Ethics in practice in asylum law: asylum legal aid lawyers’ moral reasoning in respect of ‘hopeless cases’

ABSTRACT

The aim of this paper is twofold: first, it seeks to provide a better understanding of lawyers’ ethics in practice in the field of publicly funded asylum law. It does so by examining Dutch asylum legal aid lawyers’ moral reasoning in respect of the ethically challenging issue of ‘the hopeless case’, employing a version of Christine Parker’s four approaches to moral reasoning in legal practice: adversarial advocacy, responsible lawyering, moral activism and relational lawyering. Second, it aims to demonstrate the applicability of Parker’s taxonomy, developed in a common law country (Australia), to a civil law country (The Netherlands). This paper shows, in line with what Parker argued, that lawyers may apply a combination of approaches – different ethical considerations carry different in weight in different circumstances. It provides illustrations of situations in which approaches coexist and compete and the circumstances in which one prevails over the other in the area under review.

KEYWORDS:

• Lawyers’ ethics
• professionalism
• moral reasoning
• approaches to ethics in practice
• asylum law
• legal aid lawyers

Introduction

In the scholarly literature on lawyers’ ethics and professionalism two main discussions can be discerned:¹ the one is normative (what professional standards should guide lawyer conduct) and the other essentially empirical (how do lawyers understand and enact their professional duties).² This paper is about the latter. The professional rules and codes of conduct (the ‘hard law’ of ethics)³ intend to prescribe the appropriate conduct and to guide lawyers in how to deal with the ethical problems they encounter. Yet, these rules are often indeterminate: they allow for different visions on what lawyers’ professional obligations entail and leave room for different interpretations according to the situation one is confronted with.⁴ When employing an empirical perspective to studying lawyer professionalism, Nelson and Trubek argue that one cannot understand lawyer conduct without paying attention to professional ideology: ‘Lawyer behavior is in itself oriented towards some normative vision, official or otherwise, and is unintelligible without attention to ideals of conduct’.⁵ Christine Parker’s work on the development of a critical morality for lawyers is relevant and valuable in this regard. She suggests four broad approaches to moral reasoning in legal practice: adversarial advocacy, responsible lawyering, moral activism and ethics of care (relational lawyering).⁶ These can serve the practical purpose of helping lawyers navigate difficult decisions in practice but also, I believe, the more theoretical objective of obtaining a better understanding of lawyers’ ethics in practice. In particular, the normative visions and ideas lawyers have about their role and how these are integrated in their daily practice. Analysing lawyers’ moral reasoning by using the ethical approaches helps to understand how lawyers weigh different interests and how personal morality and role morality are considered. It provides a tool for exploring professional ideology in the actual work context.

In this contribution I examine the moral reasoning of asylum legal aid lawyers in the Netherlands. These approaches were developed in the common law context of Australia, but I will show these are also applicable and of use in a civil law context.

In the following, the particulars of the practice area of publicly funded asylum law will be described, as well as the ethical issue under review here (‘hopeless cases’). Second, the methods will be set out. Third, I will discuss the version of Parker’s four approaches to lawyers’ ethics I employ for the analysis and, subsequently, show how these lines of moral reasoning are seen in the accounts of the asylum legal aid lawyers. Fourth, I will provide illustrations of situations in which approaches compete and circumstances in which one prevails over the other, followed by the conclusion and discussion.

Ethical challenges in the area of publicly funded asylum law

The practice area of publicly funded asylum law has several characteristics that, in combination, make the work of legal aid lawyers ethically challenging.⁷ First of all, asylum seeking clients are very much dependent on a lawyer in order to be able to realise their rights and secure their interests. Asylum seekers may be traumatised or have medical problems. They often do not speak the language of the country they arrived in, are unfamiliar with the legal system and do, generally not know what to expect of the asylum procedure and what is expected of them. Assisting the client with the legal aspects of her or his case may require the performance of serious ‘emotional labour’ from of the lawyer.⁸ Also, the asylum process is typified by an inequality of the parties involved, that is the asylum seeker as a ‘one-shotter’ versus the state as a ‘repeat player’.⁹ Repeat players have strategic advantages in the procedure in several ways and the state can even be considered the ‘ultimate repeat player’.¹⁰ The legal aid lawyer (being a repeat player to some extent) is introduced into the asylum process in an attempt to compensate for this inequality in this arguably politically contentious field in which decision makers may be unreceptive.¹¹

Second, apart from being politically sensitive, asylum law can be considered complex and having an, at times, ambiguous character both on a legal and a factual level. On a legal level, this area of law is in constant flux. The relatively recent establishment of a Common European Asylum System (CEAS) produced regulations that have implications for national asylum policies of EU member states.¹² The European Convention on Human Rights (ECHR) also plays a prominent role in this area of law. The applicability of both national and European (CEAS, ECHR) and international (the original Refugee Convention) legal frameworks opens up the debate on whether national asylum policies are in line with European and international asylum legislation. The judgments of the European courts flowing from these challenges may have implications for national policy thereby rendering the content of asylum law uncertain and making it more difficult to assess the chances of legal success. On a factual level, the uncertainty plays as well. Whether there is actually a risk of persecution of an asylum seeker upon return is hard to establish. Moreover, during the asylum procedure this risk may change: the situation in the asylum seeker’s country of origin may have become more (un)safe. Lastly, the overlap with immigration law and the developments in the client’s personal life may create other routes for legal stay (e.g. based on medical condition or familial reasons). The interconnectedness of asylum with immigration law may thus also alter the chances of success, that is, the eligibility for legal stay in the receiving country.

Third, there are organisational aspects of both the asylum and the legal aid system that control the legal aid lawyer’s work environment. Asylum procedures can be lengthy or, conversely, extremely rapid, in which case the time limits within which the lawyer must act are short. In the Netherlands, the legal aid lawyer’s work is delimited by the institutional setting of the asylum procedure.¹³ Lawyers are appointed by the Legal Aid Board to asylum seeking clients in a fixed eight-day general asylum procedure (which can be extended) in which it is largely determined where, when and how long the lawyer can see her or his client as well as what must be discussed to a great extent. After this procedure before the immigration service (IND) there is the possibility of an appeal (district court) and onward appeal to a higher court (Council of State) and eventually to the European Court of Human Rights (ECtHR). Merits of claim testing by the lawyer is prescribed by law, but not strictly applied in practice.¹⁴ As legal aid lawyers operate within the national legal aid system, they are reliant on the legal aid authority for obtaining access to the legal aid scheme and, subsequently, for obtaining disbursements and payment; a payment that is primarily based on fixed fees and has been subject to funding cuts.¹⁵ These lawyers are thus largely dependent on the state – the party they are litigating against – regarding their work conditions, as well as the possibility to ensure enough income to be able to sustain a legal aid practice. This institutional context, that is, the asylum and legal aid system, in which lawyers operate, causes ethical pressures.¹⁶

In brief, the particulars of asylum seekers as a clientele, the politically sensitive, complex and sometimes ambiguous nature of asylum law in combination with the institutional context in which lawyers operate, make the practice area of publicly funded asylum law ethically challenging. An ethical issue in which the conflict of different interests – in particular the client interest and the public interest – culminate is the so-called ‘hopeless case’.¹⁷ The combination of the high stakes for asylum seekers with the fact that, when they are eligible for legal aid in the Netherlands, they do not have to contribute financially to the legal assistance they receive, often leads them to wanting to try every possibility (appeal and onward appeals) to have their claim accepted. The lawyer may thus be confronted with vulnerable and desperate clients who very much rely on their lawyer for realising their rights and securing their interests, and are determined in their wish to start and/or continue a procedure of which the lawyer considers the chances of obtaining legal success to be (close to) zero. While starting such a procedure may be in the client’s interest, it may not be in the public interest, as it might unnecessarily burden the administrative, judicial and legal aid system. Given that this is a burning topic in this field, it is well suited to explore the moral reasoning of asylum legal aid lawyers.¹⁸

Methods

This paper is based on 22 semi-structured, in-depth interviews with a varied group of Dutch asylum legal aid lawyers conducted in 2013 for my dissertation.¹⁹ These are lawyers registered with the Dutch Bar (Nederlandse Orde van Advocaten) who are authorised under the government’s legal aid scheme to assist and represent asylum seekers in the asylum procedure. The lawyers were selected based on the relevant factors that emerged from the literature in order to have a large variation in respondents.²⁰ In the interviews I inquired into how respondents deal with the issue of the ‘hopeless case’. I refrained from actually using the term, but enquired about their decisions in respect of this issue indirectly. In doing so, I sought not to impose a definition of a ‘hopeless case’ as this would have prevented me from getting a full picture of lawyers’ conception of what this entails, how they approach this question and the considerations they take into account when determining whether to proceed – and this is all relevant for understanding their decisions and normative visions about their role. In the analysis of the interviews I focused on how they deal with what I term more narrowly ‘hopeless procedures’ – that is an application or court procedure in which the lawyer considers the chances of obtaining legal success in that procedure and at that moment in time to be (close to) zero – and their motives.

In my study I adopted an explorative approach. I came across Parker’s set of conceptual tools in the course of the research and I started employing it only after conducting the interviews and after an initial exploration and analysis of the fieldwork. This prevented me from focusing in the interviews only on aspects which I understood to be relevant based on the different ethical approaches available to lawyers distinguished in the literature and from steering (unconsciously) respondents’ accounts to fit the typology and allowed me to approach my data with an open mind. In the interviews I was presented with different views on when cases are actually hopeless and a whole range of arguments for and/or against starting hopeless procedures; I found that in these motivations all four lines of moral reasoning Parker distinguishes were seen. While in the literature also other typologies have been discussed,²¹ I agree with Evans and Forgasz that Parker’s attempt ‘to capture all of the essential and often competing ethical standpoints of lawyers as observed anecdotally by many writers and researchers’ comprehensively covers the different possible ethical orientations available to lawyers.²² They also argue that the categories are likely to be of use across different jurisdictions, which I found to be the case for the Netherlands.²³

Four approaches to moral reasoning in legal practice

In this section, I elaborate on Parker’s four ethical approaches (one of which I renamed), reflect on their applicability to the area of asylum law and provide illustrations of how these lines of reasoning are present in the accounts of Dutch asylum legal aid lawyers.

Parker distinguishes four approaches to moral reasoning in legal practice: adversarial advocacy, responsible lawyering, moral activism and relational lawyering (ethic of care).²⁴ The approaches are formed from the key characteristics of the main ethical approaches generally considered available to lawyers and emphasise what is distinctive about each approach; they can be considered ‘ideal types’.²⁵ I renamed ‘responsible lawyering’ into ‘dutiful lawyering’ because I believe that the term ‘responsible’ has quite a strong normative connotation that might raise confusion: are the other approaches considered not responsible? All four approaches might be, albeit in different ways. Rather than foregrounding one’s responsibility to preserve the legal system and the law as it stands, the responsibility emphasised is the responsibility towards the client as the client’s representative in the legal system (adversarial advocacy), towards justice – possibly external to the law (moral activism) or towards the client in her or his network of relationships (relational lawyering). The three latter approaches prioritise other responsibilities than the responsibility to preserve the legal system and the law as it stands. Following these lines of reasoning, this could ultimately also be seen as acting responsibly in the broader public interest in the administration of justice. These approaches can thus be viewed as expressing different interpretations of what acting responsibly in the public interest in the administration of justice requires from the lawyer. I will, therefore, use the term ‘dutiful’ instead of ‘responsible’, as this gives expression to the lawyer’s loyalty towards the law and the existing legal system without imposing as much of a value judgement. In brief, the four lines of reasoning I employ are adversarial advocacy, dutiful lawyering, moral activism and relational lawyering (ethics of care). This table presents an overview of the lines of moral reasoning and how these can roughly be distinguished:

Table

	Role Morality	Personal Morality
Client Interest	Adversarial Advocacy	Relational Lawyering
Public Interest	Dutiful Lawyering	Moral Activism

Adversarial advocacy²⁶

The adversarial advocate approach derives lawyers’ morality from the role that the lawyer is supposed to play in an adversarial legal process and complex legal system (role morality). This approach is generally considered the standard conception of the lawyer’s role in most common law countries, also referred to as ‘the hired gun’. It combines the principles of partisanship and non-accountability. Partisanship entails strict partiality, including that the lawyer should do all for the client that a client would do for himself, if he had the knowledge of the lawyer. Non-accountability requires that the lawyer is not morally responsible for either the means or the ends of representing the client, provided both are lawful. It is the lawyer’s task to ensure client autonomy in a complex legal system. The individual lawyer and client do not have to concern themselves directly with the public interest in the administration of justice; this is justified because as long as the lawyers for all parties act as adversarial advocates in the narrow interest of their clients, the legal system will produce the right outcome. One should advocate the client’s interest as vigorously as possible within the bounds of the law, in order to empower those who need to use the law to realise their rights or defend themselves against the powers of the state. The adversarial advocate believes that judging potential clients before they have had their ‘day in court’ amounts to a presumptuous denial of justice to anyone who wants to use the legal aid system. Taken to its logical extreme, this approach requires lawyers to resolve any ambiguity in the law and their own professional duties in favour of the client.

Adversarial advocacy in asylum cases

The adversarial advocacy ideal is widespread in respondents’ accounts when narrating about ‘hopeless cases’. The lawyer’s role as the client’s representative in the legal system is emphasised in several ways. Respondents refer to their function as ‘partisan’,²⁷ underline their position in the ‘game’, that is the legal system (‘everyone plays their part’)²⁸ and stress that it is the lawyer’s job to assist the client in reaching her or his goals. As one respondent puts it:

First, what does the client want? That's what you should try to achieve. Most asylum seekers want asylum and some know that this won’t be that easy, but they want you to stall as long as possible. So that means that you sometimes do things which the IND doesn’t like, but are in the client’s interest. […] We are of course the client’s advocate, that should be the number one priority.²⁹

This quote is exemplary and it shows the overriding importance given to partisanship and to ensuring client autonomy.

Several respondents explicitly stress that one should advocate the client’s interest, regardless of the situation or the lawyer’s personal views about the case or the client, as this respondent explains: ‘You, of course, hear lots of accounts that do not make sense, but then you still try – it’s your client, after all – to keep the person in the country, one way or the other’.³⁰ Another lawyer stresses that it is not her role to assess clients’ motives or to judge them. She just acts on their instructions:

There are situations where someone says he actually has no asylum claim, but just wants to stall the procedure as long as possible. Well, should you do that or not? People will have their reasons […] It is not up to me to judge.³¹

These quotes portray the view that one should refrain from moral judgement; the lawyer’s personal ethics is not relevant. The approach is primarily defined by one’s role as the client’s representative within the legal system.

Also, the position that after a rejection of an asylum claim clients, in principle, have a right to appeal, is taken by most respondents. They explain that the system is set up in the way that allows for an appeal and clients have the right to have a full procedure, including an independent judge who looks at their case: a right to their ‘day in court’. Although there may be exceptional situations in which one decides to withdraw from a case, the view is that the client has this right to appeal, even in cases the lawyer considers hopeless. This respondent explains that it requires quite an effort from the lawyer, but that these are the consequences of her principled view that the client has this right:

[…] It occurs regularly, or yes, it does occur that you think: ‘I will go there, explain the grounds of appeal, which I pulled out of thin air and put together with great difficulty, and then hope that the judge won’t pose too many questions, because I then have to conceal that I of course know myself that the case has no chance of success. So that does happen.³²

Another respondent, who is less adamant about an absolute right to appeal, also tells he let the client’s wish prevail in order to let him have his day in court:

[…] I knew the case was hopeless and I didn’t want to do it. I invited the young man to give him the chance to explain everything once more. I believed it was not going to work but if he really wanted to tell his story to the court, I would go for it. I told him I had not much to say. I explained what I wanted to bring forward and also told him that it did not make sense, but that if he still wanted to make himself heard in court we would go.³³

Here we see respondents explain that even though they might find the case hopeless, they proceed because there is some benefit to the client, that is the possibility of presenting her or his case to a judge.

Dutiful lawyering (responsible lawyering)³⁴

Like adversarial advocacy, the dutiful lawyer approach derives lawyers’ morality from the lawyer’s role in the legal system and in society (role morality), but defines that role differently. In contrast to the adversarial advocate, for whom the lawyer is first and foremost the client’s representative in the legal sys­tem, the dutiful lawyer sees the lawyer’s role as an officer of the court and guardian of the legal system. Even though the dutiful lawyer is an advocate for the client, s/he has an overriding duty to the legal system. S/he facilitates the public administration of justice according to the law in the public interest in order to preserve the social good that the legal system seeks to serve. The dutiful lawyer certainly advocates for the client’s interests, but also represents the law to her or his clients and helps them to comply. The lawyer’s advocacy duties are tempered by the duty to ensure integrity of and compliance with the spirit of the law. S/he will not use procedural rules, loopholes or hardly arguable points to frustrate the substance and spirit of the law. The dutiful lawyer may need to act as a gatekeeper of the law against the client.

Dutiful lawyering in asylum cases

Several respondents describe their role in the asylum process more (or also) in dutiful lawyer terms. Some refer to themselves as ‘procesbegeleider’, that is, the one who guides the client through the asylum process. One lawyer explains: ‘I do keep somewhat of a distance to the client. The client is the one who builds the case. I just make sure that the process runs well and that he gets the best possible legal aid during the process’.³⁵ He emphasises the lawyer’s mediating function between the law and the client. Another respondent strongly emphasises her role in facilitating the public administration of justice according to the law:

[…] I mean, the IND is not established for nothing, they also have to reject. If they don’t meet the criteria, they are rejected. I don’t want to be the one who does that, but I do see the need for that. They must tell their story. If they are eligible for a permit based on that, they must get it. In case they just tell they fled, because they did not have a job and it’s just all … other reasons and not because they are in danger, then they just have to go back.³⁶

When talking about their role in the asylum procedure these respondents emphasise that it is their task to inform the client about the law and explain the conditions they need to fulfil to be eligible for a permit. This displays the view that lawyers should use procedural laws according to their purpose, but as to substance it is the job of the court to decide what the purpose of the law is or, in first instance, of the IND to decide on the substance: ‘the IND takes a decision, but the legal aid provided must be of good quality’.³⁷ These respondents thus explain pressing any non-frivolous claim regardless of their personal opinion as to the merits. If there is a legal opportunity to advance the client’s case they take it, but the focus is on the law as it stands. It is a conservative rather than a progressive attitude.

In brief, these first two approaches discussed are based on role morality; personal moral beliefs are generally irrelevant. In contrast, the next two approaches are not based on role morality, but rather on personal morality: general ethics is integrated with legal practice, albeit in different ways.

Moral activism³⁸

The moral activist approach entails that lawyers should do good according to the general moral theory that appeals to them.³⁹ More particularly, lawyers should focus on doing justice, as this is what the legal system essentially is concerned with. If the law and legal processes as they stand coincide with the lawyer’s ideals of justice, the moral activist will not act that differently from the dutiful lawyer. However, if this is not the case, s/he will not necessarily see herself/himself confined by a duty to the law. Rather, s/he would feel obliged to do justice, even if that involves changing or challenging the law: lawyers have a responsibility to seek to make the law and the legal institutions more substantively just in the public interest. This type of lawyering can also be called ‘public interest-’ or ‘cause lawyering’.⁴⁰ Whereas dutiful lawyering is about preserving the justice of the law as it stands – and finding oneself constrained by public limits rather than stimulated to effect change – challenges to make national law more substantively just in line with supranational obligations (regarding asylum and human rights law) or social justice external to the law can be considered characteristic of moral activism. The moral activist is thus not restricted by the idea of justice intrinsic in the (national) legal system. Like an adversarial advocate, s/he may exploit loopholes and test the limits of the law to establish a client’s cause. However, s/he will not vigorously represent clients whose causes s/he believes are not just. The moral activist counsels clients to seek to persuade them of the moral thing to do and s/he withdraws if the client disagrees. This approach contains a tendency to place the lawyer’s commitment to an ideal of justice above the client.

Moral activism in asylum cases

Disagreement with the applicable legal framework for determining asylum applications is another central motivation that can be distilled from respondents’ accounts for proceeding with certain ‘hopeless cases’. Several respondents explain that they may proceed with cases that are hopeless in view of the way policy and case law stand at a particular moment in time, because they believe that the existing state of affairs is wrong and needs to be modified. An example:

In view of current case law and how this all works in the Netherlands it is indeed, at this moment in time, legally correct. Do I believe it should be different? Yes. So that is my motive. I believe that legally it should be different and I do not agree with the way arguments are being weighed. It is kind of fighting a losing battle, but then I’m like: we should just collectively continue doing this until the Council of State changes its mind, because if we all accept that things go the way they go, it will never change. So it’s a kind of protest … .⁴¹

Proceeding with cases that are hopeless at the national level in order to eventually end up at the ECtHR is also mentioned. Rather than merely helping an individual client, an important driving force is the will to change law or policy in order to make the system more just. This entails continuously proceeding in certain situations and is what a respondent calls a form of providing ‘structural legal aid’.⁴² Respondents explain they brief one another about developments and strategies and how this may lead to positive result: ‘Finally, we were proven right by the ECtHR. At that time we had twelve procedures running with the ECtHR. The sole fact that the claim is rejected by the national court doesn’t mean that you shouldn’t persist’.⁴³

In these accounts the view is expressed that it is the task of the legal profession ‘to be critical towards the government’.⁴⁴ Lawyers are supposed to question rules and policy and if they feel that the law is unjust, they should seek to change it, as a lawyer is obliged to do justice. The next quote neatly illustrates this view:

It’s like hitting the door with a hammer till it breaks down. Nowadays we have to proceed until Strasbourg [ECtHR] before things change. The government with its tough attitude keeps the door closed and thinks we should accept it all like that. We can only ponder on the application of policy: ‘He qualifies as a Christian and he doesn’t.’ But we don’t have to start about the fundaments of policy changes. Rather not. ‘We as a government are doing such a great job.’ We as lawyers are not going to accept that; we continue hammering.⁴⁵

In all these quotes we see the moral activist line of reasoning that the legal system may need to be changed to become more just and that lawyers have a responsibility in effecting this change – which eventually is in the public interest in the administration of justice. This includes continuously testing the limits of the law and starting procedures that in view of the state of affairs at a certain moment in time may be hopeless, but may eventually lead to a more just system.

Relational lawyering (ethics of care)⁴⁶

Like moral activism, relational lawyering involves the integration of personal morality with legal practice: it is based on personal rather than role morality. Yet, whereas the moral activist is principally committed to the cause of justice and social change, the relational lawyer is interested in personal rather than social change. This approach is concerned with avoiding harm and concentrates on ‘trying to serve the best interests of both clients and others in a holistic way that incorporates the moral, emotional, and relational dimensions of a problem into the legal solution’.⁴⁷ It thus focuses on the lawyer’s responsibility to clients and their relationships. In contrast to the adversarial advocate approach, the client’s best interests are seen within the context of her or his network of relationships. It sees relationships as more important than the institutions of the law or systemic and social ideas of justice. Parker argues that ‘ethics of care’ concerns have influenced legal practice in that it encourages a more holistic view of clients and their problems (considering the non-legal and non-financial consequences of the different legal options open to the client), emphasises participatory approaches to lawyering and dialogue between lawyer and client and encourages a preventive, problem-solving approach (non-adversarial ways to resolve disputes). It also distinguishes itself from adversarial advocacy in that, rather than departing from role morality (it does not matter whether the lawyer understands or approves of the client’s wishes: s/he is neutral, amoral), it departs from personal morality (the lawyer does understand and approves of the client’s wishes: pursuing the client’s interest in a particular case is in line with one’s personal morality). Being unwilling or unable to compromise personal morality, thereby selectively abandoning professional obligations or modifying them according to one’s own beliefs – the rules of the legal system and professional conduct are weighed, but do not provide the final answer to what is morally right – is something I understand as an aspect of relational lawyering.⁴⁸ In brief, this type of lawyering encompasses all circumstances and particularities of the client’s case (legal and non-legal) and weighs all obligations, both professional and personal moral.

Relational lawyering in asylum cases

Several respondents who tell they assist their clients on appeal in order to let them have their day in court, explain that they do so for humanitarian reasons as well. From ‘a human perspective’ they cannot allow themselves to let the client down as: ‘you can imagine that you would also want to try every possible option’.⁴⁹ Also, several respondents refer to a court judgment as a way to make it easier for the applicant to accept the decision and move on: ‘it means closure for people’.⁵⁰ The lawyer’s responsibilities to people, communities and relations is clear from the next account, where the lawyer displays a more holistic view of clients and their problems and establishes an approach in dialogue with the client:

If a client explains to me why he wants to stall – documents are on the way, wife needs to give birth – that can be a reason to start a certain procedure or lodge an objection even if it has not that much change of success. Then there is at least the suspensive effect. […] Yes, it’s all temporary, but if people say they need a few months, it is possible. That can be a reason.

One’s personal ethics is integrated with legal practice: the lawyer assesses and understands the client’s wishes and helps the client with the broader aspects of his problem, not restricting it to a legal solution.

The example given by one respondent is – although exceptional – exemplary of this approach. It concerned a situation in which the respondent helped a client in the preparation of what she refers to as his ‘fake conversion’ to Christianity in order to be eligible for a residence permit.⁵¹ It concerned a client who obtained a permit that was withdrawn at some point: a young man who built a life in the Netherlands, went to school, had a girlfriend, spoke Dutch really well and was also ‘a very nice guy’. She explains that this is not something she would normally do, but in the case of this man she felt he was smart enough for it to work and she was able to help him achieve it. In response to the question whether she did not feel troubled by doing so, she states:

No. Given the situation … Look, there are many people who obtain permits … sometimes people obtain permits and then I’m thinking ‘how can this be?’ […] So then I’m thinking, this time I will use the system to my advantage. […] So I do not feel troubled by it. I actually thought it would be funny to see whether it would work.⁵²

This can be viewed as a relational lawyer approach in that is a (maybe quite far-reaching) participatory approach to lawyering: relationships are regarded more important than the institutions of the law or systemic and social ideas of justice. She selectively abandons professional obligations.

Coexisting and competing approaches

All four lines of reasoning in all possible combinations were seen in the interviews with Dutch asylum legal aid lawyers and virtually all accounts contained multiple lines of reasoning. Here I will illustrate the coexistence of approaches, how they compete and give examples of circumstances in which one prevails over the other.

Adversarial advocacy and relational lawyering: client first

In case of conflict, these approaches prioritise the client’s interest over the public interest, either based on role morality or personal morality. The adversarial and the humanitarian motives discussed above are often advanced simultaneously. The legal aid lawyer’s position in the asylum process and asylum seekers’ dependence on their lawyer is referred to in this regard, as well as the aspect of empowering those who need to use the law to realise their rights and are confronted in that respect with the powers of the state. The next quotes neatly illustrates this:

If I say: I, as a lawyer, will not assist and neither will my colleague nor my other colleague, well, then the client is done. He can’t go to court. He is locked up or in the reception centre and has no possibility to bring his matter before the court, while he really wants to. Well, are you ruthlessly going to say ‘no’? Then I’ve decided on it and I am not the government.⁵³

The interest of that individual client against that huge government; it is already extremely difficult to get that interest to the fore. So if there are possibilities within the client’s individual life to gain time, then I am of the view that as a lawyer one should do so.⁵⁴

The former respondent also emphasises that ‘a legitimate interest for the client does not have to stem from the applicant’s ground for applying, gaining time can be a reason’. If, regardless of the chance of legal success there is some benefit to the client (allowing the client her or his day in court, feeling represented and supported or gaining time) that can be a reason to proceed. In this we see the adoption of both adversarial and relational lawyer approaches: respondents act in the client’s interest because of their obligations as the client’s representative in the legal system and because of their personal morality: in their relationship with the client they cannot justify letting the client – who is very much dependent on the lawyer – down.

Adversarial advocacy or dutiful lawyering? Stage of the procedure and legal aid versus private cases

While the adversarial advocacy line of reasoning is strongly represented in the accounts of respondents, the dutiful lawyer line of reasoning is also present alongside it. These approaches both depart from role morality, but are each other’s opposite in that, in case of conflict, either the client or the public interest prevails.

The adversarial motive of proceeding on appeal because the client wants to and has a right to her or his ‘day in court’ is advanced by most respondents putting forward this argument only as sufficient motivation at the appeal stage and not higher up. For example: ‘In order to lodge an onward appeal there must be something you can actually argue’.⁵⁵ With regard to the initial application and appeal stage, these respondents refer to the unpredictability of the chances of success: it is really difficult to assess how the decision makers will decide and, on appeal, one might win cases against one’s own expectations. In this we see the adversarial advocacy line of reasoning: even the slightest ambiguity in the law is resolved in favour of the client and one’s personal views about a case – including their personal opinion as to the merits – should not principally be guiding. However, at the onward appeal stage, they point out it is often more predictable how the court will decide, which makes this argument less prominent. Besides, there is hardly ever an actual day in court on onward appeal before the Council of State.⁵⁶

When deciding whether to proceed with a case up to the ECtHR, the dutiful lawyer line of reasoning turns up with some respondents who earlier emphasised their adversarialism. At this stage, the obligation towards the legal system and acting as a ‘gatekeeper’ is mentioned.⁵⁷ For example:

I only do it if … Look, then you really need to believe in a case. The European court really is inundated with cases. I can easily litigate up until the Council of State, but then tell the client: ‘this is where it ends’.⁵⁸

When she ‘believe[s] in a case’ and considers the claim justified, she is willing to pursue it. This moral activist line of reasoning exists alongside dutiful lawyer and adversarial considerations: depending on the stage of the procedure and the nature of the client’s claim either one of the approaches prevails – see more elaborately on moral activism below.

The coexistence of adversarial advocacy and dutiful lawyering is also seen in a respondent’s account when he talks about the difference between representing clients in legal aid versus private cases. When discussing his work as a legal aid lawyer, he refers to himself as a ‘procesbegeleider’ (quoted above),⁵⁹ emphasising his role in facilitating the public administration of justice and mediating function between the law and the client. When telling about a private case, where a client wanted him to stall the (immigration) procedure by lodging an objection, he indicates that whether he is paid with public money or not is relevant in deciding whether to proceed:

R:

If he would pay for it himself and he would sign a document to that end, I would do it. You know why? He is paying for it himself and not through government funds.

I:

Is that important to you?

R:

Yes, absolutely. All the elements are interconnected and taken them together you can say I do it or I won’t. And one of the elements is finances; who is paying for it.⁶⁰

The adversarial argument of acting on the client’s instructions is thus central to him in private cases.

The coexistence of the lines of reasoning discussed in the two paragraphs above may not be considered that surprising as they overlap either in focus on the same interest (adversarial advocacy and relational lawyering) or on role morality (adversarial advocacy and dutiful lawyering). Yet, also combinations of approaches that are each other’s complete opposite are seen in the accounts of respondents; there the tension between the approaches becomes more visible.

Adversarial advocacy or moral activism: prioritising the client’s interest or justice?

Many respondents utter both the adversarial advocacy- and moral activist line of reasoning. At first sight this is remarkable, because the approaches are each other’s opposite in both ways: adversarial advocacy focusses on role morality and the client’s interest, whereas moral activism departs from personal morality and the public interest in the administration of justice. Yet, in asylum law these interests often coincide: it may be in clients’ interests to pursue a case up until the highest courts, as well as in the interest of justice: asylum seekers in a similar situation can be able to also secure their rights if a certain interpretation of the law favourable to the asylum seeker is accepted by a higher court. The tension arises where the interest of the individual client and the interest of asylum seekers collectively in a legal system that produces just outcomes do not overlap.

Some respondents state being more careful in lodging appeals in certain evidently hopeless cases (which the client may instruct the lawyer to do and may benefit an individual client), because it ruins the credibility and reputation of the larger group. For example: ‘if you take too many such cases to court, you are ruining it for your colleagues, because judges aren’t really listening and focused anymore, and are like “here we go again … ”’.⁶¹ This makes it eventually more difficult to obtain results in cases in which it ‘really matters’ and in which they try to influence policy and case law in the interest of asylum seekers collectively, which they deem in the public interest of justice and is key to them. So depending on the nature of the client’s claim and the extent to which a case is actually hopeless, either the adversarial advocate or the moral activist line of reasoning is emphasised by respondents who utter both. If these approaches are combined, some respondents express a somewhat less strong adversarial stance for reputational reasons. As another lawyer puts it: ‘I’m a very proud man. I don’t want my name to be associated with a lousy case’.⁶²

The tension also manifests itself in the opposite direction. In respect of the decision whether to proceed with a case to the ECtHR, respondents point to the practical disadvantages of this procedure for the client: it can take a very long time and during that period the client is not eligible for reception and can be expelled.⁶³ The client must be willing and able to hold out for a long time. This is provided as a reason for being reticent in proceeding to the European level and look for alternative possibilities, such as issuing a subsequent asylum application or investigating other grounds for legal stay, for example, on regular migration grounds (family life, medical reasons). The focus may shift to the client at the expense of justice: the interest of the individual client outweighs the collective interest in having a certain policy challenged.

When dutiful lawyering is outweighed by relational lawyering: vulnerable clients

Like adversarial advocacy and moral activism, dutiful lawyering and relational lawyering are completely opposite approaches. In certain cases concerning vulnerable clients, I found the former being outweighed by the latter. An example. This respondent emphasises his position as a gatekeeper and stresses that he is against using procedural rules or loopholes to frustrate the substance and spirit of the law:

To me what counts is that the client gets what he is entitled to and that he knows where he stands. […] What I have to offer is clarity: what are your rights? I won’t take alternative routes, no hopeless applications.⁶⁴

When discussing his actual decisions, it becomes clear that other considerations may outweigh this ideal. He explains that in certain circumstances he is willing to lodge appeals to prevent immediate expulsion or to allow the client her or his day in court. He describes that he, at times, after talking it through with the client, chooses to assist the client in an lodging appeal in hopeless cases. For example, when the client is seriously ill or really exhausted from the journey. He tells about a case of a Syrian applicant who entered Europe first through Romania and needed to go back to apply for asylum there.⁶⁵ The client told that he was treated badly in Romania (kept in detention, beaten, blackmailed by a corrupt interpreter etc.) and did not want to return and apply for asylum there. The lawyer explains:

[…] the appeal phase approached. Are you going to appeal or not? You know in advance that the case will be rejected, because the judge also has to give good reasons for his decision and if he doesn’t, the Council of State will revoke it. But I couldn’t justify it to myself. I knew the kind of suffering he endured in Syria and he wanted to tell about that. Yet, he had to do that in Romania, and not here. I listened to it all, even though I knew it wasn’t relevant for his application in the Netherlands. That made it all more complicated, because then you see the suffering a person endured […].

In another case he considered hopeless he resorted to stalling and lodged the appeal without attending the hearing: ‘Just to make sure he could stay with his wife longer. She was pregnant.’ He does, however, stress that these situations are very exceptional.

Here we see how the relational lawyer approach outweighs his initial dutiful lawyer line of reasoning. In his relationship with the client he cannot justify letting the client down: he prioritises the client’s interest because of his personal morality.

Conclusion and discussion

In examining asylum legal aid lawyers’ moral reasoning in respect of ‘hopeless cases’ in the Netherlands, I found that Parker’s taxonomy captures the lines of moral reasoning I distilled from the interviews. Therefore, I concur with Evans & Forgasz that, besides the common law context of Australia, the ethical approaches are ‘likely to be of use across different jurisdictions with different jurisprudential traditions’.⁶⁶

In line with what Parker argued, I found that different moral considerations carry different weight in different circumstances and, in practice, lawyers apply a combination of approaches.⁶⁷ Even though some lines of reasoning are more prevalent in respondents’ accounts, respondents also utter different lines of reasoning simultaneously and, depending on the circumstances of the case and the situation one is confronted with, one line of reasoning is emphasised or prevails over another. I found these circumstances to include: the nature of the client’s claim (‘justified’ or not), the extent to which a case is actually considered hopeless, whether a case is a legal aid or a private case, the stage of the procedure and the vulnerability of the client (whether there are exceptionally distressing aspects to the client’s situation).

The characteristics of asylum seeking clients (often vulnerable, high stakes, one-shotters up against the ‘ultimate repeat player’: the state) help, in part, understand the relatively strong focus on the client’s interest discerned among the respondents (the coexistence of adversarial advocacy and relational lawyering).⁶⁸ Also, asylum law is a very political area of law on which there is much discussion. The way in which the asylum system functions and whether it leads to just outcomes, is key in understanding the lines of reasoning based on personal morality seen in respondents’ account. The uttering of the moral activist and relational lawyer lines of reasoning when justifying the strategies employed in assisting their clients, is connected to lawyers’ views about the morality of the law and the asylum system. Reference is made to the asylum system being random, containing flawed elements and producing unjust outcomes in individual cases: it is qualified as not being fair and this has been used as a justification for not always fully playing by the rules. For instance, the (exceptional) example of assisting a client in a fake conversion or, the more common, starting of hopeless procedures.

Within the context of asylum and immigration law, the work of Appelqvist and of Levin already indicated the importance of how lawyers think about the law and the system within which they work for understanding their choices and ideas about their role.⁶⁹ In her study on Swedish lawyers’ opinions and motives for working in refugee law, Appelqvist found that lawyers’ commitment to asylum cases is verbalised in connection with legal shortcomings and the struggle for the protection of the right to seek asylum.⁷⁰ She found that those who had low confidence in and were critical of the determination process, used their professional skills as strategies of resistance to the injustice and unfairness they experience. The substantive aspects of asylum law, that is the restrictive asylum policy and how the determining authorities function, and lawyers’ disapproval thereof, were thus found important in how they went about doing their work. Similarly, Levin showed that some US immigration lawyers – many of whom believe the system to be unfair – will not turn down clients who may be lying, reasoning that it is the job of the government to find out whether this is the case.⁷¹ Hence, these studies showed that personal values and believes about the law and the system within which lawyers work are important for understanding their ethics in practice. This paper further supports this. In particular, how this is at play in personal morality overriding role morality. We have seen that if the law and legal processes as they stand do not coincide with the lawyer’s ideals of justice, respondents may not necessarily, depending on the circumstances of the case, find themselves confined by a duty to the law, but rather use their professional skills as strategies of resistance to the injustice and unfairness they experience, either with a view to making the law and the legal institutions more substantively just in the public interest (moral activism) or to mean something in the life of an individual client in her or his network of relationships, in other words, to achieve personal rather than social change (relational lawyering).

My findings on asylum lawyers thus substantiate what Levin and Mather argued more generally, namely that lawyers’ views on the law’s morality may affect the way they approach ethical dilemmas: ‘Lawyers’ perceptions that the particular law or systems within which they operate are unfair, unjust, or unreal may lead lawyers to behave in more problematic ways or to develop norms that are at odds with the positive law’.⁷² Whether acting by letting personal morality prevail over role morality is actually ‘problematic’ is a normative question which I do not aim to answer here.⁷³

As a final point, these findings on the moral reasoning of asylum legal aid lawyers must be understood within the Dutch context. Although the characteristics of asylum seekers as a clientele and asylum law would not differ so much within the European – or even international – context, the specifics of the professional context (the professional regime and the national legal culture) and institutional context (the asylum and legal aid system) do differ per country. These may prescribe or demand a certain role morality and may affect the room lawyers providing legal aid to asylum seekers have to act in line with their personal morality. The role this context plays in understanding the ethics in practice of asylum legal aid lawyers is outside the scope of this article, but must not be disregarded.⁷⁴ Even though the findings presented in this paper must be understood within the Dutch context at the time of the interviews,⁷⁵ I would argue that the use of different lines of reasoning the circumstances that play a role in the shift in focus from one approach to another, as well as the observations on asylum seekers as a clientele and the specifics of asylum law for understanding the findings, apply more broadly.⁷⁶

Disclosure statement

The author is a member of the Dutch Legal Aid Board's National Advisory Committee on Legal Aid in Asylum and Aliens Detention (www.raadvoorrechtsbijstand.org/over/commissies/larav/).

Additional information

Funding

The research on which this paper is based, is partly funded by the Dutch Legal Aid Board . The co-funder had no role in the research design, fieldwork, analysis or decision to publish.

Notes

1 The term ‘professionalism’ is often used in overlapping and distinct senses (see eg Robert E Atkinson, ‘A Dissenter’s Commentary on the Professionalism Crusade’ (1995) 74(2) Texas Law Review 259, 271–9), but is used here synonymous to ‘ethics’.

2 Scott L Cummings, ‘What Good are Lawyers’ in Scott L Cummings (ed), The Paradox of Professionalism: Lawyers and the Possibility of Justice (Cambridge University Press 2011).

The latter covering studies on lawyers’ ethics in practice, eg Lynn Mather, Craig A McEwen and Richard J Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (Oxford University Press 2001); Leslie C Levin and Lynn Mather (eds), Lawyers in Practice: Ethical Decision Making in Context (The University of Chicago Press 2012).

3 David J Luban, ‘Introduction’ in Deborah L Rhode and David J Luban (eds), Legal Ethics Stories (Foundation Press 2006).

4 See eg David B Wilkins, ‘Legal Realism for Lawyers’ [1990] 104 Harvard Law Review 468.

5 Robert L Nelson and David M Trubek, ‘Arenas of Professionalism: The Professional Ideologies of Lawyers in Context’ in Robert L Nelson, David M Trubek and Rayman L Solomon (eds), Lawyers’ Ideals/Lawyers’ Practices (Cornwell University Press 1992).

6 Christine E Parker, ‘A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’ (2004) 30(1) Monash University Law Review 49; Christine E Parker and Adrian H Evans, Inside Lawyers’ Ethics (3rd edn, Cambridge University Press 2018).

7 Although there are some particulars to the Dutch system, many of the features of asylum law described below apply to legal aid lawyers in most countries, especially to those practising in European countries that are subject to EU law.

8 Chalen Westaby, ‘“Feeling Like a Sponge”: The Emotional Labour Produced by Solicitors in their Interactions with Clients Seeking Asylum’ (2010) 17(2) International Journal of the Legal Profession 153.

9 Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9(1) Law and Society Review 95.

10 Ibid. Bert Niemeijer, ‘Galanter Revisited: Do the “Haves” (Still) Come Out Ahead?’ in Bernard Hubeau and Ashley B Terlouw (eds), Legal aid in the Low Countries (Intersentia 2014) 90; Herbert M Kritzer, ‘The Government Gorilla. Why Does Government Come out Ahead in Appellate Courts?’ in Herbert M Kritzer and Susan S Silbey (eds), In Litigation: Do The ‘Haves’ Still Come out Ahead? (Stanford University Press 2003) 362. Possibly most importantly: As the stakes in one particular case may not be that high, the state can afford ‘to play for the rules’, whereas for most one-shotters this is not the case. In particular for asylum seekers, as it can a matter of life or death.

11 Jessica Anderson and others, ‘The Culture of Disbelief: An Enthnographic Approach to Understanding an Under-Theorised Concept in the UK Asylum System (ox.ac.uk)’ (2014) 102 Refugee Studies Centre Working Paper Series; Maria Appelqvist, ‘Refugee Law and Cause Lawyering: A Swedish Study of the Legal Profession’ (2000) 12(1) International Journal of Refugee Law 79; Thomas Spijkerboer, De Nederlandse rechter in het vreemdelingenrecht (Sdu 2014).

12 Between 1997 and 2005, several legislative measures harmonising common minimum standards for asylum were adopted, including the Dublin Regulation which deter­mines which Member State is responsible for examining the asylum application. These have been revised in recent years.

13 Tamara T Butter, ‘Providing Legal Aid in Asylum Procedures in the Netherlands: A Challenging Business?’ in Hubeau and Terlouw 2014 (n 10).

14 Article 12(2)(a) Legal Aid Act in conjunction with Article 3 Decree on the Criteria for Granting Legal Aid. It is only where there are subsequent asylum applications that it is verified whether there are new facts or circumstances which merit the granting of legal aid.

15 Among other things, cuts in legal aid funding and the speed of the asylum process cause concerns about the effective provision of legal aid in asylum procedures in Europe. See eg Commission, ‘Report from the Commission to the European Parliament and Council on the application of Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status’ COM (2010) 465 final.

16 See on the Dutch and English institutional contexts Butter (n 13); Tamara T Butter, ‘Merits Testing in the English Legal Aid System: Exploring its Impact in Asylum Cases’ (2015) 36(3) Recht der Werkelijkheid 156; Tamara T Butter Asylum Legal Aid Lawyers’ Professional Ethics in Practice. A Study into the Professional Decision Making of Asylum Legal Aid Lawyers in the Netherlands and England (Eleven International Publishing 2018); Deborah James and Evan Killick, ‘Ethical Dilemmas? UK Immigration, Legal Aid Funding Reform and Case Workers’ (2010) 26(1) Anthropology Today 13.

17 The lawyer’s interest in profit or survival is also at play here, but is not the focus of this paper. For an analysis of the ‘morality vs market’ tension see Butter 2018 (n 16).

18 See eg ‘Asieladvocaten “strooien zand in de machine”’ NRC (Amsterdam, 20 December 2001); ‘Asylum Seeker Charities are Just Playing the System, Says Woolas’ The Guardian (London, 18 November 2008).

19 Butter 2018 (n 16).

20 See Butter 2018 (n 16) 24–32 for an elaborate methodological explanation and annex I of the book for a full overview of the sample and explanation of the selection criteria. The codes referring to the interview quotes below represent the criteria.

21 Eg Atkinson (n 1) distinguishes three types: neutral partisan, officer of the court and moral individualist (303 – see for references to other divisions of lawyer types 303, n 187). Parker’s first three approaches largely overlap with Atkinson’s, but the ethic of care approach is added.

22 Adrian H Evans and Helen J Forgasz, ‘Framing Lawyers’ Choices: Factor Analysis of a Psychological Scale to Self-Assess Lawyers’ Ethical Preferences’ (2014) 16(1) Legal Ethics 134. See references 138 (n 14).

23 Ibid 138 (n 13).

24 Parker (n 6).

25 Ibid; Max Weber, Economy and Society: an Outline of Interpretative Sociology (University of California Press 1978) 6.

26 Parker (n 6) 49.

27 Interview nl17-med--3-n-f.

28 Interview nl10-so-+10-y-f.

29 Interview nl19-med-+10-y-f.

30 Interview nl13-so-+10-y-f.

31 Interview nl2-s-+10-n-f.

32 Interview nl17-med--3-n-f.

33 Interview nl1-s-+10-y-m.

34 Parker (n 6) 60.

35 Interview nl15-s-3-10-n-m.

36 Interview nl5-so-2-10-n-f.

37 Interview nl15-s-3-10-n-m.

38 Parker (n 6) 65.

39 This does not have to be a formal philosophical theory, it may just be the lawyer’s personal ethics and philosophy of life.

40 Austin Sarat and Stuart A Scheingold, Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford University Press 1998) 7.

41 Interview nl17-med--3-n-f.

42 Interview nl8-s-+10-y-m.

43 Interview nl2-s-+10-n-f.

44 Interview nl11-med-3-10-y-m.

45 Interview nl20-med-+10-y-m.

46 Parker (n 6) 68.

47 Parker (n 6) 70. Parker refers to Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Harvard University Press 1982) and Thomas L Schaffer and Robert F Cochran, Lawyers, Clients and Moral Responsibility (West Publishing Company 1994) on the ethics of care and concludes that this is the focus in both conceptions.

48 Following Rand Jack and Dana Crowley Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (Cambridge University Press 1989) 120. They mention this as an aspect of ‘minimum role identification’, i.e. adoption of an ethics of care as opposed to an ethics of rights approach.

49 Interview nl12-med-3-n-m.

50 Interview nl16-so-+10-y-m.

51 Persecution based on religion is a ground for obtaining protection and a right to legal stay.

52 Interview nl10-so-+10-y-f.

53 Interview nl20-med-+10-y-m.

54 Interview nl4-s-+10-y-f.

55 Interview nl13-so-+10-y-f.

56 Most cases before the Council of State are determined in written procedures in the Netherlands.

57 Interview nl1-s-+10-y-m.

58 Interview nl9-s--2-n-f.

59 (n 37).

60 Interview nl15-s-3-10-n-m

61 Interview nl18-s-+10-y-m.

62 Interview nl20-med-+10-y-m.

63 If no interim measure is granted, which is often the case.

64 Interview nl7-s--3-n-m.

65 Because of the Dublin Regulation which deter­mines which Member State is responsible for examining the asylum application.

66 Evans and Forgasz (n 22) 138 (n 13).

67 Parker (n 6) 55.

68 The Dutch professional and institutional context is also at play in this regard. See for this analysis Butter 2018 (n 16).

69 Appelqvist (n 11); Leslie C Levin, ‘Immigration Lawyers and the Lying Client’ in Levin and Mather (n 2).

70 Appelqvist (n 11) 85.

71 Levin (n 69) 87.

72 Levin and Mather (n 2) 369. Within the Dutch context, one can debate whether the starting of hopeless procedures is actually at odds with positive law (see Tom Barkhuysen, ‘Vooraf’ (2014) 1675(32) Nederlands Juristenblad 2227). See for more on the Dutch professional context Butter 2018 (n 16) 43.

73 Compare Hew who warns against the influence of personal morality when making professional decisions in providing legal aid to refugees, in particular regarding the decision who to help and how (Jonathan Hew, ‘Fighting the Good Fight? Lessons from the Global South on Providing Legal Aid to Refugees in Difficult Situations’ (2019) 22(1–2) Legal Ethics 89, 92); or Nicolson who argues in favour of ‘contextually sensitive moral activism’ (Donald Nicolson, ‘Afterword: In Defence of Contextually Sensitive Moral Activism’ (2004) 7(2) Legal Ethics 269).

74 For the role of the professional and institutional context in the Netherlands and England see Butter 2018 (n 16). Relevant, for example, is that whereas in the Netherlands the principle of partisanship is emphasised, the English professional rules prescribe that in case principles conflict the principle which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice, takes precedence.

75 It should be noted that the interviews took place at a period in which there was a relatively low influx of asylum seekers and, as a result, less work to be distributed amongst the legal aid lawyers. It is possible, or even likely, that the actual decisions will play out differently in times where there is more work. See for this the morality vs. market discussion in T Butter 2018 (n 16) 64 ff.

76 Ibid. The comparison with England also hints to that.