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Ethics : Leading by example

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Cite as: (2003) 77(3) LIJ, p.78

Young lawyers need to learn the language of meaningful values.

Although there are many experienced lawyers who ground their ethics in a “faith position” based on their religious beliefs, increasingly neither faith nor agnosticism provides a language of meaningful values for younger lawyers. For many of them, the language of a detailed belief structure has been more-or-less supplanted by the big firm vista of salary, excitement and “the contest” of proving themselves. However, when a justice discussion is pitched at the level of autonomy and fairness much more is possible.

In 1971, American philosopher John Rawls published A Theory of Justice.[1] His thesis is momentous for the legal profession because it offers both a contemporary rationale for and a scheme of belief in justice – “justice as fairness” – that does not depend on an explicit religious position.

Rawls’ major message to lawyers is to reaffirm the primacy of what is apparently “right”, as opposed to what is just efficient practice. The simplicity of his statement is compellingly attractive to law students because of its antidote to post-modern influences on the supposed certainty of the Rule of Law. Some experienced practitioners are resigned to what they see as the effective end to the “justice dream”, but some consultants to the profession are far more confronting.

One law firm management adviser commented recently, in relation to what he sees as a lack of leadership in many law firms:

“Words like communication, respect, integrity, excellence. They sound impressive and possibly resemble your own law firm’s values. If so, you should be concerned. These are the corporate values of Enron, as claimed in its 2000 Annual Report. And they’re absolutely meaningless . . . Firms need to have a set of values that are true and transparent . . . If [they are] not consistent with those of your employees, then you will never win over their hearts and minds.”[2]

Many legal practices are getting on top of their culture without some major event as a negative stimulus. Some firms may see this as essentially a public relations exercise, while others genuinely acknowledge that, while they might continue to make money and be “efficient”, they will struggle to maximise their financial returns or the wellbeing of their employees if they do not succeed in recasting their culture.

In April last year, in the Victorian Supreme Court, Eames J made a number of subsequently reversed findings about the conduct of a former partner of Clayton Utz, in the context of British American Tobacco’s defence of a damages claim by the now deceased Rolah McCabe.[3] The firm announced, after that ruling, that it had appointed former High Court judge Sir Anthony Mason to head a “professional excellence committee” and a decision was taken to cease acting for tobacco companies in personal injuries matters.[4]

When Clayton Utz was comprehensively exonerated in the Court of Appeal,[5] the three appellate judges effectively left open the question – presumably to be argued in the retrial ordered by the Court (or on appeal) – as to whether or not a litigant may legally (and ethically) destroy its own documents, provided that no actual proceedings have been commenced against it in which those documents might be discoverable. In an age of compact digital storage, document retention or destruction is a live moral issue, as well as a legal one. Documents have been the key to resolving conflicts in verbal evidence on countless occasions and were, for example, crucial to Goldberg J’s 1998 seminal decision involving law firm abuse of process.[6] Both legal and moral dimensions ought to be canvassed in at least one of the new McCabe forums.

Large firms, particularly those in the first and second tiers of the profession, provide cultural leadership to the rest of us. Many managing partners are well aware of this and make strenuous efforts to compete with each other in their pro bono activities. Some are attempting “family friendly” workplaces, accompanied by a slow but steady trend to promoting female partners as an affirmative strategy. Yet these cultural moves are, with respect, easy in comparison to confronting the ethics of professionalism versus commercialism.[7] Leading law firms are true leaders only to the extent that this confrontation is occurring. For the moment, there is no more critical demonstration of this imperative than in the conflict between professionalism (the public interest in fair litigation) and commercialism (the morality of advising document destruction).

Post-Enron and HIH, altruism in ethics is a risk-wise strategy[8] and one that stands inside all religious traditions. Each modern subdivision of Rawls’ “justice as fairness” – communication, respect, integrity and excellence – is a virtue in which the community is now even more vitally interested and, on these bases, is now judging our utility and the privilege of relative regulatory independence.

ADRIAN EVANS is associate professor in law at Monash University and former coordinator of Springvale Legal Service Inc.

[1] John Rawls, A Theory of Justice (rev edn), 1999, Harvard University Press.

[2] Simon Tupman, “Food for the soul”, Lawyers Weekly, 22 November 2002, pp10-11 at 11.

[3] McCabe v British American Tobacco [2002] VSC 73.

[4] Bill Pheasant, “Appeal Court to rule on landmark tobacco case”, 6 December 2002, The Australian Financial Review, p14.

[5] British American Tobacco v McCabe [2002] VSCA 197.

[6] White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. Affirmed on appeal in Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773 (FC of Fed Crt).

[7] Professionalism versus commercialism, resolution of the Council of the International Bar Association, adopted 17 September 2000.

[8] John Cain, “Good ethics requires constant vigilance”, (2002) 76(8) LIJ p4.


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