24 Britain The Economist May 7th 2022
secrecy (and whose premier was recently
arrested in an American drug sting, further
sullying the territory’s notsogood name).
Another attraction for the scrutinyshy
is Britain’s libel law. Britain remains popu
lar with “libel tourists”, foreigners with
tenuous links to the country who bring
cases there because they believe they have
a better chance of winning. The Defama
tion Act of 2013 was intended to resolve this
imbalance, but clever lawyers have “chis
elled away” at what Parliament intended
the law to do, says Caroline Kean of Wig
gin, a law firm. For instance, the act aimed
to codify a publicinterest defence that had
evolved through case law, by increasing
protection for writers who “reasonably be
lieved” that what they published was true.
Lawyers for oligarchs have had a field day
with those two words. “When motive is in
play, clever solicitors can tie opponents in
knots,” says Ms Kean.
The tactics used by such lawyers have
become wellhoned. They centre on firing
off intimidatingly long letters to journal
ists or ngos who are investigating their cli
ents, with the aim of bullying them into
backing down, typically not by force of le
gal argument (which is often flimsy) but by
the prospect of ruinous costs as litigation,
or just the threat of it, stretches on.
The government has proposed reforms
to curb “lawfare”. These include strength
ening the publicinterest defence, capping
costs claimants can recover and giving
judges the right to throw spurious cases
out earlier. Anticorruption campaigners
and an American congressman have called
for visa bans and other sanctions against
lawyers who work for dodgy plutocrats.
Some of the firms accused of such conduct,
including CarterRuck and Harbottle &
Lewis, have issued statements denying
that they have acted inappropriately.
The lawyers have another weapon,
however. Employing innovative legal argu
ments, they have increasingly been using
Britain’s privacy and dataprotection laws
to bring defamationlike cases. These ar
gue that alleged privacy breaches damage
their client’s public image. A legal claim by
two oligarchs against HarperCollins over
“Putin’s People”, a book by Catherine Bel
ton, was based on arguments about data
protection. Some defence lawyers say that
privacy is becoming the new libel.
If the law is one area of concern, what
lawyers are willing to do for clients is a sec
ond. “There is a more general problem of
erosion of ethical standards” among Brit
ish lawyers, says Robert Barrington of the
Centre for the Study of Corruption at the
University of Sussex. “The legal system has
always been tilted in favour of those with
more resources. But it has been pushed
further out of kilter through the allure of
cash from oligarchs and kleptocrats who
should fail any reasonable duediligencetest.” Some of the richest Russian clients
will pay more than double the £500per
hour going rate for top solicitors. “This has
played havoc with the moral compasses of
many law firms,” adds Mr Barrington.
These navigational problems have been
exacerbated by a broader trend. Under the
old partnership model, the client may have
come first but lawyers also took seriously
their role as “officers of the court”, dedicat
ed to serving the wider justice system. Over
the past quartercentury the legal industry
focused more on shortterm financial per
formance. The big firms grew more “cor
porate”, less stable (as poaching increased)
and less culturally cohesive. “This has dri
ven a shift further towards the primacy of
the client over duties to the court,” says
Richard Moorhead of Exeter University. Conduct unbecoming
Some lawyers justify working for oligarchs
with reference to the right to representa
tion enshrined in the un’s “basic princi
ples on the role of lawyers”. In reality, dif
ferent rights compete. Article 14 of the ba
sic principles says that lawyers “shall seek
to uphold human rights” and “at all times
act freely and diligently in accordance with
the law and recognised standards and eth
ics of the legal profession”. Lawyers have a
choice about whom they serve, unlike doc
tors, who are expected to treat even the
most heinous criminal if he requires med
ical attention.
Lawyers’ views of how they should act
particularly matter in Britain, argues Mr
Barrington, because its legal system rests
on the selfpolicing of behaviour. “One of
the good things about our system is that it
has been longestablished with behaviour
al checks and balances. It was upheld and
carried by the lawyers themselves. Now we
are seeing what happens when those stan
dards are upended.” He sees a parallel withpolitics, where concerns have grown that
the system has been weakened by Boris
Johnson’s breaking of uncodified norms.
But anyone expecting the legal regula
tor to tackle ethical slippage may be disap
pointed. Faced with growing complaints
about lawyers taking Russian money, the
Solicitors Regulation Authority (sra) has
promised more “spot checks” on the in
dustry. But the sra’s hybrid status—it is a
legally independent arm of the Law Soci
ety, an industry association—does not in
spire confidence. Though it can impose
fines of up to £250m, its largest announced
to date, against Mishcon de Reya for mon
eylaundering failures, is £232,500.
The third problematic part of Britain’s
legal system is its courts. British judges
have a strong global reputation, but they
can fall short in cases involving wealth ac
cumulated in foreign jurisdictions with
less respect for the rule of law. In particu
lar, they sometimes give undue weight to
questionable evidence submitted by the
authorities of other countries. “Judges
show too much credulity,” says a British
lawyer. “They often take at face value wit
ness statements, financial documents and
other evidence provided by dodgy govern
ments, because they are ‘official’. This is
hugely consequential because many oli
garchs are linked to people still in power in
those countries who can control, or doctor,
information flowing to the courts here.”
In April 2020 two relatives of former
Kazakhstani president Nursultan Nazar
bayev successfully challenged an attempt
by the ncato seize three London homes
worth over £80m, which the agency be
lieved had been acquired with dirty money.
A report published in March by academics
from the University of Exeter who special
ise in crossborder corruption concluded
that the ruling was flawed because the
High Court judge in question had “accept
ed evidence from the Kazakhstani authori
ties that was likely tainted by political
bias”. It also found that she did not ques
tion the reasons why Dariga Nazarbayeva,
the expresident’s daughter, and her son
were using complex offshore structures.
British justice also suffers from a lack of
transparency. Although many hearings are
public, finding out in advance when and
where they will take place is often a chal
lenge. Information about cases, including
transcripts, is hard and expensive to ob
tain. This stands in stark contrast to Amer
ica, where full sets of transcripts and other
documents in federal and state cases are
readily and cheaply available (at ten cents a
page, with a cap of $3 per document) via us
erfriendly public databases.
Another concern about the court sys
tem is the cost of justice for litigants. Brit
ain, again in contrast to America, practises
“costsshifting”, in which the loser in a
case pays some or all of the winner’s costs.