#13087 - Introduction - Ethics

Introduction

Introduction

• Ethics are the moral principles by which we are guided as individuals, and the rules of conduct recognised in a particular profession or area of human life.

  • Moral principles = concerned with distinguishing between behaviour that is good or bad, right or wrong.

  • Ethics v morality = morality is associated with private behaviour whereas ethics is applied to matters of professional behaviour.

Sources of professional behaviour

• The general law: The laws of agency, contract, tort, equity and fiduciary obligations, evidence and the criminal law all govern the conduct of practitioners.

• Statute: Legal Profession Uniform Law Application Act 2014

• Court decisions in disciplinary cases: Superior courts have elaborated standards of professional conduct as an incident of their inherent power to control the conduct of legal practitioners as officers of the court, and in the course of reviewing decisions of professional disciplinary tribunals.

• Professional rules of conduct: Australian Solicitors’ Conduct Rules 2011 (ASCR) and Proposed Legal Profession Conduct Rules: Barristers (LPCRB)

  • Limits of professional standards:

    • Minimal Coverage

    • Conflicting rules

    • Focus on technical rather than substantive matters

    • May sometimes need to be disobeyed

Approaches to Lawyers’ Ethics

Adversarial Advocacy: The traditional conception of legal ethics

• Predominant conception of what lawyer’s role in ethics ought to be in most common law countries.

• It says that a lawyer should advance their client’s partisan interests with the maximum zeal permitted by law.

• Often seen as amoral as the lawyers must disregard other ethical considerations in order to fulfil the proper moral role as advocate for their client.

• AA combines the principle of partisanship and the principle of non-accountability.

  • The principle of partisanship means that the lawyer should do all for the client that the client would do for themselves.

  • The principle of non-accountability follows on from this and says that the lawyer is not morally responsible for either the means or the ends of representation, provided both are lawful.

• This approach is most clearly justified in the case of trial lawyers, especially criminal defence advocates. The adversarial advocate approach is least justifiable for a criminal prosecutor as they should act as ‘ministers of justice’

• Pros:

  • Everyone is entitled to representation

  • Especially important in criminal cases (power imbalance with State)

  • Simple and clear rule

• Parker and Evans suggest that general ethics don’t apply to lawyers, however denial of application of general ethics is contrary to the objective of making the law work fairly and justly as possible (Nahum Mushin)

Limitations of adversarial advocacy

• One criticism is that it prescribes only the barest obligation to the legal framework and is therefore a recipe for sabotage.

  • Individual lawyers and their clients do not have to concern themselves directly with justice or the public interest. This is ethically justified because as long as all the lawyers for all the parties in any action act adversarially in the narrow interests of their own client, it is said that the legal system will make sure that the right outcome ensues.

• Recently, scholars have defended it against this criticism by modifying it. Tim Dare argues that the standard conception of lawyers ethics as requiring adversarial advocacy has been mischaracterised as requiring ‘hyper-zeal’. An obligation of ‘mere-zeal’, rather than hyper zeal can be morally justified on his view.

• Daniel Markovits asserts than in contemporary society much of the institutional structure supporting the role of lawyer as advocate has broke down, such as the self-regulating bar and the self-contained role morality it supported. Nevertheless, he argues that society still needs a legitimate adjudicatory mechanism – therefore needs lawyers to act with integrity through fidelity to their client and being their mouthpiece.

• There are two main alternative ways of thinking about lawyers’ ethics in contrast to the adversarial ideal:

  • Accept that lawyers’ ethics should be defined by their particular role in the adversarial legal system, but define that role differently rom the traditional adversarial advocate approach

  • Abandon role morality for lawyers and argue instead that general ethics should apply to lawyers.

• Cons:

  • Doesn’t work in reality –not a fair contest

  • Can raise the costs and length of litigation

  • May be unnecessary outside criminal law

  • Duty to obey law is vague – lawyers try to get around it

  • Subsumes all other ethical responsibilities – no scope for other considerations

Responsible lawyer (officer of the court and trustee of the legal system)

• The responsible lawyer focuses on the lawyer’s role as an officer of the court and guardian of the legal system. The responsible lawyer is still an advocate for the client, but he or she has an overriding duty to maintain the justice and integrity of the legal system, even against client interests, in the public interests.

• The responsible lawyer focuses on maintaining the institutions of law and justice in their best possible form.

• He or she will not unhesitatingly use loopholes, procedural rules or barely arguable points to frustrate the substance and spirit of the law.

• They see the law as a public profession in which lawyers have a mediating function between the client and the law.

• Lawyers should not be too close to client.

• It stops legal outcomes being skewed in favour of resourceful parties, and undermining the legitimacy of legal institutions. Responsible lawyers will say no to those who are prepared to use their economic power to compromise the integrity of the justice system.

• Personal morals are generally irrelevant. The RL will look to the ethics inherent in their role as officer of the court and in the law itself.

Moral Activism: Agents for Justice with Clients and the Law

• Argue it is not appropriate for lawyers to have a special ethics defined by role at all. Rather they should abide by ordinary ethics.

• Moral activism requires that mainstream consequentialist and deontological theories of ethics and of justice in particular should be applied to legal practice.

• Moral activism encourages lawyers to have their own convictions about what it means to do justice in different circumstances and seek out ways to act out those convictions. They cannot escape moral accountability for their actions by playing the role of adversarial advocate.

• Moral activists argue that lawyers should use legal practice to change people, institutions and the law to make them conform more to general ideals of social and political justice.

• The moral activist lawyers do not see themselves as necessarily confined by a duty to the law where the law is unjust. They see themselves as responsible for doing justice even if that involves changing the law.

• A moral activist lawyer must try to represent only those clients who represent ‘worthy causes’ or those who are the subject of injustice.

• They could be involved in more politicised law reform activities and representation of people and causes to create legal and social change.

• Participations of individuals clients is almost subordinated to the bidder cause such as a class action or constitutional challenge.

• Moral activism has been criticised for neglecting the wisdom of adversarial advocacy – that anyone should be entitled to legal representation and the change to argue their case in court without first having to persuade a lawyer that their case is worthwhile.

Ethics of Care; Relational Lawyering

• Ethics of care is more concerned with personal and relational ethics. It focuses on lawyers’ responsibilities to people, communities and relationships.

• The ethics of care for lawyers focuses on trying to serve the best interests of both clients and others in a holistic way that incorporates moral, emotional and relational dimensions of a problem into the legal solution. It is particularly concerned with preserving or restoring relationships and avoiding harm

• It sees relationships as more important than they institutions of the law or systemic and social ideas of justice and ethics. An ethics of care will discard fundamental rules of professional conduct if circumstances seem to demand it.

• Ethics of care encourages lawyers to take a more holistic view of clients and their problems. Some lawyers even refer clients for advice or counselling for the non-legal aspects of their legal problems.

• Ethics of care emphasises dialogue between lawyers and client and participatory approaches to lawyers. The client-lawyer relationship is built on mutual trust and shared knowledge.

• Also uses a preventative, problem-solving approach.

• The ethics of care suggests that a lawyer’s fundamental moral character carries through from his or her work as a lawyer to his or her relationships and activities outside of work.

Process of ethical reflection and decision-making

1. Be aware of the ethical issues that arise in practice, and of our own values and predispositions;

   • Questions to ask:

     1. Who are the stakeholders?

     2. What interests or values are at stake from the perspective of those stakeholders?

     3. Are there any other principles or values at stake?

     4. Are there any conflicts between the interests or values?

     5. What are your own interests and values (as the lawyer) in this scenario?

     6. What are the different options as to what you (the lawyer) should do or should have done

   • Usually there will be a range of conflict values and interests, suggesting a variety of alternative and contradictory...