Legal Ethics. Not an Oxymoron.
“Law gives protection against uncontrolled power, by money, guns, violence and brute force. We are lucky to live in a country with the rule of law. But we must safeguard our type of law from erosion and uphold judicial independence when it is under attack as a protection for everyone.”
-Retired High Court Justice Michael Kirby
Let’s start with a (very lawyerly) disclaimer: this post is not a lecture on Aristotlian virtue, the ethics of Kant or Nietzsche’s supermen theories. It will not serve as a finger-wagging reprimand to the legal profession – its practice and culture. Such ground is, theoretically, the well-ploughed domain of any given legal ethics class.
Why? In a free, Western democracy like Australia and many other countries aspire to be, the law does not impose overarching, strict moral codes. The law does set baseline standards, often influenced by religion or moral philosophers: thou shalt not kill, injure, steal or betray professional relationships of trust and confidence. Free speech and freedom, equality and opportunity – all will be respected.
Such essential values have been recognised as rights and responsibilities in instruments such as the Universal Declaration of Human Rights and its attendant treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as countless human rights statutes, treaties and declarations set forth and signed the world over.
Beyond these, the law in a free, Western democracy leaves much room for the exercise of one’s own moral values and beliefs, many of which may be subjectively judged by the standards of others as being immoral, unethical or against religion. Yet the law as we know it leaves space for the exercise of free will. Your free will. Your choices.
“A lawyer without ethics is like a psychopath with a machine gun.” -Associate Professor Adrian Evans, Monash University
Professional Rules & Ethics in Law Schools
While there does exist a set of professional conduct rules applicable to solicitors and barristers in every Australian jurisdiction – the practitioner’s foremost duty to the court rather than the client, the importance of avoiding conflicts of interest and maintaining confidentiality – these mark only the minimum standards and fail to account for the fact that the majority of ethical decisions made by lawyers in practic e occur daily as a series of “many small judgments” which one objectively hopes are “sensible” or “good”.
This has led to an emphasis in law schools towards a more holistic, comprehensive approach to learning ethics. However, in the end, ethics is not a self-contained one-semester class. It is a question of personal morality and daily decision-making. It is the decision to doctor your billable hours, or running a defence you know to be inconsistent with the full set of facts before you, or deliberate drawing out a litigation to achieve some tactical advantage.
It is behaviour that may not strictly be illegal, but may (or may not) cause you to lose sleep at night. It is the grey line in the sand. It is your nagging conscience. Of course, such a standard will be subjective, but it will determine the kind of lawyer you choose to be and perhaps the areas of law in which you decide to practise.
“You believe you are better than ‘normal people’ – that you belong in a different category. Normal people might not be able to do everything at once without going mental. Normal people might not be able to do a good job. But you’re a special person with special rules and demands…” -Lisa Pryor
Carol Foreman, 1994
Foreman was a partner and solicitor at one of Australia’s leading national law firms. Accused of falsifying her timesheets and misleading the Family Court of Australia, Foreman faced charges of misconduct before the Legal Profession Admission Board. Foreman, a family law practitioner, levied $600,000 in legal fees for the case in question, employing a team of 12 solicitors and 46 paralegals. While the issue of overcharging was not central to the finding of Foreman’s guilt and being subsequently struck off the roll of practitioners, it did provoke this observation from Justice Michael Kirby (then President of the NSW Court of Appeals):
“Something appears to be seriously wrong in the organisation of the provision of legal services in this community when charges of this order can be contemplated, still less made.”
The Foreman case has now become required reading in law school ethics classes, often the focus of heated debate as to whether Foreman was a indeed a callous corporate lawyer driven only by profit, or a victim of firm culture with set billing thresholds, a woman in a male-dominated profession under immense pressure to mine gold from a traditionally unprofitable area of law. The latter scenario suggests that Foreman was a victim of circumstance, deprived of choice, while the first demonises her as a representative of all that is wrong with the legal profession. From a safe distance, it is certainly easy to pass judgement.
The list, of course, goes on. Consider the infamous ‘document retention policy’ suggested by legal counsel for British American Tobacco – a policy less about retaining documents as it was about shredding them, or cloaking them under professional client-lawyer privilege. The documents in question suggested smoking bore serious detrimental health effects.
It’s a matter of choice.
“At the end of the day, it comes down to your own sense of what is right. A lot of (legal professional) rules are boundaries. We are bound by solicitor’s rules, but your own sense of what is right and wrong is useful. In life, no matter what someone asks you to do, it’s not worth risking your career or reputation if you disagree. If you don’t think it’s the right thing to do. Worst case scenario: I would work for someone else. I think this comes from knowing who you are.” - Kate Gibbons, Minter Ellison Solicitor & NSW Young Lawyers member
It is not impossible to be ethical. Nor is it easy. Patrick J Schiltz, US District Court Judge, Harvard Law graduate, former partner at an American corporate law firm and Professor of Law at Vanderbilt University wrote an essay advisory to law students – the title: ‘On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy and Unethical profession.’ In it, Schiltz describes the profit-hungry nature of American legal practice, a form not far removed from its Australian counterparts – and how such a system by nature compromised the ethics of its players.
Working on the Exxon Valdez case which resulted in a favourable judgment of $5 billion, Schiltz describes feeling that he had “lost my way” in the course of his choices. “We were working constantly. We were under constant pressure. We were constantly feeling guilty about the hardships we were imposing on each other and our children. The life we were leading was not the life we had envisioned. We had strayed from the values with which we were raised.”
So Schiltz made a choice: he left behind the millions, his share as partner from the Exxon Valdez win. Now a professor and a judge, he urges his students to “develop the habit” of acting ethically.
“You need to decide now, while you are still in law school, what kind of lawyer you want to be, and then act as that kind of lawyer would act. Always. Everywhere. In things big and small. Do not take that first step towards being an unethical lawyer. Do not pad your time sheets. Do not tell lies to partners or clients or opposing counsel. Do not misrepresent legal authority to judge. And do not break your promises. And do not do anything else that is contrary to the values you now hold. And finally, when you screw up – as I did, as every lawyer does – pick yourself up, dust yourself off, and try that much harder to develop the habit of acting ethically.”
You have now a clean slate, and the weight of responsibility. You have promise and potential, but both are fleeting.
Sui Generis. A Latin term meaning to be “of his, her or its own kind. Unique.”
Be of your own class. Don’t be, as Lisa Pryor put it, a crazy young lawyer unable to say no. Keep the pilot light ideal of whatever inspired you into studying law – a mad pursuit in itself, given the workload, the competitiveness, the length – and feed it by spending some of your spare time volunteering. Serve the ideals that draw you to study law – in your daily practice as law student and lawyer, and through community work.
Perhaps this all sounds rather quaint against the professional pressures of billable hours, seeking promotion, and mortgage repayments. It is of course, your choice. Ethics, morality, values – all defy a general standard. All fail to fit in a convenient box. Do what lets you sleep at night. Success and other labels, wealth and other products, popularity and other myths – all are transient.
“Law deals with eternal things like justice, fairness and human rights,” said retired Justice Kirby, a person who, as a gay Anglican lawyer and judge in a profession known for its conservatism, seems to embody ‘sui generis.’
Said Kirby: “I will never cease being idealistic and optimistic. And I don’t care who knows it.”
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