a justificatory discourse that legitimises lawyers' enabling role in the corporate domination of victims of corporate wrongdoing.

Acknowledgement

The authors are grateful for the valuable comments of two anonymous reviewers. An earlier version of this article was presented at a seminar organised by the Amsterdam Centre for Transformative Private Law and at an expert meeting on Legal Professionalism for Global Challenges organised by the Utrecht University Centre for Global Challenges. The authors are indebted to the participants of these events for their constructive comments. Thanks also goes to Prof. Cees van Dam for his valuable suggestions and comments on an earlier draft of this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Nikos Passas, ‘Lawful but Awful: Legal Corporate Crimes’ (2005) 34 The Journal of Socio-Economics 771, 771–86; Nikos Passas and Neva Goodwin (eds), It’s Legal but it Ain’t Right: Harmful Social Consequences of Legal Industries (University of Michigan Press 2004); Nicholas Freudenberg, Lethal but Legal: Corporations, Consumption, and Protecting Public Health (Oxford University Press 2014).

2 Lynn Mather, ‘Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation’ (1998) 23 Law & Social Inquiry 897; Camille Cameron, ‘Hired Guns and Smoking Guns: McCabe v British American Tobacco Australia Ltd’ (2002) 25 University of New South Wales Law Journal 768 (case note); Sharon Milberger, Ronald M Davis et al, ‘Tobacco Manufacturers’ Defence against Plaintiffs’ Claims of Cancer Causation: Throwing Mud at the Wall and Hoping Some of it Will Stick’ (2006) 15 Tobacco Control iv17; Nora Freeman Engstrom and Robert L Rabin, ‘Pursuing Public Health through Litigation: Lessons from Tobacco and Opioids’ (2021) 73 Stanford Law Review 285.

3 Jeanne Lenzer, ‘Secret Report Surfaces Showing that Pfizer Was at Fault in Nigerian Drug Tests’ (2006) 332 BMJ 1233; Alexander Dorozynski, ‘Two Victims of Diethylstilbestrol Win Lawsuit’ (2002) BMJ 324, 1354.

4 Robert Frank Ruers, Macht en Tegenmacht in de Nederlandse Asbestregulering (Boom Juridisch 2012); Andrea Boggio, Compensating Asbestos Victims: Law and the Dark Side of Industrialization (Routledge 2013); Lester Brickman, ‘Ethical Issues in Asbestos Litigation’ (2015) 33 Hofstra Law Review 834.

5 Amy Salyzyn and Penelope C Simons, ‘Professional Responsibility and the Defence of Extractive Corporations in Transnational Human Rights and Environmental Litigation in Canadian Courts’ (2021) 24(1) Legal Ethics 24.

6 For discussions of these barriers in the context of human rights violations by European companies, see Juan Jose Álvarez Rubio and Katerina Yiannibas, Human Rights in Business: Removal of Barriers to Access to Justice in the European Union (Routledge 2017); Jonas Grimheden, ‘Litigation in Response to Corporate Human Rights Abuses: The European Union and Its Member States’ (2018) 50 Case Western Reserve Journal of International Law 244; Axel Marx, Claire Bright et al, ‘Corporate Accountability Mechanisms in EU Member States for Human Rights Abuses in Third Countries’ (2019) European Yearbook of Human Rights.

7 For a general discussion of professionalism and the distinction between public and private professionals, see the contribution of Claassen (2023) elsewhere in this special issue.

8 Salyzyn and Simons (n 5) 35.

9 Lynn Mather and Leslie C Levin, ‘Why Context Matters’ in Lynn Mather and Leslie C Levin (eds), Lawyers in Practice: Ethical Decision Making in Context (Chicago University Press 2012).

10 The European Union Agency for Human Rights (2020, 29) identified three main categories of victims of human rights violations by corporations: consumers, the local population, and workers. See the European Union Agency for Fundamental Rights (2020), ‘Business and Human Rights: Access to Remedy’ <https://fra.europa.eu/en/publication/2020/business-human-rights-remedies> accessed 17 February 2023.

11 Passas and Goodwin (n 1) 4-7.

12 See the ‘legislative letter’ of the Dutch Authority Financial Markets (28 March 2022) 10–11 <https://www.eerstekamer.nl/nonav/overig/20220414/wetgevingsbrief_afm_2022/document> accessed 17 February 2023.

13 Marc Galanter, ‘Planet of the Apes: Reflections on the Scale of Law and its Users’ (2006) 53 Buffalow Law Review 1369.

14 For a general discussion of the representation of lawyers in popular culture, see Carrie Menkel-Meadow, ‘Can They Do That? Legal Ethics in Popular Culture: Of Character and Acts’ (2001) 48 University of California Law Review 1305.

15 Tyler W Hill, ‘Financing the Class: Strengthening the Class Action through Third-party Investment’ (2015) 125(2) Yale Law Journal 484.

16 ibid.

17 Robert H Klonoff, ‘The Decline of Class Actions’ (2013) 90 Washington University Law Review 972; Robert H Klonoff, ‘Class Actions Part II: A Respite from the Decline’ (2017) 92 New York University Law Review 971.

18 AT&T Mobility LLC v Concepcion [2011] 31 S. Ct. 1740; Brian T Fitzpatrick, ‘The End of Class Actions?’ (2015) 57 Arizona Law Review 161; Klonoff 2013; 2017 (n 17).

19 BEUC, Proposal for a Directive on Representative Actions (BEUC Position Paper BEUC-X-2018-094, 2018).

20 Ianika Tzankova, ‘Wetsvoorstel Collectieve Schadevergoedingsactie: Een Oplossing Voor Welk Probleem Ook Alweer?’ (2017) 4 Tijdschrift voor Vergoeding Personenschade 107; Branda M Katan, ‘Toetsing van Commerciële Procesfinanciering: Naar een Evenwichtig Stelsel’ (2021) 33 Nederlands Tijdschrift voor Burgerlijk Recht 269; Willem H van Boom and Jan L Luiten, ‘Procesfinanciering door Derden’ (2015) 5 Rechtsgeleerd Magazijn Themis 188; The Dutch Act on the Settlement of Mass Claims in Collective Action (WAMCA), introduced in 2020, does seem to offer opportunities for the wider use of third-party funding; see CE Santman and RJ Philips, ‘De Financiering van Collectieve Schadevergoedingsacties onder de WAMCA: Een Inventarisatie van Onzekerheden en Mogelijkheden vanuit het Perspectief van een Procesfinancier’ (2021) 7/8 Maandblad voor Vermogensrecht 275.

21 Brickman (n 4) 835.

22 Robert W Gordon, ‘Introduction to Symposium on the Corporate Law Firm’ (1985) 37 Stanford Law Review 271, 271.

23 César S Arjona, ‘Amorality Explained: Analysing the Reasons that Explain the Standard Conception of Legal Ethics’ (2013) 4 Ramon Llull Journal of Applied Ethics 51, 53; W Bradley Wendel, Lawyers and Fidelity to Law (Princeton University Press 2010) 30; William H Simon, The Practice of Justice: A Theory of Lawyer’s Ethics (Harvard University Press 1998) 100.

24 Richard Moorhead and Victoria Hinchley, ‘Professional Minimalism? The Ethical Consciousness of Commercial Lawyers’ (2015) 42(3) Journal of Law and Society 387.

25 ibid 409; see also Steven Vaughan and Emma Oakley, ‘‘Gorilla Exceptions’ and the Ethically Apathetic Corporate Lawyer’ (2016) 19(1) Legal Ethics 50, 73.

26 Christine Parker, ‘A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’ (2004) 30 Monash University Law Review 49, 57–60.

27 Stephen L Pepper, ‘The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and Some Possibilities’ (1986) 11 American Bar Foundation Research Journal 613, 626.

28 For instance, rule 2.2. of the Code of Conduct 2018 of the Netherlands Bar reads as follows: ‘The interest of the client, and no other interest, will determine the way in which the advocate handles his cases.’

29 Wendel 44 (n 23).

30 Pepper (n 27) 630–32; see also Melissa Mortazavi, ‘The Cost of Avoidance: Pluralism, Neutrality, and the Foundation of Modern Legal Ethics’ (2017) 42 Florida State University Law Review 151.

31 Stephen L Pepper, ‘Integrating Morality and Law in Legal Practice: A Reply to Professor Simon’ (2010) 23 Georgetown Journal of Legal Ethics 1011, 1019.

32 Donald Nicolson and Julian Webb, Professional Legal Ethics: Critical Interrogations (Oxford University Press 1999).

33 Richard Wasserstrom, ‘Lawyers as Professionals: Some Moral Issues’ (1975) 5 Human Rights 1, 6.

34 Pepper (n 27) 615–19.

35 The term ‘ethical division of labour’ was coined by Thomas Nagel, see Thomas Nagel, ‘Ruthlessness in Public Life’ in S Hampshire (ed), Public and Private Morality (Cambridge University Press 1978) 85.

36 Frans Jacobs, ‘Reasonable Partiality in Professional Ethics: The Moral Division of Labour’ (2005) 8 Ethical Theory and Moral Practice 141.

37 Lon L Fuller, ‘The Principles of Social Order’ in Kenneth L. Winston (ed), Selected Essays of Lon L Fuller (Duke University Press 1981); Lon L Fuller, The Adversary System: Talks on American Law (Vintage Books 1961).

38 Preamble of the Dutch Code of Conduct for Lawyers (2018).

39 Linn M LoPucki and Walter O Weyrauch, ‘A Theory of Legal Strategy’ (2009) 49 Duke Law Journal 1405, 1410; See for some exceptions e.g.: Richard Lewis, ‘Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies’ (2017) 37 Legal Studies 162; Ramses Delafontaine, Historians as Expert Judicial Witnesses in Tabacco Litigation: A Controversial Legal Practice (Springer 2015) 173–210; Christopher Whelan, The Bodyguards of Lies: Lawyers’ Power and Professional Responsibility (Bloomsbury 2022), part II (‘Strategies to Protect the Truth’).

40 Oliver Wendell Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 459.

41 Daniel T Ostas, ‘Legal Loopholes and Underenforced Laws: Examining the Ethical Dimensions of Corporate Legal Strategy’ (2009) 46 The American Business Law Journal 487, 504; Galanter (n 13).

42 Alejandro Esteban and Christopher Patz, ‘Suing Goliath. An Analysis of Civil Proceedings Brought Against EU Companies for Human Rights Abuses and Environmental Harm in their Global Operations and Value Chains, and Key Recommendations to Improve Access to Judicial Remedy’, European Coalition for Corporate Justice, 2022, 79. See: <https://corporatejustice.org/publications/suing-goliath/> accessed February 17 2023.

43 In the 1990s, the tobacco industry was estimated to be spending about $600 million per year on defence lawyers. See: House of Representatives (Subcommittee on Courts and Intellectual Property, Committee on the Judiciary), Attorney's Fees and The Tobacco Settlement, 1997, <http://commdocs.house.gov/committees/judiciary/hju53772.000/hju53772_0f.htm> accessed 17 February 2023.

44 See Jan Salden, ‘Nog Nooit Gaf Het Rijk Zoveel Uit aan Juridisch Advies: Staat Zorgt Goed voor Eigen Belangen’, (Een Vandaag, 11 April 2021) <https://eenvandaag.avrotros.nl/item/nog-nooit-gaf-het-rijk-zo-veel-miljoenen-uit-aan-juridisch-advies-staat-zorgt-goed-voor-eigen-belangen/> accessed 17 February 2023; Aanhangsel Handelingen/2021-2022, nr. 1061, <https://zoek.officielebekendmakingen.nl/ah-tk-20212022-1061.pdf> accessed 17 February 2023.

45 Sara D Guardino and Richard A. Daynard, ‘Tobacco Industry Lawyers as “Disease Vectors”’, (2007) 16(4) Tobacco Control 224, 227.

46 Ruers (n 4); Tom Kreling and John Schoorl, ‘Asbestleed: Procederen tot de Dood erop Volgt’ Volkskrant (Amsterdam, 11 May 2019).

47 Tweede Kamer der Staten-Generaal, Groningers Boven Gas: Rapport Parlementaire Enquête Commissie Aardgaswinning Groningen (2023), 1536.

48 Ostas (n 41) 505.

49 Dutch Code of Conduct for Lawyers (2018), rule 6.

50 Defined by Martijn Stronks (2022, 5) as ‘the temporal experience of the passage of time in human affairs’, which is to be contrasted with ‘clock-time’. See: Martijn Stronks, Grasping Legal Time, Temporality and European Migration Law (Cambridge University Press 2022).

51 ibid 96.

52 Sharon Milberger and Ronald M Davis et al, ‘Tobacco Manufacturers’ Defence Against Plaintiffs’ Claims of Cancer Causation: Throwing Mud at the Wall and Hoping Some of it Will Stick’ (2006) 15(4) Tobacco Control 17.

53 Cees van Dam, Aansprakelijkheidsrecht (Boom Juridisch 2020) 607.

54 Onderzoeksraad voor Veiligheid, Rapport Aardbevingsrisico’s in Groningen, Onderzoek naar de Rol van Veiligheid van Burgers in de Besluitvorming over de Gaswinning (1959–2014) (Den Haag 2015) 7–8; 60; 88–89; Wim Derksen and Mariëlle Gebben et al, Groningen en de Bevingen: Hoe Kennis Beleid Nauwelijks Beter Maakt (Boom Bestuurskunde 2022).

55 For a short history, see Jan M van Dunné, Schadevergoeding door Mijnbouwschade en Bodemdaling: Het Dossier Groningen. Publicaties 2002–2020 (Uitgeverij Paris 2020); GM Kuipers, Beschadigd Vertrouwen: Vertrouwenwekkend Schadebeleid na door de Overheid Gefaciliteerde Schade (Wolters Kluwer 2021) 267–432.

56 Tweede Kamer der Staten-Generaal (n 47) 1537.

57 Algemene Rekenkamer, Ministerie van Economische zaken en Klimaat: Rapport bij het Jaarverslag 2021 (Den Haag 2021) 3, 52–54.

58 ‘Vrouw Asbestslachtoffer DSM: Ze Moesten Toch Een Keer Toegeven’ (Trouw, 10 March 2004) <https://www.trouw.nl/nieuws/vrouw-asbestslachtoffer-dsm-ze-moesten-toch-een-keer-toegeven~b9260cab/> accessed 17 February 2023.

59 See ‘Tata Steel traag met Afhandeling Asbestclaims’ (NOS, 11 May 2019) <https://nos.nl/artikel/2284061-tata-steel-traag-met-afhandeling-asbestclaims> accessed 17 February 2023.

60 Galanter (n 13).

61 David Luban, ‘Lawyers as Upholders of Human Dignity (When They Aren’t Busy Assaulting It)’ (2005) University of Illinois Law Review 815, 836; Maura I Strassberg, ‘Privilege Can Be Abused: Exploring the Ethical Obligation to Avoid Frivolous Claims of Attorney-Client Privilege’ (2007) 37(2) Seton Hall Law Review 413.

62 See also Gerard IJM Zwetsloot and Theo de Bruin, ‘Surviving Relatives as Stakeholders for Corporate Social Responsibility and as Leaders for Meaningful Safety Improvement: A Case Study from the Netherlands’ (2023) 157 Safety Science § 3.2.2.

63 See the legislative letter of the Dutch Authority Financial Markets (n 12) 10–11.

64 Madeleine Cuff, ‘Exxon Predicted Climate Change’ (2023) 257(3422) New Scientist 14; Emily L Williams, Sydney A Bartone, Emma K Swanson and Leah C Stokes, ‘The American Electric Utility Industry’s Role in Promoting Climate Denial, Doubt, and Delay’ (2022) 17 Environmental Research Letters 9; Geoffrey Supran and Naomi Oreskes, ‘Rhetoric and Frame Analysis of ExxonMobil’s Climate Change Communications’ (2021) 4 One Earth 696–719.

65 A Galič, ‘Disclosure of Documents in Civil Procedure: The Privilege against Self-Incrimination or a Quest for Procedural Fairness and Substantive Justice’ in JH van Ree and Alan Uzelac (eds), Evidence in Contemporary Civil Procedure. Fundamental Issues in a Comparative Perspective (Interstentia 2015) 43–46; Jonatan Baier, Bernhard Meyer, Dominik Vock and Emina Husic, ‘Perspectives on Document Disclosure’ (2021) Global Arbitration Review, < https://globalarbitrationreview.com/guide/the-guide-evidence-in-international-arbitration/1st-edition/article/perspectives-document-disclosure> accessed 17 February 2023.

66 A clear breach of the rules of professional conduct was identified in the case of McCabe v British American Tobacco Australia Ltd, in which ‘the judge found that, notwithstanding the policy’s title, its purpose was destruction, not retention’. See Cameron (n 2) 771.

67 Ostas (n 41) 502.

68 Galanter (n 13).

69 Sally Gunz and Sandra van der Laan, ‘Actuaries, Conflicts of Interest and Professional Independence: The Case of James Hardie Industries Limited’ (2011) 98(4) Journal of Business Ethics 583; Christine Parker and Tanina Rostain, ‘Law Firms, Global Capital, and the Sociological Imagination’ (2012) 80 Fordham Law Review 2347.

70 ibid 2349.

71 Edward J Janger, ‘Aggregation and Abuse: Mass Torts in Bankruptcy’ (2022) 91 Fordham Law Review 361.

72 Greg Gordon, a law partner at Jones Day who introduced the ‘Texas-two step’, has implemented this legal maneuver for several companies, including Johnson & Johnson. He described it as ‘the greatest innovation in the history of bankruptcy.’ See: Kathryn Rubino, ‘Jones Day Took Home Over $100 Million Thanks To A Controversial Bankruptcy Tactic’ (Above The Law, 14 February 2023) <https://abovethelaw.com/2023/02/jones-day-100-million-controversial-bankruptcy-texas-two-step/> accessed 17 February 2023.

73 Michael A Francus, ‘Texas Two-Stepping Out of Bankruptcy’ (2022) Michigan Law Review Online <https://michiganlawreview.org/wpcontent/uploads/sites/3/2022/08/120MichLRevOnline38_Francus.pdf> accessed 17 February 2023. Francus summarises the two steps of this strategy as follows: ‘For a Texas Two-Step’s first step, the legacy business divides itself into a new business with assets (AssetCo) and a new business with liabilities (LiabilityCo). The second step is to place LiabilityCo into bankruptcy and have the bankruptcy court discharge the liabilities while AssetCo goes on its merry way.’

74 Richard Moorhead and Rachel Cahill-O’Callaghan, ‘False friends? Testing Commercial Lawyers on the Claim that Zealous Advocacy is Founded in Benevolence towards Clients Rather than Lawyers’ Personal Interest’ (2016) 19(1) Legal Ethics 50.

75 Mauricio A Latapí Agudelo, Lara Johannsdottir and Brynhildur Davidsdottir, ‘A Literature Review of the History and Evolution of Corporate Social Responsibility’ (2019) 4 International Journal of Corporate Social Responsibility 1.

76 Para 13 of the UNGP reads as follows: ‘The responsibility to respect human rights requires that business enterprises: (a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.’

77 OECD, OECD Guidelines for Multinational Enterprises (OECD Publishing 2011).

78 ibid para 1.IV.

79 European Commission, A Renewed EU Strategy 2011–14 for Corporate Social Responsibility (European Commission 2011) para 4.8.2.

80 European Parliament Resolution of 10 March 2021 with Recommendations to the Commission on Corporate Due Diligence and Corporate Accountability (2020/2129 [INL]).

81 Jaap Winter et al, ‘Naar een Zorgplicht voor Bestuurders en Commissarissen ter Verantwoordelijke Deelname aan het Maatschappelijke Verkeer’ (2020) Ondernemingsrecht 86. The call from the law professors also included the proposal to oblige companies to formulate a statutory purpose or raison d’être. This call is in line with a broad purpose movement that has been developing in recent years. A purpose statement includes ‘why an enterprise exists, who it wants to serve, its reason for being and the role it plays in the world’: see Alex Edmans, Grow the Pie: How Great Companies Deliver Both Purpose and Profit (Cambridge University Press 2020) 192.

82 Wetsvoorstel houdende regels voor gepaste zorgvuldigheid in productieketens om schending van mensenrechten, arbeidsrechten en het milieu tegen te gaan bij het bedrijven van buitenlandse handel (Wet verantwoord en duurzaam internationaal ondernemen) (2020–21) 35(2) Kamerstukken 761. See also Liesbeth FH Enneking, ‘Van Beleid Naar Gepaste Zorgvuldigheid in Mondiale Waardeketens’ (2022) 43 Nederlands Tijdschrift voor Burgerlijk Recht 357.

83 Rechtbank Den Haag (District Court of The Hague) 26 mei 2021, ECLI:NL:RBDHA:2021:5337 (Milieudefensie e.a.vRoyal Dutch Shell).

84 Alex Geert Castermans and Caspar Philip Leonard van Woensel, CSR for Young Business Lawyers (Eleven International Publishing 2017).

85 Stéphane Brabant and Elsa Savourey, ‘From Global Toolbox to Local Implementation: The IBA Practical Guide on Business and Human Rights for Business Lawyers’ (2017) 2(2) Business and Human Rights Journal 343; Anita Ramasastry, ‘Advisors or Enablers? Bringing Professional Service Providers into the Guiding Principles Fold’ (2021) 6 Business and Human Rights Journal 291; John F Sherman III (2021) ‘The Corporate General Counsel Who Respects Human Rights’ (2021) 24(1) Legal Ethics 490.

86 Ramasastry (n 85) 3.

87 The same goes for the guide (2013) drafted by Advocates for International Development and the guides provided by the CCBE (2013, 2014, 2017), which primarily focus on the implications of CSR in their advisory role with regard to their clients’ ongoing business. This lack of attention to the implications of CSR for lawyers in their representative role in civil litigation is also reflected in the limited scholarly literature on this matter.

88 IBA Practical Guide on Business and Human Rights for Business Lawyers, 2016, 14.

89 ibid 25.

90 ibid 28.

91 Salyzyn and Simons (n 5) 42.

92 UNGP 13(b).

93 Salyzyn and Simons (n 5) 45. A more critical view comes from Spiesshofer: she argues that the application of CSR to corporate lawyers “risks undermining the independence of the attorneys and their role in the administration of justice as the examples from the Nazi regime and McCarthy era show.” See: Birgit Spiesshofer, ‘Be Careful What You Wish For: a European Perspective on the Limits of CSR in the Legal Profession’ (2021) 24(1) Legal Ethics 73. A full and balanced response to the concerns expressed by Spiesshofer cannot be provided here. We will only state that Spiesshofer’s argument appears to rest on a category error: by placing large multinational corporations on a par with vulnerable natural persons, her argument disregards the many ways in which corporate power, facilitated and strengthened by corporate lawyers, poses a serious threat to the administration of justice and to democracy.

94 It is for this reason that the Council of Bars and Law Societies of Europe called for bar organisations to assist their members by providing guidance on CSR matters regarding critical questions and dilemmas in concrete cases (CCBE, 2014).

95 Robert W Gordon, ‘A New Role for Lawyers? The Corporate Counselor after Enron’ (2003) 35 Connecticut Law Review 1185, 1199.

96 Judith A McMorrow and Luke M Scheuer, ‘The Moral Responsibility of the Corporate Lawyer’ (2010) 60 Catholic University Law Review 275, 278; Deborah L Rhode, ‘Ethical Perspectives on Legal Practice’ (1985) 37 Stanford Law Review 589, 589.

97 David Luban, ‘The Lysistratian Prerogative: A Response to Stephen Pepper’ (1986) 11(4) American Bar Foundation Research Journal 637, 639. See for this point also: Whelan (n 39), 28–29. Whelan argues that the exercise of autonomy by one individual is not valuable if it violates the autonomy of its victim.

98 Esther van der Meer (ed.), Ik wacht: 101 Verhalen uit het Aardbevingsgebied (Balans 2019).

99 David Luban, ‘Misplaced Fidelity’ (2012) 90 Texas Law Review 673, 679.

100 Sung Hui Kim, ‘Economic Inequality, Access to Law, and Mandatory Arbitration Agreements: A Comment on the Standard Conception of the Lawyer’s Role’ (2020) 88 Fordham Law Review 1665, 1671.

101 Van Dam (n 53) 600.

102 Gordon (n 95) 203.

103 Salazyn and Simons (n 5) 23.

104 Tim Dare, ‘Mere-Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ (2004) 7(1) Legal Ethics 24, 30.

105 ibid 30.

106 ibid.

107 Dare himself acknowledges that this understanding is a revision of the dominant understanding of amoral lawyering. Dare (n 104) 35. It departs, for instance, from an interpretation that Markovits gives to this ideal when suggesting that lawyers ‘should try aggressively to manipulate both the facts and the law to suit their clients’ purposes’. See: Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (Princeton University Press 2009) 3.

108 Dare (n 104) 35.

109 HR (Supreme Court) 13 februari 2015, ECLI:N:HR:2015:304. See also: Maartje Verheiden and Veneta Oskam, ‘Proceskostenveroordeling, Onrechtmatig Procederen, Misbruik van procesrecht’ (2018) 79(5) Jurisprudentie Aansprakelijkheidsrecht (case note).

110 Charles Mill, ‘ “Ideal Theory” as Ideology’ (2005) 20(3) Hypatia 165.

111 Laura Valentini, ‘On the Apparent Paradox of Ideal Theory’ (2009) 17(3) The Journal of Political Philosophy 332, 332.

112 Colin Farrelly, ‘Justice in Ideal Theory: A Refutation’ (2007) 55 Political Studies 844, 845.

113 It would be worthwhile to further explore and discuss the rising in-context approach to legal ethics through the lens of the ideal–non-ideal debate within political philosophy.

114 Mill (n 110).

115 Of course, (legal) sociologists have already pointed out the ideological dimension of professionalism. See e.g.: Magali Sarfatti Larson, The Rise of Professionalism. Monopolies of Competence and Sheltered Markets (University of California Press 2012) 6; Richard Abel and Philip SC Lewis, Lawyers in Society. An Overview (University of California Press 1996).

116 Kim (n 100) 1682.

117 By ‘domination’ we mean the basic idea of an “unjust imbalance of power that enables agents or systems to control other agents or the conditions of their actions”, see Christopher McCammon, ‘Domination’ (The Stanford Encyclopedia of Philosophy, 8 November 2018) <https://plato.stanford.edu/entries/domination/> accessed February 17 2023.

118 M Griffiths, ‘The Changing Politics of Time in the UK’s Immigration System’ in E. Mavroudi, A. Christou, and B. Page (eds), Timespace and International Migration (Edward Elgar Publishing 2017); see also Marcelle Reneman and Martijn Stronks, ‘What Are They Waiting For? The Use of Acceleration and Deceleration in Asylum Procedures by the Dutch Government’ (2021) Time & Society 6.

119 As cited in: ibid 6.

120 See for a discussion of how to evaluate these ‘reactive attitudes’ also: W. Bradley Wendel, ‘Lawyer Shaming’ (2022)1 University of Illinois Law Review 175.

121 Ruers (n 4).

122 William H Simon, ‘Who Needs the Bar? Professionalism Without Monopoly’ (2003) 30 Florida State University Law Review 654, 654–6.

123 Simon (n 23) 9.

124 RF Cochran Jr, ‘Louis D Brandeis and the Lawyer Advocacy System’ (2013) 40 Pepperdine Law Review 351.

125 David Luban, Legal Ethics and Human Dignity (Cambridge University Press 2007).

126 Deborah L Rhode, In the Interests of Justice: Reforming the Legal Professions (Oxford University Press 2000) 67. For a similar position, see Barbara Mescher, Legal Ethics for Lawyers: A New Model (Routledge 2023) 96–116.

127 Wendel (n 23) 71.

128 Whelan (n 39) 286–88.

129 Also suggested by Salyzyn and Simons (n 5).

130 See rule 3 of the code of conduct (2017) of the Association of Family Lawyers and Divorce Mediators (vFAS), which must be seen as an amendment to the general Dutch Code of Conduct for Lawyers (2018).

131 For the difficulty of identifying those affected by decisions made by legal professionals in a global, transnational context, see Davies and Henderson (2023) elsewhere in this special issue.

132 Stephen L Pepper, ‘Three Dichotomies in Lawyers’ Ethics (with Particular Attention to the Corporation as Client)’ (2015) 28 Georgetown Journal of Legal Ethics 1069, 1079. In this article, Pepper argues that, in the corporate context, the ‘standard conception’ of lawyering is problematic.

133 ibid 1083.

134 ibid Pepper (n 132, 1110) also suggested that it is perhaps not coincidental that current rules of professional conduct predominantly focus on vulnerable clients: ‘[E]lite lawyers, who have tended to dominate in the drafting of the rules, perceive the risks of the other hemisphere of the profession more clearly than they see the risks in their own.’

135 For a discussion of the merits of a virtue-ethical approach to lawyering, with room for lawyerly discretion, see Iris van Domselaar, ‘The Fragility of Legal Ethics: On the Role of Theory, Lawyerly Virtues, and Moral Remainders in the Life of a Good Lawyer’ in Julian Webb (ed), Leading Works in Legal Ethics (Routledge 2023).

136 Alice Woolley and W Bradley Wendel, ‘Legal Ethics and Moral Character’ (2010) 23 Georgetown Journal of Legal Ethics 1066.

137 Kevin Leicht and Mary L. Fennel, Professional Work: A Sociological Approach (Blackwell 2001) 105; Dinovitzer, Gunz and Gunz have argued on the basis of their qualitative empirical research that the phenomenon of client-capture in corporate practice – which is often understood as the ability of the client to control the activities, time and costs of the professional work- may be more complex than originally thought and in any case encompasses more than merely a straightforward one to one relation between the client and the lawyer. More specifically, they argue that ‘[client capture] may be less of a matter of a professional being captured by their client, but rather that professionals are influenced by a great many factors within the client firm and their own firm.’ See Ronit Dinovitzer, Hugh Gunz and Sally Gunz, ‘Unpacking Client Capture: Evidence from Corporate Law Firms’ (2014) 2(1) Journal of Professions and Organisation 99, 115.

138 See e.g.: Christine Parker and Tanina Rostain, ‘Law Firms, Global Capital, and the Sociological Imagination’ (2012) 80 Fordham Law Review 2347; Marc S Galanter and William D Henderson, ‘The Elastic Tournament: A Second Transformation of the Big Law Firm' (2008) 60 Stanford Law Review 1867, 1872; Deborah L Rhode, ‘Moral Counseling’ (2006) Fordham Law Review 1317, 1332; Pepper (n 132) 1079-1081.

139 Christine Parker and Tanina Rostain (n 138) 2360.

140 David Luban, ‘How Must a Lawyer Be? A Response to Woolley and Wendel’ (2010) 23 Georgetown Journal of Legal Ethics 10-11.