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Ethics: First, do no harm...

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Cite as: (2008) 82(6) LIJ, p. 86

It is time the legal profession investigated the idea of an oath at admission equivalent to the doctors’ Hippocratic oath.

A Hippocratic oath for lawyers? Would it work or remain an empty symbol because lawyers have a vastly different social role to that of the medical profession?

Behind these questions is the deeper concern: do we ask for enough “good” ethics in new lawyers? If the community did ask more of us, would we be less likely, for example, to get involved in nefarious tax schemes or ignore conflicts of interest or look for ways, as prosecutors or government solicitors, to justify coercive questioning of suspected persons?

Could it be that we send the wrong signals (or no signals at all) to prospective lawyers at the point of admission to practice?

This is the moment when a new lawyer stands before the Court and can get a sense of “calling”. Doctors seem to understand the importance of a symbolic but also practical statement. They are constantly inculcated as students with a commitment to, in effect, “do no harm”.

But look at what we offer. The straightforward medico injunction can be compared to the well-meant but quaint oath of office that the Victorian Supreme Court requires of our candidates for admission to legal practice, which reads as follows:

“I swear by Almighty God that I will well and honestly conduct myself in the practice of my profession as a member of the legal profession and as an officer of this honourable court to the best of my knowledge and ability.” 1 And for those who don’t want to swear by Almighty God, they can affirm this oath.

Does the requirement that medicos at least “do no harm” give them a clearer primary instruction about how to practise medicine than does the proper but vague obligation that we impose on novice lawyers at their admission?

Arguably, our oath, in leaving almost everything to a sense of discretion, actually requires nothing much of anyone. Will a “well conducted” lawyer, even a “well and honestly conducted” lawyer, finish their recitation with a burning sense of the priorities they should choose in everyday practice, let alone stressful and politicised practice?

Honesty is all very well, but how does honesty allow tax avoidance but not evasion, or tolerate passive deception, as occurs when defence counsel is silent before a court when a prosecutor omits some aspect of a defendant’s prior convictions?

In the US, after the Abu Ghraib and Guantanamo scandals became public, progressive doctors lamented how military lawyers had so easily conditioned the public to accept torture as a reasonable state response to the possibility of terrorism;2 and in Australia we saw the pursuit of Dr Haneef.3

The dots are beginning to join.

In the UK, a debate is beginning as to whether a change to the wording of lawyers’ commitment on entry to practice might make some difference.

But there is a much bigger debate at stake in the UK and US discussions: the view that change to the admission oath to import a “carer” requirement is needed in order to offset possible overemphasis of “the client at all costs”, especially where the client is the government.

In other words, change might symbolise to the community that law societies are trying to reverse the dominance of the traditional lawyer’s role, that is, as a zealous advocate properly unconcerned with harm, as long as the client is powerfully represented.

If we adapted the Hippocratic oath for our own purposes, it might appear as follows:
“I promise to this Court that I will in all my professional activities, seek first to care and second to do justice, above all other obligations”.

But a change to the oath of office would not be enough. While some candidates could be positively influenced by an oath to behave in a way that does not harm people, at present, all promises made to the Court are effectively symbolic because they are not intended to be specifically enforced by anyone.4

With due respect to the Court, the introduction of any new oath or affirmation would actually highlight the superficial nature of the obligation unless a breach became a ground for a misconduct prosecution under the Legal Profession Act 2004.5

Let’s consider reform to the oath of office, prioritising care and justice, and do it the justice it deserves by making a revised promise enforceable.

ADRIAN EVANS is associate professor in law and convener of legal practice programs at Monash University.

  1. Supreme Court Rules, Rules of Procedure in Miscellaneous Civil Proceedings, r14.04(2).
  2. See, for example, Physicians for Social Responsibility, From the doctors to the lawyers, http://www.ragingblog.com/Political_Rage/From_The_Doctors_To_The_Lawyers – accessed 31 March 2008.
  3. A Evans, “Justice before rules”, April 2008 LIJ, p76.
  4. The oath taken at admission is, in practice, seen as of symbolic value only, as evidenced by the fact that any disciplinary proceedings brought against practitioners are commenced having regard to principles of misconduct or unsatisfactory professional conduct under common law, statute or regulation, not for breach of a commitment given to the Court.
  5. While courts do criticise lawyers and do have the capacity to discipline them under a general power of supervision of officers of the Court (see, for example, Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248), it is almost inconceivable that the Supreme Court or any other Australian court has sufficient will or resources to routinely monitor breaches of the admission oath with a view to periodic parades of recalcitrant practitioners before the Bar for disciplinary purposes.

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