In the blue corner, we have the Democratic congressman from Tennessee pushing for a travel ban on lawyers who allegedly advised Russian oligarchs.
In the red corner we have a British lawyer who pushes back against criticism from lawyers who have advised Russian clients, and indeed from anyone sanctioned.
Steve Cohen wrote an open letter to US Secretary of State Antony Blinken last week urging him to deny US visas to a number of UK lawyers, including Nigel Tait of Carter-Ruck, Tomlinson QC, Geraldine Proudler of CMS and Keith Schilling of Schillings. He then listed some of their activities which he said “enabled the malicious activities of the Russian oligarchs”.
As you would expect from law firms specializing in defamation law, each responded strongly to the allegations. You can read the story here.
Then UK lawyer Jonathan Fisher QC of Bright Line Law and Red Lion Chambers felt compelled to speak on behalf of the industry. Writing for Law.com International, he said: “It is trivial to make this point, but in light of some recent public comments it needs to be made. All persons, natural and legal persons, have the right to be advised and represented in circumstances privileged by law.
He continued, “It doesn’t matter if a sanctioned person is suspected of being involved in criminal activity.” And: “It is important to remember that even Nazi war criminals were entitled to legal advice and representation at the Nuremberg trials.”
On a purely intellectual level, Fisher is clearly right. To criticize lawyers who provide advice is to misunderstand how society works when it is governed by the rule of law.
And yet, the “even outcasts have rights” argument assumes that the lawyers themselves will follow the rules. As long as they obey the law, they should not be interrogated.
But do they always obey the rules?
Last week, 11 trainees were found to have cheated on their online bar exam in Singapore. This comes less than a week after the start of formal investigations into possible cheaters on the other side of the world during the Canadian bar exams.
In the Singapore case, the judge commented on what he feared was a growing culture of cheating. “When so many candidates have cheated on a professional qualification exam in so many articles, including one for ‘Ethics and Professional Responsibility,’ then something is wrong somewhere,” he wrote.
“Dishonesty and lack of probity are not the only flaws at issue in this case. When a person resorts to cheating during an exam, it also reveals a lack of diligence and a propensity to take shortcuts, which is also not good professional qualities,” he added. .
And if you think such dishonesty only exists at the junior level among people who haven’t even become proper lawyers yet, some people involved in an investigation in Papua New Guinea (PNG) might not be Okay.
Norton Rose Fulbright Australia and Swiss bank UBS are accused of failing to cooperate in an investigation into a controversial UBS loan. According to the country’s royal commission lawyer, Norton Rose deliberately “threw about 3,000 documents, many of them voluminous, right at the bottom of the chase”. He added that the company also failed to present a human witness and refused to participate in the commission and recommended that Norton Rose be banned for five years from acting on the PNG deals.
It’s the kind of stuff that infuriates politicians and adds weight to their arguments, regardless of the logic.
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Hong Kong: the final straw
There has been much speculation in recent years about Hong Kong’s future as Asia’s financial hub. Providing clear answers on such things is not easy. But given that legal advice is so intrinsic to all aspects of business life, perhaps the lawyers’ movement offers one of the best indications yet of where things stand.
The national security law imposed on the territory by China in 2020 has certainly had an effect. Of course, law firms won’t talk about it. The judges, however, feel more empowered to speak their minds, so when two of them abruptly resigned from Hong Kong’s top court last month, they were candid in their assessment.
But it was the city’s draconian rules surrounding its zero COVID strategy that proved the last straw for partners working at large law firms. Parents fear they could potentially be separated from their children if a family member tests positive.
In an excellent study, Hong Kong correspondent Jessica Seah found that at least 23 senior partners have left the city since the start of the pandemic, with most having left in the past 12 months.
These include partners, including five in senior management positions, from all walks of Big Law: Allen & Overy, Baker McKenzie, Clifford Chance, DLA Piper, Herbert Smith Freehills, Kirkland & Ellis, Latham & Watkins, Norton Rose Fulbright, Simpson Thacher & Bartlett and many more.
Nine of those 23 have moved to the UK, six to Singapore and the rest elsewhere. You can see the whole list here.
Such decisions were not taken lightly. Not only do these partners feel like they are abandoning what they have worked so hard to build, but they also have to worry about the political consequences of their actions. “There is a fear that leaving Hong Kong will be seen as turning away from China,” said a partner who left earlier this year after being based in the city for more than six years. “The reality is that if you want to continue doing business in mainland China, you cannot be considered leaving China. It’s not just a personal opinion. That’s certainly how the company feels.
The exodus has led to a shortage of lawyers in Hong Kong – last week Shearman & Sterling lost its last litigation partner there. Conversely, demand for lawyers is stronger in other Asian financial centers – last week McDermott, Will & Emery hired a team of lawyers from Sidley Austin in Singapore and Mayer Brown transferred his partner from Londoner Myles Mantle projects in his Tokyo office.
And more departures from Hong Kong partners are expected. A quick look at some recent partner promotions suggests that they are not superseded.
Ashurst and Addleshaw Goddard both announced record partner promotions last week and Clyde & Co’s promotions hit a three-year high. How many of these 68 promotions came to their Hong Kong offices? Just one. Less than in Edinburgh.
Looking more broadly at the 141 promotions announced by Skadden, Arps, Slate, Meagher & Flom, Freshfields Bruckhaus Deringer, Linklaters, Eversheds Sutherland and Pinsent Masons in recent weeks, only six (or 4%) were based on what was once the first minister. financial center of the largest market in the world in terms of land mass and people.
Hong Kong is not only old-fashioned, it is positively avoided.