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Ethics a lifelong journey

Feature Articles

Cite as: (2004) 78(7) LIJ, p. 60

It is in the interests of society as a whole and lawyers as individuals that lawyers practise their profession ethically. But what exactly are "professional ethics"?

By Russell Cocks

Profession

The meaning of the word “profession” in modern Western society is somewhat hazy. Almost any group or individual which touts services to the consumer seems inclined to adopt the description “professional” to seek to establish a marketing advantage over competitors.

While this commercialisation of the concept of a professional is anathema to some, it does give an indication of the underlying principle behind the concept of a profession – service.

Traditionally, professionals had a personal relationship with individual members of the community. While there was an acknowledgment that the professional was entitled to earn a living from the pursuit of the profession, the concept of service to the community was predominant. But this service was not all one way. In return, society accorded its professionals respect, a currency different to financial reward but nonetheless valuable.

However, it was not just the personal relationships which built the strength of the professions – it was also the strength of their professional bodies that added to their aura. If service to the community was a key identifier of a profession, then so too was membership of a professional group, which claimed expert knowledge and thereby the ability to regulate membership of the profession, both at the time of admission and on a continuing basis.

This view of the professions, and the law in particular, is idealised at best and in danger of being irrelevant to modern Western society. Lawyers may not have been in it for the money, but there is no doubt that it was a welcome addendum. The respect that was a by-product of the position translated to power and the ability to influence government. Lawyers have, by and large, ministered to the needs of those clients who could afford their services.

The idealised view, based in part on the Dickensian view of lawyers as “honourable gentlemen”, called for respect and deference not only at a personal level, but also as a group. The ability to self-regulate was justified as an essential element of a profession and an advantage to society, rather than simply a means of protecting a monopoly. Attempts to remove this right were decried.

Society certainly has changed from that time. One simple indication of that change is that the legal profession is no longer limited to “gentlemen” – more than 50 per cent of people currently entering the profession are female. Such a thought would no doubt have been beyond the comprehension of, and indeed anathema to, the “honourable gentlemen” of the past, but such fundamental changes to society cannot occur without any review of past practice. This is not to suggest that women practising law might not be treated as “honorary honourable gentlemen”, which is effectively the approach adopted, but rather that change to societal values may indeed call for change in the professions that claim to serve society. Reliance on the “honourable gentlemen” of whichever sex to do the right thing begins to appear as a justification for self-regulation simply on the basis of “the chap defence” – he’s a good chap, he wouldn’t do the wrong thing.[1]

Ethics

Given that the law certainly qualifies to be counted as a profession, the next task is to attempt to define “legal ethics”. A simplistic definition might start with reference to the rules which govern the profession, but any examination of the relationship between the legal profession and society that is based on rules alone may lead to a structure dependent on rules, but lacking in substance. Similar to a house of cards, once upset, it comes tumbling down.

An analysis that is not rule-based may allow for an understanding of legal ethics that provides both form and substance. No doubt rules and regulations will be necessary to provide the form for the substance, but a theory based on rules alone will not suffice. The rules and regulations that bind lawyers are merely signposts on the ethical highway. They warn of approaching danger and provide a guide back to the straight and narrow, but it is impossible for rules to provide a crash barrier for the entire length of the ethical highway traversed during the course of a professional career. The lawyer must be able to steer a course between the signposts and that ability will only come from an understanding of the route and a desire to complete the journey.

Such an understanding may come from an analysis of legal ethics as based on virtue ethics. Given the changes and development of philosophical theory over many centuries, it may appear incongruous to turn to a theory fundamentally based on the thoughts of Aristotle more than 2000 years ago. And indeed it may be that to describe virtue ethics as a theory is a misnomer, as the theory is really based on an appreciation of the practical outcome of moral judgment and involves a process of perpetual assessment and reflection on action designed to achieve “flourishing” or “practical wisdom”.

Rule-based theories based on obligation or outcome lead to the creation of small moral values. Obeying the rules is applauded, achieving desired outcomes is admired. But such achievements can come from simple technical expertise and do not require, or more particularly enhance, self-growth or “practical wisdom”. Rules can be taught, but intrinsic values must be learned.

William Sullivan[2] seeks to relate the Artistotelian principle to the Protestant work ethic that forms an important basis of Western cultures. This ethic promoted the virtue of a vocation that not only achieved personal gratification and reward, but could also be regarded as a socially useful activity. Thus he suggests that “(P)rofessional integrity is the outgrowth of the ethic of vocation” and he refers to “the dependence of the professional’s individual human capital upon the social capital of the professional community”.

Thus virtue is an acquired skill quite separate and distinct from the technical skills acquired and practised by the lawyer, and virtue is a lifelong attribute that only survives if constantly reassessed in the context of legal practice. Just as all humans have the innate ability to learn to read and write, they need to be taught in a practical environment during their childhood. On maturity, we are regarded as autonomous individuals responsible for our own actions and will ordinarily use our language skills to advance individual flourishing, which will involve both use and development of those skills. So too the ability to act virtuously is innate. Basic human virtues are taught in childhood and basic legal virtues are taught in the early years of legal training. Thereafter the lawyer is expected to use those virtues to advance personal flourishing, which will require constant development to achieve “practical wisdom”.

But just as some individuals may never be able to fully engage their innate language skills (perhaps even remaining illiterate), some lawyers will slip through the gaps and not fully engage their virtues. Thus, inevitably, there will be some non-virtuous lawyers and for these there are the rules and regulations. It may well be that a non-virtuous lawyer may even succeed in remaining within those rules or regulations, or at least within the wide ambit of those rules and regulations as interpreted by the lawyer. But without some sense of virtue, of innate right and wrong, the lawyer will not achieve personal flourishing, but rather achieve, at best, some level of technical competence and, at worst, transgress the rules to such an extent as to attract disciplinary attention. Conversely, the pursuit of a profession in a virtuous manner will lead to personal flourishing and public good.

The role of lawyers

If it is accepted that the role of lawyers generally is to serve society, how is that role balanced with the competing obligation to serve the lawyer’s client?

Few lawyers can claim to serve only society. Those working for the government, or voluntary bodies or providing free legal assistance might be close to serving society, but even in such cases those lawyers will still have an individual client, be it the government, the organisation or the defendant, and will owe duties to that client. This conflict is often regarded by non-lawyers as the greatest internal conflict that a lawyer faces, but lawyers, while acknowledging the conflict, do not generally regard it as a source of great concern. This is because lawyers know, or ought to know, that there is a simple and straightforward solution to this conflict – if the interests of the client conflict with the interests of the Court (as the representative of society) then the interests of the Court must prevail.

In this way a lawyer is free and obliged to represent a client who has a dispute with society. The lawyer is not breaching the lawyer’s duty to society by representing the transgressor, but rather supporting one of society’s values by ensuring that the individual is dealt with fairly. Society has a multitude of values, some represented by laws, others by custom, and the role of the lawyer in this situation is to uphold one of those core values. But that is not to say that the lawyer would be entitled to allow the lawyer’s duties to the client to predominate. Representation of the client must be within the bounds recognised by the law. Should the client seek to step outside those bounds, for instance by lying to the Court, then the lawyer, if unable to convince the client not to follow that course, must cease to act for the client. Thus the lawyer in such a situation faces no real dilemma, the correct path is clear and while there are always questions of degree in such matters, the ethical answer is that the duty to the Court must prevail. Individual lawyers may, from time to time, fail to honour this principle, but such failures in no way undermine the fundamental principle.

This is also the lawyer’s answer to the charge that the lawyer has assisted a guilty person to escape punishment. Relying on a technicality to defeat a charge is often regarded by members of the public as unethical, but it is in fact part of the lawyer’s duty to the Court and society to ensure that the law is applied equally to all citizens. That society values justice may be supported from a utilitarian viewpoint as likely to achieve the greatest good for the greatest number and from a social contract view as one of the terms of the contract.

But few lawyers actually practise in the area of the law where they are defending the rights of one citizen against the power of the state. By far, the bulk of lawyers represent their clients in far more mundane matters, such as commercial transactions, compensation claims, family law disputes and that most mundane of legal machinations, the common or garden conveyancing transaction. Such matters rarely thrust lawyers into the jaws of an ethical dilemma requiring them to balance the competing interest of the client against those of society, as represented by the Court.

Ethical dilemmas, nevertheless, abound in such transactions – they are simply of a more subtle and therefore dangerous variety.

The simple choice between the client and the Court is not available to resolve such disputes, as the choice is usually between the lawyer and the client, or between two clients.

Adopting a mode of practice that recognises that the mere potential for a conflict to arise between the interests of the lawyer and the interests of a client, or the related conflict between two clients, should be the aim of all lawyers. And it is here that the limitation of reliance on rules and regulations can best be seen. Lawyers are required to avoid conflicts of interests. Both legislation and practice rules warn lawyers of the dangers. But these rules and regulations allow a lawyer to continue to act if there is a mere potential (but no actual) conflict, provided that the lawyer has informed the client of the potential conflict and obtained the client’s consent to act. The final decision as to the nature of the conflict is therefore left to the lawyer, and unless the lawyer has a well-developed ethical sense, the potential to miss the signs and run off the ethical highway is high. It is not enough to simply obey the rules, as the rules do not provide all the answers. The lawyer must develop an appreciation of the practical outcome of moral judgment and engage in a process of perpetual assessment and reflection on action designed to achieve “flourishing” or “practical wisdom”.

St James Ethics Centre executive director Dr Simon Longstaff[3] describes the view of ethics that merely requires compliance with the rules as a positivist strain of legal ethics and a “thin” conception of the lawyer’s duty, leading to the lawyer being regarded as a “gun for hire”. He contrasts that with a view which acknowledges an obligation to society as a whole, a “thick” conception of the lawyer’s duty. Enlivening of this duty will require the lawyer to forego the interests of the client in favour of the interests of the wider society, in these cases not represented by the Court, but simply society in its widest context.

Again this view appears most relevant in that romantic conception of the role of the lawyer as the defender of the client, but it is equally applicable to the more mundane and true to life environment. While conflicts of interest may be the most significant dilemma facing most lawyers, there are still many others that, although they may not be as prevalent as the conflict problem, nevertheless arise regularly.

In commercial transactions, significant advantage may be gained for a client by pursuing a course of conduct designed to delay proceedings. In family disputes, advantage may be gained for a client by manipulation of other family members, particularly children, and in compensation claims exaggeration of symptoms may produce a favourable outcome for the client.

While these scenarios may or may not involve courts, Dr Longstaff is of the view that a “thick” view of ethics will allow the lawyer to acknowledge an obligation to society as a whole, whether or not represented by the Court, and adopt an ethical approach which will see the interests of the client tempered by the interests of society.

The ethical lawyer

An individual lawyer who aspires to fulfil the proper role of a lawyer will, while respecting the rights of the client and working towards advancing those rights, at the same time acknowledge that should those rights come into conflict with the interests of “society”, the lawyer must postpone the client’s interests in favour of the greater good. In this way the lawyer truly fulfils the role of a professional and serves both the individual client and society.

Technical skill or vocational excellence will be valuable attributes in such a lawyer but, of themselves, insufficient to fulfil the role. Additionally, the lawyer must have “practical wisdom” so as to be able to recognise when the interests of the client come into conflict with the interests of society. This will necessitate the lawyer informing the client of the conflict and trying to find an acceptable ethical resolution but, if the client will not alter those instructions, inevitably require that the lawyer cease to represent that client. Such a decision will usually involve the lawyer continuing to respect the client’s confidences but may, in exceptional circumstances, even require the lawyer to take action that will involve disclosure of those confidences. Such circumstances will usually only arise if a third party is likely to face physical danger as a result of the client proceeding unhindered. It is entirely inappropriate for a lawyer to seek to adopt an amoral approach by simply adopting the morals (ethics) of the client and claiming profess-ional immunity.

It is no doubt possible for a lawyer to seek satisfaction from vocational excellence. Those lawyers who work in large firms that reward professional excellence, or in corporations who employ on the basis of professional excellence will clearly face significant pressure to develop high level technical skills, which may, or may not, lead to professional satisfaction. Those who chose to work in a different vocational role, such as suburban or country lawyers, are also required to exercise technical skill and may also gain satisfaction from the application of those skills.

However, reliance on personal satisfaction from achievements dependent on technical skill, notwithstanding that such skill can lead to substantial physical rewards, will rarely fulfil a lawyer in the long term. The profession is rife with anecdotes of burnout, among both the senior and junior members of the profession. Such people know that there must be more to their profession than mere physical reward, but their circumstances have removed them from their intrinsic connection with society – they complain of disconnection. “The pursuit of a shared good is what makes the practice of law intrinsically worthwhile, not just instrumentally rewarding”.[4]

Rarely will lawyers face significant ethical dilemmas, but finding the answers when those dilemmas inevitably arise will not come from technical skill. The rules and regulations may provide signposts, but ultimately the lawyer will run off the ethical highway unless the lawyer has developed an appreciation of moral judgment by a process of perpetual assessment and reflection based on practical wisdom.

From the above, it may be concluded that the interests of the individual lawyer and society are indeed coexistent, and both are served by ethical practice. I conclude by adopting the words of Mr Sullivan,[5] “A life in the law is, necessarily, an adventure in applied ethics”.


RUSSELL COCKS practised as a suburban lawyer for 13 years, worked at the Law Institute for four years and has lectured at Deakin University for 10 years, initially in property law and now also in legal practice and ethics. He is the author of the Law Institute of Victoria Ethics Handbook: Questions and answers. This article arose out of a paper presented to The Greek Conference on Ethics in May 2004.


[1] Coady, CAJ in “On regarding ethics” in Coady, M and Bloch, S, Codes of Ethics and the Professions, 1996, MUP.

[2] Sullivan, WM (ed), Work and Integrity, Harper 1995.

[3] Longstaff, Dr S in Miller, S, The Lawyer’s Duty to the Community.

[4] Hoffmaster, J, quoted in Ross, S, Ethics, 1997, Butterworths.

[5] Note 2 above.

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