THE ETHICAL LAWYER - A WIN/WIN SOLUTION
RUSSELL COCKS
The basic proposition of this paper is to establish that it is the interests of both society as a whole and lawyers as individuals, that lawyers practise ethically.
This will involve a consideration of the role that lawyers play in society, in particular the meaning of the description 'professional', and then a consideration of what it means to act 'ethically'. Having established the constituent elements of 'an ethical lawyer', it will then be necessary to prove that society benefits from ethical legal practice and, finally, that benefits also flow to the individual.
The Professions
The meaning of the word 'profession' in modern Western society is somewhat hazy. It is an appellation appropriated by a plethora of groups and individuals involved in the service industry. Almost any group or individual which touts its services to the consumer seems inclined to adopt the description 'professional' to seek to establish a marketing advantage over its competitors. Starting at 'A' in the Yellow Pages quickly alerts us to the availability of 'Professional Accounting Services' and the existence of 'The Professionals' in the area of real estate sales has almost become a modern icon (or perhaps myth). Yet, whilst 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.
Modern commercial society has simply sequestered the service concept and applied it to the 'service industry'. This has lead to an abundance of what may be described as 'soft professions' - commercially focused groups of individuals who seek to provide a service to society for financial reward. By banding together, these groups seek to enhance society's perception of their service, thereby enhancing their relative position.
Cutting away these soft or quasi-professions, it is possible to identify those groups that have traditionally been regarded as professions. And the key identifier remains the concept of 'service', although with the fundamental distinction that this service is not motivated by the desire for financial reward, but rather by a sense of obligation. Religion, medicine and the law are those callings which have traditionally attracted the description of 'profession' and the very description of 'a calling' indicates that those professionals assume a position of responsibility and obligation in relation to the society which they serve.
Traditionally, professionals had a personal relationship with individual members of the community - they ministered to their congregation, treated their patients and served their clients. But a stronger bond between these professionals and society overlay these personal relationships, bonds represented by icons such as the Bible, the Hippocratic Oath and the symbol of Blind Justice. Whilst there was an acknowledgement that the professional is also 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 very 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 to 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. Thus the professions claimed the absolute ability to self-regulate - only they could recognise the standards needed for admission, and the breaches meriting sanction.
This Dickensian view of the professions, and the law in particular, is both 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 and, some would say, have been the lapdogs of the rich and powerful.
It is no accident that Shakespeare1 suggests "The first thing we do, lets kill all the lawyers" and that in 1673 Moliere could have Monsieur Bonnefroy, the lawyer2, say "When we are confronted with the law's great edifice - majestic, immoveable - there, rising in front of us, across the very path that we, and some distinguished client, may wish to travel - do we run our heads against it? By no means! First we bow, to show our respect, then find our way round, over, or under it."
This 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, such as : "Society in the future may become progressively intolerant of voluntary professional organisations, especially if they are the bulwark of private practice, and yet be oblivious to the truth that in these institutions resides a most precious liberty essential to the health of a civilised society."3
Society in the future, the society we live in now, certainly has changed from the time of this Dickensian view. One simple, but significant, indication of that change is that the legal profession is no longer limited to 'gentlemen' - over 50% 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, and yet such changes to society are meant to occur without any review of past practice. This is not to suggest that women now practicing 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.4
The phrase 'legal ethics' ought not be regarded as the ultimate oxymoron, but equally we cannot idealise the lawyer as a public spirited zealot only interested in achieving justice for the community. Societal pressures, even in Dickensian times, were far more complicated than that, and certainly are no less complicated in modern Western Society.
Ethics
Given that the law certainly qualifies to be counted as profession, the next task is to attempt to define 'legal ethics', accepting that the phrase indeed is not an oxymoron.
As the above discussion suggests that the relationship between the legal profession and society is one based on obligation, it would be reasonable to undertake a deontological analysis. Alternatively, as the law is focussed on outcomes, a teleological analysis, such as one based on utilitarianism, might be appropriate. However both of these approaches may be regarded as fundamentally rule-based, and an analysis that is based on rules may lead to a structure that is dependant on rules, but lacks substance. Similar to a house of cards, once upset, it comes tumbling down. And the lawyer is just the technician to find the weak spot, the vulnerable rule that can be 'distinguished' so that they lawyer is able to, as Monsieur Bonnefroy suggests, 'find our way round, over, or under it'.
Thus an analysis that is not rule-based may allow for an understanding of legal ethics that provides both substance and form. 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 over 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 judgement 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 learnt. Rules are easy to abuse, particularly by an able technician, but virtues resist abuse and stay true.
Sullivan seeks to relate the Artistotlian principle to the Protestant work ethic5 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 practiced by the lawyer, and virtue is a life-long attribute that only survives if constantly re-assessed 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. Upon 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 simply achieve, at best, some level of technical competence and, at worst, transgress the rules to such an extent as to attract disciplinary attention.
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?
Very 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, being 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, whilst acknowledging the conflict, do not generally regard it as a source of great concern. This is because lawyers know that there is a simple and straight forward solution to this conflict - if the interests of the client come into 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, such as a person who has transgressed one of society's laws. 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 whilst 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. Thus the lawyer is on relatively firm philosophical and ethical ground when it can be seen that by upholding the client's rights, the lawyer is at the same time serving the interests of society.
But very few lawyers actually practice in the area of the law where they are defending the rights of one citizen against the power of the State. That may be the romantic view of the law, promoted by the media in television shows as far apart as Perry Mason and The Practice, but that romantic view shares little in common with reality. By far the bulk of lawyers are representing 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 the lawyer into the jaws of an ethical dilemma requiring s/he to balance the competing interest of the client against those of society, as represented by the Court. Ethical dilemmas nevertheless abound on 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, which, in the long run is effectively the same choice as the former, as the lawyer's choice of one client over another will usually be motivated by an assessment of which client is likely to be better for the lawyer in the long run.
It is this issue of conflict of interest which creates the greatest ethical challenge for lawyers. Adopting a mode of practice which 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, is unacceptable ought 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 - the signposts are erected and even illuminated. 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 'practical wisdom' of Aristotle), 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 judgement and engage in a process of perpetual assessment and reflection on action designed to achieve 'flourishing' or 'practical wisdom'.
Longstaff6 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, partly based on a Utilitarian approach, 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. Whilst 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. Whilst rules call for expediency, there are degrees of expediency and the rules may be honoured in the breach. 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. Whilst these scenarios may or may not involve Courts, 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.
In this way the familiar, and easily applied, ethical constraint of subjecting the client's interests to the interests of the Court is extended to justify, and indeed require, the lawyer to subject the client's interests to the interests of society. In this way lawyers can truly claim to be a profession, the hallmark of which is public service. Not only does the profession serve the individual members of society, but it also acknowledges a duty to subject the rights of individual clients to the rights of society as a whole.
The Ethical Lawyer
It may be concluded from this abstract discussion of the role of lawyers in general that an individual lawyer who aspires to fulfil the proper role of a lawyer will, whilst 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 comes into conflict with the interests of society such as to require the lawyer to put those higher interests first. 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 to 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 professional immunity. Such 'role theorist' fail to fulfil their over-riding duty to society and are no different from a 'professional jobber' and fail the test of a true 'professional'.
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. Even at the other end of the vocational scale, the small struggling lawyer working at the suburban or country coalface, will be required to exercise technical skill, even if only to maintain a practice. 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 to duck and weave around some ethical challenges, 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.
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, amongst 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 dis-connection. "The pursuit of a shared good is what makes the practice of law intrinsically worthwhile, not just instrumentally rewarding"7
The technician serves the client and loses touch with society. The interests of the client prevail, society's over-riding interest is ignored. There is no ongoing assessment and reflection, practical wisdom withers. Fulfilment comes in the form of thirty pieces of silver and the lawyer knows that s/he has failed in their ultimate role - to serve society.
By contrast, the lawyer who develops and maintains practical wisdom and thereby acts ethically shares the sense of fulfilment achieved from being part of a profession which honours its fundamental duty - to serve society. Such a lawyer flourishes.
From the above, it may be concluded that the interests of the individual lawyer and society are indeed co-existent, and both are served by ethical practice. I conclude by adopting the words of Sullivan "A life in the law is, necessarily, an adventure in applied ethics."8
NOTES
Russell Cocks is a lecturer in law at Deakin University, Victoria. He is also involved with Ethical Standards at the Law Institute of Victoria
Bibliography
Bennion, Professional Ethics, Knight, 1969
Chadwick, Ethics & the Professions, Avebury, 1994
Coady & Bloch, Codes of Ethics and the Professions, M.U.P., 1996
Davis, Professions, Codes & Ethics, Ashgate, 2002
Goldman, The Moral Foundation of Professional Ethics, Rowman, 1980
Koehn, The Ground of Professional Ethics, Routledge, 1994
Luban, (ed.), The Ethics of Lawyers, Dartmouth, 1994
McDowell. Ethical Conduct and the Professional's Dilemma, Quorum, 1991
Miller (ed.),Professional Ethics, Keon, 1995
Rawls, A Theory of Justice, Clarendon, 1972
Ross, Ethics, Butterworth, 1997
Sullivan (ed.), Work & Integrity, Harper, 1995
Footnotes
1 Henry IV, Act 2
2 The Imaginary Invalid - A Play in Three Acts
3 Lord Butler of Saffron Walden quoted in Bennion F: Professional Ethics
4 Coady, C A J in 'On Regarding Ethics' in Codes of Ethics and the Professions
5 Sullivan (ed) : Work and Integrity
6 Longstaff S in Miller S : The Lawyer's Duty to the Community
7 Hoffmaster J. quoted in Ross S : Ethics
8 Sullivan (ed) : Work and Integrity
Copyright 2004. Greek Legal and Medical Conference