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Ethics: The ethically superior lawyer

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Cite as: (2007) 81(12) LIJ, p. 88

Can lawyers legitimately stake a claim to ethical superiority?

Surveys reveal that almost all lawyers consider themselves to be ethical persons. Yet polls of the general population rarely display such a positive spin on the ethical status of legal profession members.

Of course, polls can be influenced by factors beyond the real issue at stake, and popularity of a view is hardly evidence of its accuracy. However, the polls do highlight an “ethical expectation gap” between lawyer and community perceptions of lawyers’ ethical status.

It is therefore legitimate to inquire into what can substantiate lawyers’ claims to ethical status.

Essential to this inquiry is some attempt to define what is meant by the phrase “ethical conduct”. To this end, I would suggest that much of ethical conduct – both in the legal environment and outside it – centres on twin ethical values: honesty and unselfishness.

Each of these values is seen by many as desirable for the proper functioning of society and, so far as lawyers are concerned, is reflected in both judicial statements and statutory proscriptions. Copious statements by the courts, legislatures and regulatory bodies extol the importance of unwavering honesty for lawyers.

Fiduciary law, more so than any other legal doctrine, aims to foster unselfishness in the lawyer-client environment.

If honesty and unselfishness do indeed closely chart ethical behaviour, a second legitimate inquiry is to determine what it is about members of the legal profession that is directed to exhibiting these two characteristics. Can it be said that the study of law (as opposed to, say, business) attracts individuals who are more likely than others to be honest and unselfish?

There is no empirical evidence of which I am aware that supports such a proposition. Although many may be attracted to study law for idealistic reasons, the public perception at least is that persons inclined to study nursing or education are less likely to be driven by self-interest than those inclined to study law.

Admission to a university law course says nothing about a person’s ethics, as universities make no attempt at ethical screening. It may also be difficult to maintain that lawyers’ ethical status is justified by their course of study itself, as most professional university degrees in modern times include instruction on ethics.

The first real ethical hurdle for the prospective lawyer to overcome is admission to practice, the good fame and character requirement in particular. Yet as noted in my October column [“Fit to practise”, page 76], history reveals that this hurdle has not generally proven difficult to surmount.

Although there is evidence that inquiries into “good fame and character” have progressively become more exacting, few would characterise these inquiries as extensive. Moreover, most professions prescribe character requirements as a prerequisite to admission to their ranks.

Does the practice of law itself then justify claims to ethical status? Couched in terms of my definition of “ethical conduct” above, what is it about the practice of law that encourages lawyers to be honest and unselfish? The prevailing business approach to the practice of law, for instance, for many appears to foster selfish conduct rather than diminish it. And it is reasonable to assume that younger lawyers will not infrequently draw their ethical legal practice compass from senior lawyers with whom they work, which in turn can sustain a claim to ethical status just as much as it can undermine it.

This may explain professional bodies’ prescription of ethics training as part of mandatory continuing legal education. Most agree, though, that instruction in ethics – whether at law school or at a time thereafter – cannot make a dishonest person honest, or a selfish person unselfish; what it can achieve is to address the details that constitute honesty and unselfishness in legal practice.[1]

It is perhaps through professional disciplinary proceedings that issues of honesty and unselfishness become subject to the closest scrutiny. What determinations from these proceedings generally reveal is that the most serious disciplinary sanctions are reserved for dishonest and selfish behaviour.

For instance, the misuse of trust money and the making of knowingly false statements almost guarantee striking off, or at least suspension for a lengthy period.[2] Placing one’s own interests (especially financial interests) ahead of those of the client clearly evidences selfishness and lack of self-restraint, as does proven gross overcharging,[3] and so these forms of behaviour generate a weighty disciplinary response.[4]

It follows that ethical standards are maintained chiefly through evidence of their breach. As such, the profession’s main basis for a claim to high standards of ethical behaviour is arguably grounded in its response to proven unethical behaviour. Yet, again, it cannot be blithely assumed that those ethical standards are more stringent than those applied in disciplinary proceedings involving other professions or occupations.

Perhaps it is time to make the difficult (and troubling) concession that lawyers may not necessarily be “more” ethical than other occupational groups or callings, and that a perceived ethical superiority arising out of the “high calling” to the law has little evidence to support it.

Paradoxically, it may be that an admission of no inherent ethical superiority may itself serve to improve public perception of lawyers’ ethics.

GINO DAL PONT is Professor, Faculty of Law, University of Tasmania.

[1] S Gillers, “Getting personal” (1995) 58 Law and Contemporary Problems 61 at p62.

[2] See, for example, Re a Practitioner (1982) 30 SASR 27 (misuse of trust money); Attorney-General v Bax [1999] 2 Qd R 9 (false statement).

[3] See, for example, New South Wales Bar Association v Amor-Smith [2003] NSWADT 239.

[4] See, for example, Law Society of New South Wales v Harvey [1976] 2 NSWLR 154.


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