In search of public interest lawyering: what does it take to give practical content to better professional norms?

In this chapter, we draw on the use of non-disclosure agreements (NDAs) by lawyers to silence victims of sexual assault on behalf of their clients and Deborah L. Rhode’s 2003 monograph In the Interests of Justice to explore three signature themes from Rhode’s work: ethics; the public interest; and women’s rights. What we see are some concerning practices by lawyers in drafting and advising on NDAs, some attempts by the legal services regulators in England and Wales, which are independent from the professions, to move towards giving greater practical content to ‘the public interest’ in their approach to regulation of NDAs, and some antipathy towards ‘the public interest’ by practising lawyers (especially where such interest conflicts with their own interests and those of their clients). We see lawyers who, in prioritising ideas of contractual freedom and lawyer-neutrality in advising on and drafting NDAs, revictimise the powerless. Our view is that a client-first mentality and professional minimalism in the context of lawyers’ ethics – both part of a professional-commercial complex – instantiate and exacerbate power inequalities between employer and employee, men and women, and diminish the traction of ideas about justice and the public interest where they are crucially needed.