Assessing Lawyers' Ethics: A Practitioners' Guide

Assessing Lawyers’ Ethics A Practitioners’ Guide Many legal practitioners operate in an environment of seemingly endles...

Author: Adrian Evans

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Assessing Lawyers’ Ethics A Practitioners’ Guide Many legal practitioners operate in an environment of seemingly endless ethical challenges, and against a backdrop of diminishing public opinion about their morality. Based on extensive research, Assessing Lawyers’ Ethics argues that lawyers’ individual ethics can be assessed and measured in realistic frameworks. When this assessment takes place, legal practitioners are more likely to demonstrate better ethical behaviour as a result of their increased awareness of their own choices. Assessing Lawyers’ Ethics advocates a variety of peer-administered testing mechanisms that have the potential to reverse damaging behaviours within the legal profession. It provides prototype techniques, questions and assessments that can be modified to suit different legal cultures. These will help the profession regain the initiative in ethical business practice, halt the decline in firms’ reputations and reduce the risk of state-sponsored regulatory intervention. Adrian Evans is Associate Dean (Staff) in the Faculty of Law at Monash Univer-

sity, and co-Chair of the International Bar Association’s Professional Ethics Committee. He has taught and practised law and consulted in clinical and practical legal education for thirty years. He was Coordinator of Springvale Monash Legal Service Inc., Australia’s largest clinical legal education site, from 1988–2000.

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For Maria, Hugh, Dan, James and Angus

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Assessing Lawyers’ Ethics A Practitioners’ Guide Adrian Evans

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cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ ao Paulo, Delhi, Dubai, Tokyo, Mexico City

Cambridge University Press 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521764223 c Adrian Evans 2011 This publication is copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Edited by Averil Lewis Cover design by Rob Cowpe Typeset by Aptara Corp. Printed in China by Printplus Co. Ltd. A catalogue record for this publication is available from the British Library National Library of Australia Cataloguing in Publication data Evans, Adrian Hellier. Assessing lawyers’ ethics : a practitioners’ guide / Adrian Evans. 9780521764223 (pbk.) Includes index. Legal ethics – Australia 174.30994 ISBN 978-0-521-76422-3 Paperback Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 E-mail: [email protected] Reproduction and communication for other purposes Except as permitted under the Act (for example a fair dealing for the purposes of study, research, criticism or review) no part of this publication may be reproduced, stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission. All inquiries should be made to the publisher at the address above. Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

Preface page ix List of figures xi Acknowledgements xii 1

An opportunity for law societies 1 1.1 Professionalism versus commercialism: An opportunity for law societies 1 1.2 Standing aside from self-interest 6 1.3 Ethics at the centre of professionalism 10 1.4 Younger lawyers’ disconnection: Older lawyers’ denial 14 1.5 Ethics assessments as ‘central value propositions’ 16 1.6 Preventing public intervention 18

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Ethical failures, research and core qualities 20 2.1 Education without assessment is wasted effort 20 2.2 Representative Australian cases of ethical dysfunction 21 2.3 North American experience: Over-zealous and over-dependent 2.4 Conflicting loyalties inside large UK and US firms 34 2.5 Research into lawyers’ ethics 38 2.6 Core qualities of professional activity 48

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Understanding ethical methods and types 62 3.1 Awareness of ethical issues 62 3.2 Ethical approaches or methods 64 3.3 Lawyers’ ethical types 72 3.4 Strengths and weaknesses of the dominant approach to legal ethics 75 3.5 Ethical complexity 81 3.6 Ethical complexity and moral courage: The requirement to judge 87 3.7 From virtue to courage 91

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Mechanisms to offset business pressure on legal ethics 92 4.1 Virtuous lawyers as acute businessmen and women 92 4.2 Information barriers as paradigms of ethics versus business 93

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CONTENTS

4.3 4.4 4.5 4.6 4.7 4.8 4.9

The apparent conflict between law as a profession or as a business 95 Connecting personal values to ethical consciousness 98 Testing lawyers’ competence, and indirectly their ethics 101 Institutional structures in support of individuals’ ethics: Regulation of incorporated legal practices 115 The credibility of legal risk management 116 Post-admission training in competence and ethics: Not making enough progress 119 The need for practitioner opinion 124

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Discovering practitioners’ opinions about ethics assessment and psychological testing for integrity 126 5.1 Why consider practitioners’ views? 126 5.2 Quantitative ranking of legal professionalism (ethics) issues 128 5.3 Practitioners’ concerns for professionalism 131 5.4 Conclusion to concerns for professionalism 135 5.5 The climate for psychological testing for honesty and integrity 136 5.6 Significance of studies of lawyer attributes and personality 138 5.7 Assessing psychological health 142 5.8 Unravelling honesty and dishonesty 147 5.9 Assessing trustworthiness and integrity 150 5.10 Psychological testing for integrity 152 5.11 Recommendations: Assessing psychological preparedness for legal practice 159 5.12 Possible questions for practitioners about trust and integrity issues 160

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Developing character: Disciplinary histories and clients’ assessments 163 6.1 The relevance of the past 163 6.2 Disclosable prior offences in Victoria 165 6.3 Can clients fairly assess their lawyers’ ethics? 172 6.4 Prior large-scale surveys of clients 173 6.5 Client satisfaction as an indicator of ‘quality’ 173 6.6 Client rating of interpersonal skills and accountability 176 6.7 Client file audits 180 6.8 Opinions of corporate clients 184 6.9 Usefulness of file audits 185 6.10 Recommendations: Developing character through disciplinary histories and client opinion 185

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Measuring awareness of values and ethics 188 7.1 Towards assessment of lawyers’ ethics 188 7.2 Being aware of (personal) values and emotions 191 7.3 Research assessments of ethics and ‘complex judgment’

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CONTENTS

7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 8

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The Melbourne Study: Lawyers’ awareness of values and ethics 203 Awareness promotes intentionality 207 Measuring a lawyer’s preference for an ethical type 209 Summary methodology for scale development 212 Implications for a comprehensive scale for assessing lawyers’ ethics 213 Assessing ethics through peer interview 214 Template example of a peer interview assessing lawyers’ ethics 218 Accumulating assessment ratings to produce a composite rating or index 220 Consequences of an inadequate assessment rating 221 Recommendations: Achieving and sustaining lawyers’ ethics 223

Entrenching ethics assessment 225 8.1 Improvements, not solutions 225 8.2 The Melbourne Study and CPD 228 8.3 Evidence for the effect of CLE 230 8.4 Continuing opportunities for law societies 231 8.5 The cost benefits of ethics assessment 234 8.6 Overall recommendations 236

Appendix A Research Methods: The Melbourne Study 240 Appendix B Awareness of ethical type: Detailed methodology for scale development 250 Appendix C Prototype scale of preference for legal ethical type 254 Index 257

Preface

Effective encouragement of lawyers’ ethical behaviour is important, not just to the basic functionality of the legal system, but also to public confidence in its operation. The legal profession acknowledges and to some degree compensates the community for lawyers’ mistakes – that is, negligence – but our moral failures as lawyers are imperfectly anticipated and far more damaging. In Australia, recent examples of flawed behaviour include notorious cases of excessive adversarialism, particularly in the abuse of legal process, in efforts to evade payment of compensation to injured persons via document destruction and to hide corporate bribes paid to Saddam Hussein’s former Iraqi regime. Internationally, confidence in lawyers’ probity is now so eroded that courts are increasingly wary of automatic reliance on their integrity. But this scrutiny cannot and must not lead us to deny our vulnerability or, at the other extreme, lose our self-confidence. More than ever, ethical legal practitioners are essential to public confidence in the complex governance of modern societies. And the prospects for ‘inoculating’ lawyers to improve behaviour are promising. While external regulators’ scrutiny cannot often identify our dishonest colleagues in advance of their misdeeds, the far larger problem of ethics apathy or oversimplification can be tackled before damage becomes irreversible. Our law societies and bar associations can approach colleagues’ confusion and even ignorance of ethics by pre-emptively assessing and periodically reassessing their ethical sophistication in the interests of the community, the economy and especially, ourselves. This book seeks to guide practitioners through the insights of several disciplines in relation to assessment, and explains and reports on new empirical research as to what practising lawyers might be willing to accept by way of preventative ethical initiatives, in the interests of improving collective behaviour. The prize may be a reinvigorated self-confidence in the utility of the legal profession in capitalist societies not just as a service industry sector, but more importantly as a vital control on the exercise of social and economic power and the wealth it controls. ∗∗∗ I am very grateful to Professors Graeme Hodge (Director of the Centre for Regulatory Studies, Faculty of Law, Monash University) and Stephen Parker (ViceChancellor, the University of Canberra) who have carefully read and commented on previous incarnations of various parts of this book. Professor Hodge has in particular expended much time and thought in advising on all stages of this exercise ix

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PREFACE

and his patience, dedication and energy for that task, especially in commenting on draft chapters, have been invaluable. I also wish to thank Associate Professor Mary Anne Noone of the Department of Law and Legal Studies of La Trobe University, Judith Dickson, Director, Continuing Professional Development, Leo Cussen Institute, Melbourne and Susan Campbell AM, formerly Professorial Fellow of the Faculty of Law, Monash University, for their readiness to comment promptly on the suitability of a series of propositions about legal professionalism. Mr Michael Brett-Young, Chief Executive of the Law Institute of Victoria, has been very encouraging of the whole enterprise while Dr Barry Rogers and Ray Elliott, both practising psychologists, and Associate Professor Helen Forgasz, Associate Dean of Education (Clayton Campus) at Monash University, have been unstinting in their willingness to advise and comment on technical aspects of psychological testing processes. Professor Stephen Barkoczy, of the Faculty of Law at Monash University, Jenny Cerins, a friend and former colleague at Springvale Legal Service and my partner, Maria Bohan, have also provided much valued commentary on the text as a whole and for that I am most grateful. Finally, it goes without saying that Maria is the person to whom I dedicate this work. Many years of nights and weekends have not been spent together, as we both would have wished, because of the need to attend to this research and bring it to fruition. None of this would have been possible without Maria’s active support, love and forbearance. Adrian Evans Melbourne, May 2010.

List of figures

1.1 Willingness to overcharge page 14 2.1 Proportion of ‘yes’ responses in five chosen scenarios 39 2.2 Percentage of male and female responses to scenarios in years 1–3 42 2.3 Percentage responses by ethics/non-ethics groups to scenarios in years 1–3 44 3.1 The virtue arc 71 3.2 Interrelating legal ethical types 74 3.3 Example of competing ethical priorities 86 5.1 Respondents’ views as to the relative importance of elements of professionalism 129 5.2 Tree display of concerns for professionalism 132 5.3 Tree display of psychological testing for honesty and integrity 155 6.1 Tree display of relevance of disciplinary history 168 6.2 Tree display of client rating of interpersonal skills and accountability 6.3 Tree display of client file audits 181 7.1 Tree display of awareness of values and ethics 205

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Acknowledgements

Earlier versions of parts of this book were submitted for the degree of Doctor of Philosophy at Monash University in 2007, entitled ‘An Analysis of the Elements of Legal Professionalism: Assessing and Enhancing Lawyers’ Professional Behaviour.’ Material from the Australian Lawyers’ Values Study used in this book has been previously published in Adrian Evans and Josephine Palermo, ‘Australian Law Students’ Perceptions of their Values: Interim Results in the First Year – 2001 – of a Three Year Empirical Assessment’ (2002) 5 Legal Ethics 103–29; Adrian Evans and Josephine Palermo. ‘Zero Impact: Are Law Students Values Affected by Law School?’ (2005) 8 Legal Ethics 240; Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill Towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252.

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1 An opportunity for law societies

1.1 Professionalism versus commercialism: An opportunity for law societies ‘Professionalism versus commercialism’ (as famously identified by the International Bar Association)1 sums up a central struggle within legal practice. If lawyers are to serve justice consistently and with open eyes, it can be hard to say ‘no’ to some commercial opportunities and some clients. It is not a new struggle. Individual lawyers have always had to identify on a daily basis what is ethical and decline to meet some clients’ demands. Many, probably most, succeed in this role, but in recent years major cases involving everything from document destruction to money laundering and deceit of the United Nations have occurred against a background of demanding corporate interests. In the process, negative public and especially judicial opinion about lawyers’ ethics has been galvanised. Response to the perceived decline in professional standards has been strongest in the United States, followed closely by the United Kingdom. Rhode for example, suggests US Bar leaders should just use the disciplinary process routinely, without bothering too much about constant ‘professionalism initiatives’.2 Reflecting frustration with unethical behaviour, Rhode has sounded almost at the point of discarding ethics as a bar association goal, for what she sees as the major public concern: access to justice.3

1 International Bar Association, Resolution on Professionalism versus Commercialism, adopted September 2000, <www.ibanet.org/Document/Default.aspx?DocumentUid=d6fb6535–32e0–4fb1-a669– 91edc9586f56> at 3 March 2009. 2 Deborah Rhode, ‘Defining the Challenges of Professionalism: Access to Law and Accountability of Lawyers’, (2003) 54 South Carolina Law Review 889, 892. 3 ibid.

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ASSESSING LAWYERS’ ETHICS

Despite apparent good intentions and successive well-regarded reports over the last 20 years, there have been no really effective campaigns by the profession to pre-emptively develop and sustain members’ ethics. Such a need is now urgent and cannot be left entirely to the traditional fixers: law schools. Ethics assessment is the missing ingredient in such efforts because it involves accountability for ethical consciousness, something that has always been missing in the professionalism versus commercialism debate. Lawyers’ competence has been extensively examined because it is a baseline element of professionalism and is relatively easy to address, but ethics is not easy to define let alone assess, despite the terrible consequences of bad behaviour for both lawyers and clients. Ethics assessment has been ignored or left in the ‘too hard’ basket for too long and is now overdue for major attention. Careful and conservative assessment of ethics also offers an opportunity to law societies and bar associations to improve their members’ attitudes in a manner that will pre-empt regulators’ less empathetic scrutiny. There is much at stake here. Community confidence in the legal system is at least partly influenced by their lawyers’ behaviour, which can powerfully facilitate or retard global commerce. Lawyers’ collective contribution to economic activity is enormous and so, therefore, is their influence. Value-added contributions to the relatively small Australian economy by legal practices and other organisations in 2007–08 was AUS$11billion,4 as compared to UK legal services for 2004 of £Stg14.028 billion5 and US legal services which are estimated to generate US$180 billion annually in revenue.6 All professionals associated with making and increasing wealth are under scrutiny, not just lawyers, but lawyers’ influence may put them in a special category. The rolling 2008–09 global financial crises have encouraged suspicion of economists, financial planners, accountants, actuaries and the like, even though many if not most of these practitioners were powerless to prevent the losses. Yet lawyers were and are in a special position because of their broad ‘deal-making’ role. They sign off on everything. Their professionalism and sense of separation remains a critical issue in modern economies because at key points in facilitating wealth creation, and also later when that wealth is lost, their behaviour is pivotal to outcomes. If some lawyers choose commercial priorities and behave poorly in these hard cases, all lawyers’ self-esteem can suffer with them. Lawyers’ independence then is vital, but their own corporate behaviours now also respond strongly to these economic cycles, so much so that commercially 4 Australian Bureau of Statistics, at <www.abs.gov.au/AUSSTATS/[email protected]/Lookup/8667.0Explanatory% 20Notes12007–08?OpenDocument> at 21 December 2009. Industry value added (IVA) statistics measure the contribution made by businesses to gross domestic product (GDP). 5 Input-Output Analyses 2004, United Kingdom National Statistics, 2006 edition, Industry 109, Table 1.51, p 64. Note that the Law Society of England and Wales estimates gross fees earned in 2008 by solicitors’ practices alone at £Stg19.304 billion. Personal communication with Law Society Research Unit, 29 July 2009. 6 Email from Amy Cole, Research and Markets Ltd, 26 June 2009. See <www.researchandmarkets.com/ product/4d8fla/legal services> at 26 June 2009. See also US Census Bureau, 2002 Service Annual Survey: Professional, Scientific and Technical Services, at <www.census.gov/Press-Release/www/releases/archives/ economic surveys/001658.html> at 3 March 2009.

AN OPPORTUNITY FOR LAW SOCIETIES

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prominent lawyers can often be identified far more readily from their business priorities than for their ethical credentials. Websites of the most influential law firms in all jurisdictions display concern for every commercial and client priority possible, but not for ethics. And attempts to identify any firm on the basis of a cyber-ethical profile are unsuccessful. If these lawyers’ own drivers are mainly commercial, the question is naturally asked: can they (psychologically) encourage at the critical time any other priority in those who pay them and upon whom they are dependent? Fortunately, there are many lawyers in many firms who are interested in ethical accountability. Many heads of legal practices are privately understanding and supportive of an independence of spirit and purpose, although their roles hamstring them. Their admirable personal priorities and reputations positively influence a few around them or inside a partners’ meeting or a client’s boardroom, but client confidentiality means that they can offer little case-specific encouragement to law students or provide much in the way of convincing public examples so that many lawyers constantly struggle for their ethical identity. Confidentiality is a key ethical priority, but it keeps secret good deals and bad alike, unless a client consents to disclosure. Since ‘deal making’ is advertised widely, but not of course ‘deal breaking’, the public does not know the cost to lawyers who insist on an ethical position that might ruin a deal. Crucially then, many other lawyers do not hear of their ethical models. If individual lawyers are constrained about their public positions on specific ethics issues and their law firms even more so, the same need not be true of their professional representatives who could act decisively if the case is well enough made. This book is addressed to law societies and bar associations as lawyers’ representatives; but not so much to the representative professional organisation as to the representative role of that organisation. Representative and regulatory roles are distinguished in this book because in an increasing number of jurisdictions those roles are separated. Representative associations – which for convenience are termed ‘law societies’ or ‘bar associations’ – generally have the respect of their members voluntarily offered rather than compulsorily required. However, the many associations which still retain both representative and regulatory roles, and even a co-regulatory function with an independent body, will also find the discussion relevant to their efforts to balance both functions. The strategies advocated here are addressed to the representative role rather than the organisation per se, because that representative function is just as important to lawyers’ ethics as is that of regulation. Representatives, or those wearing a representative hat, have the positive interests of their members in necessary focus at all times and can take assessment initiatives which a pure regulator may either not have power to commence or will consider itself unable to initiate because of perceived conflicts of interest. Associations of lawyers are able to take a public lead on a professional issue if they want to, without an individual client complaining. They can be more responsive to overarching social and professional

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needs than regulators because, once freed of regulatory obligation, they do not need to be constrained by the possibility of conflict in prosecuting a particular member. In fact, many members both expect and need their associations to take public-interest initiatives on many issues, without regard to the politics of regulation. A rare individual regulator may have the charisma and professional respect of lawyers, but they cannot easily expand programs to develop and improve ethics without at least some suspicion that there might be a regulatory consequence for non-cooperation. Representative societies and associations have the potential to take forward the professionalism agenda with members’ cooperation, based on a sense of mutual interest, whereas regulators can only require a minimal compliance, rarely with a concern for lawyers’ autonomy and never with a sense of their allegiance. Law societies and bar associations have in these proposals a chance to strengthen public confidence in the profession and minimise the risk of government intervention when that confidence is shaken. And shaken it is, with more noticeable effect after each deplorable event. Consumer and government pressure on ethical agendas is now relentless. In common law legal systems there is an identifiable trend towards, for example, independent complaint handling. Where the dysfunction is bad enough, government intervention can extend to eliminating professional control of much more: admission controls, trust account regulation, client compensation funds and even malpractice insurance.7 Law societies have the opportunity through the measures proposed here to provide additional practical encouragement of lawyers’ ethical behaviour, not just to support the legal system and resist government intervention in the profession, but to continue to build community confidence in the fairness of society. When lawyers’ ethics are seen to be inferior, the ability of the justice system to function (and the social confidence which is nourished by our courts’ ability to deliver justice), is undermined. Although community dissatisfaction with many aspects of lawyers’ performance is not always reasonable or justified, questions about the integrity of the court process go to the heart of citizens’ willingness to obey the law and must be answered, either by the profession or if not, by governments. This book identifies various assessment strategies that law societies could use to improve lawyers’ professional behaviour. Chapters 1 to 4 explore the cases and empirical research which establish the need for improved behaviours. They then describe legal ethical methods and types which are significant for assessment (that is, the ethical decision-making processes which all lawyers use, consciously or otherwise, to make decisions), and set out various approaches to counteract the commercial pressures of legal practice – notably ‘quality’ and competence testing in the United Kingdom, the insights from US efforts to assess medical

7 See, for example, ‘Special Edition: Legal Profession Reform in Queensland’ (2004) 23(2) The University of Queensland Law Journal; Reid Mortensen, ‘Interest on Lawyers’ Trust Accounts’ (2005) 27(2) Sydney Law Review 289.


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professionalism and the emerging ‘ethical infrastructures’ of incorporation and malpractice risk management that will increasingly influence practitioners’ behaviours. Chapters 5 to 8 then discuss the opinions of a group of 30 specialist lawyers as to the usefulness of a number of compliance-like assessment mechanisms designed to encourage an individual lawyer, in their working life, to behave professionally. These chapters review what interviewees in this Melbourne-based study thought about, specifically: the possibilities for psychological testing of honesty and integrity, ● the relevance of disciplinary histories and clients’ assessments to ongoing ● licensure, lawyers’ awareness of values and ethical method and type, as periodically ● assessed by the combination of a numerical measure of awareness of ethical type and law society-controlled interview, and the potential of current continuing professional development schemes as ● mechanisms through which ethics assessment could be implemented. It is important at this point to specify what is actually meant by ‘ethical behaviour’ when that term is used in this book. Potential understandings are numerous, but this is the definition used in following chapters: ethical behaviour is considered, decisive and proper in the circumstances. A lawyer behaving ethically will intentionally choose between the major competing legal ethical principles and rules and adopt a bona fide position and course of action, rather than responding to laziness, to intuition or to self-preservation. Such behaviour does not automatically fall on one side of a line rather than the other; for example compliance with professional conduct rules, because such rules are often inconsistent and do not always concur with underlying ethical principles. Conduct rules also vary widely across jurisdictions, making them relatively unsuitable for assessing ethical consciousness among practitioners with transnational practices. Rules are important, but if law societies limit themselves to promoting mere compliance with rules, devoid of context or situation, a continuously tightening spiral of decision making is necessary in order to try to reach ever narrowing but never certain guidance: a barren enterprise. Similar reasons apply for the emphasis here on ethical methods and types for assessment purposes, rather than on assessing a lawyer’s knowledge of inevitably local ethical doctrines and common or civil law principles such as confidentiality, client privilege or the limits of defence advocacy in any one jurisdiction. While knowledge of ethical doctrines can be tested as readily as any piece of substantive information, such knowledge does not indicate whether a lawyer, particularly a new lawyer, is more or less likely to decide to behave ethically, when they are struggling under the considerable pressure of the practice environment. In proposing innovation of this nature, the ethics of assessment is itself an issue. As lawyers must collectively remain a central, if not the central mediator of individual rights and freedoms in tension with increasingly centralised and information-powerful governments, the possibility for ethics assessment to be utilised against the legal profession for ignoble purposes will seem too much for

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some critics. They will claim, reasonably enough, that even the conservative proposals of this book will provide a thin end of the wedge for oppressive regulation, making it progressively easier to proscribe certain assessed attitudes as ‘contrary to the public interest’. Orwellian thought control might be around an even closer corner as a result. But the proposals here are very cautious for precisely this reason; they do not advocate assessment of attitudes, that is, of a person’s ethics per se, but rather of their awareness of the varying options that present themselves as a basis for decision making. It might even be said that they are too conservative and that mere awareness of options will say almost nothing about how a person might choose to behave. Yet the experience of educators and researchers is highly suggestive that it is the quality of awareness,8 gained through discussion, learning about concepts and especially personal reflection on choices and on what is ‘right’ or ‘wrong’, that is more likely than anything else to give pause for consideration in ethically demanding situations and lead to better ethical behaviours in the vast majority of good lawyers who do seek to practice law with integrity. If there is any greater risk to lawyers’ independence as a result of assessment of their awareness of ethical choices, it is hard to see how these proposals will produce that threat. Overall, the argument is that better governance of lawyers by lawyers may be addressed at a practical level, not only in the general population of legal practitioners, but also among elite lawyers, by promoting and reinforcing – as positives – not just their competence but particularly their key ethical sensitivities. If adopted by law societies, this promotion and reinforcement might help to initiate a stronger culture of ethical accountability as a visible norm of all legal practice, in much the same way, for example, as ‘accredited’ or certified specialisation has become a visible norm of competent legal practice in a number of jurisdictions.

1.2 Standing aside from self-interest It is certainly not suggested that lawyers as a class are no longer trustworthy. That proposition is ridiculous and extreme, but the indications of a profession under behavioural stress justifies a focus on greater ethical consciousness and accountability, just as the profession has thus far promoted lawyers’ technical skills. Stephen Parker has commented: If, for example, it is accepted that work of a particular kind is specialist work and that lawyers who meet certain standards can hold themselves out as especially competent to practise it, why can it not also be accepted that the work brings with it particular 8 See generally the discussion in David Luban, ‘The Ethics of Wrongful Obedience’ in DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000. See also Ingar Brinck and Peter G¨ ardenfors, ‘Representation and Self-Awareness in Intentional Agents’ (1999) 118(1) Synthese 89; AB Carroll, ‘In Search of the Moral Manager’ (1987), 30(2) Business Horizons 7.


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responsibilities which depart from the traditional idea of what a lawyer does? In other words, if boundary-drawing is possible for competence, is it not also possible for conscience?9

How therefore might law societies manage to prioritise ethical accountability, including responsibilities to the courts and the community? At least part of the answer must lie in the constructive study of bad cases and reflection on their impact. Such scrutiny is not easy for the profession and particularly difficult for law societies and bar associations because the cases themselves often involve well-known people who remain connected to the professional organisations in various formal and informal ways. To delve into such matters without good purpose can seem offensive, gratuitous or just embarrassing. But if the purpose is reflective; if the study of such matters is designed to alert and forewarn, even to inoculate, then it must be in the interests of those societies and bar associations to make use of the history in order not to repeat it, or at least not to be defensive when the exercise is part and parcel of a wider process of enhancing ethical maturity. One such case – and perhaps the best known recent Australian example – involved a large national law firm, Clayton Utz, which was initially criticised by the Victorian Supreme Court in an important case involving the tobacco industry. Rolah McCabe, a terminally ill victim of lung cancer, had sued British American Tobacco Australia Services (BATAS) alleging that her cancer was a result of her childhood addiction to nicotine acquired from smoking and that BATAS was responsible because it had known of the toxic and addictive qualities of tobacco at the time they were marketing their cigarettes to her as a child. Mrs McCabe succeeded in persuading Justice Geoffrey Eames at first instance that the defendant, knowing that litigation was imminent by someone addicted to nicotine and suffering from lung cancer, had destroyed its own historical documents; documents which presumably showed that it knew of the toxicity of nicotine at the time of its cigarette marketing.10 BATAS defence was struck out by Justice Eames on the basis that a fair trial had been denied to the plaintiff when the defendant (having destroyed its records) failed to provide sufficient discovery. More particularly for the present purpose, His Honour found that BATAS was assisted by Clayton Utz in developing a ‘document retention policy’, which was in fact designed to systematically destroy incriminating documents, noting that they had ‘. . . advised Wills [BATAS] on the wording of the policy, [ensuring] that words were inserted into the written policy document to which reference could 9 Stephen Parker, Cost of Legal Services and Litigation: Discussion Paper No 5 – Legal Ethics, Parliament of Australia, Senate Standing Committee of Legal and Constitutional Affairs, 1992, p 94 [6.14]. Parker’s comments were delivered in the context of a discussion about different rules of ethics for different sectors of practice, so that, for example, criminal lawyers might adhere to strict rules of zealous advocacy while corporate lawyers might be bound to consider the public interest at least as much as their own clients’ interests. 10 McCabe v British American Tobacco [2002] VSC 73.

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be made in order to assert innocent intention and to disguise the true purpose of the policy.’11 The court made other findings as to the effect of later variations in the policy which included holding documents offshore and in the custody of Clayton Utz, to make it easier to deny discovery to any future plaintiff.12 The general import of the whole judgment was to suggest that commercial pressures on Clayton Utz to support the client were suffocating its primary duty to the court to see that a fair trial occurred and justice done. Clayton Utz vigorously defended its actions and its reputation. In December 2002, the Victorian Court of Appeal comprehensively reversed the judgment of Justice Eames and exonerated the firm,13 asserting that destroying documents was not unlawful unless it amounted to an attempt to pervert the course of justice or was a contempt of court. The appeal court effectively affirmed Clayton Utz’ behaviour, but the damage had been done. Despite the reversal, public distrust of the profession was again boosted when Melbourne newspaper The Age published a critical commentary on the appeal court decision and its implications for document destruction.14 The case at this point seemed to set up in the public consciousness a stereotypical ‘bad’ firm representing a ‘bad’ and wealthy corporate client. The stereotype was highly overstated, but more was to come. In July 2003, a whistleblower emerged from the tobacco industry and reignited the flames. In an affidavit, a former executive of BATAS asserted that it was in fact the company’s practice to destroy documents that might have been embarrassing.15 Clayton Utz responded quickly by asserting that the New South Wales and Victorian regulators had withdrawn investigations into any alleged wrongdoing by the firm in relation to the ‘document retention policy’.16 An appeal to the Australian High Court was unsuccessful but the case had by then made an even larger impact. The State of Victoria enacted new criminal and civil penalties for individuals and corporations who destroyed documents ‘reasonably likely’ to be used in cases already underway or likely to begin.17 In October 2006, an internal draft report by Clayton Utz on its own behaviour was leaked to the press by another former partner and appeared to confirm, despite the firm’s own previous denials, that a small number of its partners

11 McCabe [2002] VSC 73, [289]. 12 ibid. 13 British American Tobacco v McCabe [2002] VSCA 197. 14 Jonathan Liberman, ‘Do Judges Now Admire Corporate Connivance?’, The Age, Melbourne, 11 December 2002, 17. Liberman was a legal consultant to VicHealth, the NGO which stood behind the plaintiff and her family throughout the ordeal of the litigation. Liberman argued that ‘the only winners will be corporations with much to hide, their $500 an hour lawyers and the makers of industrial size shredders’. 15 William Birnbauer, ‘Tobacco Insider Tells of Files “Cull”’, The Age, Melbourne, 19 July 2003, 1. 16 Marcus Priest, ‘Clayton Utz Says It’s in the Clear on BAT’, The Australian Financial Review, Sydney, 25 July 2003, 58. 17 Crimes (Document Destruction) Act 2006 (Vic.). This legislation commenced on 1 September 2006 and imposes substantial fines on individuals and corporations and a maximum term of imprisonment of five years. A complete examination of the wider legislative and procedural consequences of the case is contained in Mathew Harvey and Suzanne LeMire, ‘Playing For Keeps? Tobacco Litigation, Document Retention, Corporate Culture and Legal Ethics’, (2008) 34(1) Monash University Law Review 163.


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and staff were involved in deceiving the Supreme Court.18 There were counter allegations against that former partner of mixed motives, but the leak was in the public domain. Subsequently, those involved all left the firm. Although the exact circumstances of their departure were not made public, it is fair to say that the remainder of the partnership was appalled and in due course went to Herculean efforts to persuade the public that the firm was honourable and the actions of the few were not representative of the remainder. Nevertheless, the possibility that the court process had been subverted by these few lawyers’ unethical behaviour was plain for all to see. Clayton Utz have since done much to restore their reputation and have been partially successful. Initial concerns for the loyalty of their client base did not reduce their long-term profitability. The firm announced, in the interim between the initial finding of Justice Eames in April 2002 and the appeal court reversal in December 2002, that it would cease acting for tobacco companies and that it had appointed former High Court Chief Justice Sir Anthony Mason to head a ‘professional excellence committee.’19 In other words, lessons were learned. Simon Longstaff, Director of the St James Ethics Centre in Sydney, said after the initial McCabe decision that the reputations of some lawyers and accountants were already falling before the McCabe case, due to a failure of moral courage.20 As Buffini noted: . . . Dr Longstaff said some professionals had lost sight of the fundamental difference between a profession on the one hand and a business association, guild or industry group on the other. ‘To understand the difference you need to recognise that virtually everyone in the economy is encouraged by the idea that if they pursue self-interest, the invisible hand of the market will lead to an increase in the stock of common good. Where everyone is doing that, a small group of people in the professions say ‘When everyone will pursue self interest, I will not’. . . . Some professionals appear to do anything but put the interest of the public first. They in fact collude with clients against the public interest.21

Longstaff asserted that the essence of professionalism is a personal willingness to align private actions with the public interest, particularly when the professional’s own financial interest is compromised. Clearly, the McCabe case has had a negative impact on public perceptions of this sort of selflessness. While lawyers are not responsible for systemic cultural attitudes that ‘each of us is entitled to as much as we can get’, Longstaff’s comment about the professional imperative to stand aside from the pursuit of mere self-interest must resonate to some extent. The 18 William Birnbauer, ‘Cheated by the Law’, The Sunday Age, Melbourne, 29 October 2006, 1, 16–17. See also Marcus Priest ‘Informer Smoked Out Over McCabe Papers’, The Australian Financial Review, Sydney, 2 February 2007, 69. At the time this book was finalised, these matters remained unresolved. 19 Bill Pheasant, ‘Appeal Court to Rule on Landmark Tobacco Case’, The Australian Financial Review, Sydney, 6 December 2002, 14. 20 Cited in Fiona Buffini, ‘The Decline of Ethical Behaviour’, The Australian Financial Review, Sydney, 19 April 2002, 57. Accountants and lawyers did not make the top five in a 2001 Morgan Poll that rated the public’s respect for the honesty and ethics of 28 occupations. 21 ibid.

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crux here is that, within strong commercial cultures and without additional professional incentives, individual lawyers’ ability to consistently stand aside from self-interest may be too difficult to achieve. Law societies and bar associations are also at risk here. Their own challenges around independence can send good and bad signals to their own members and the community. Consider, by way of analogy, the predicament of the organised legal profession in its ability to stand aside from its own self-interest, especially visible in some law societies’ attitudes to self-regulation. Legal professional associations in many Western jurisdictions have seen a steady decline in the trust which communities place in them to investigate and discipline their own members,22 because of a view, fair or otherwise, that they allow their peers to escape the consequences of their unethical actions. Thus the literature surrounding professional self-regulation is characterised, in the case of the legal profession, either as a necessity for lawyers’ independence from potentially repressive governments (and hence a key element of ‘professional’ functioning) or an occupational smokescreen, designed to help lawyers stay in control of their reputations and often substantial incomes.23 Some have learned from this risk and modified their approaches, but others have not. Poor complaint handling has drastically reduced the power and prestige of law societies in Queensland and the United Kingdom, among others. If a powerful profession cannot be seen as sufficiently trustworthy to discharge its community obligations unaffected by self-interest, how can individual lawyers be expected to cope with such pressure, unless additional incentives are brought into play? It is worth observing that, for example, medical professional organisations cannot directly or indirectly investigate or prosecute their own members for misconduct.24 And medicine’s reputation for professionalism has not suffered to the same extent as law. In similar manner, it is unlikely that complete selfregulation by lawyers is an essential part of their professionalism,25 though law societies’ and bar associations’ tangible encouragement of individuals’ ethical probity, most certainly is.

1.3 Ethics at the centre of professionalism Writers of various backgrounds, within Australia and elsewhere, are almost tiresome in their concerns about legal professional behaviour. In the United States, Anthony Kronman, the former Dean of Yale Law School, asserted in 1999 22 See Stefanie Balogh, ‘We Win and You Pay,’ The Weekend Australian, Sydney, 17 August 2002, 24. 23 See, for example, R Abel, ‘Why Do Lawyers Promulgate Ethical Rules?’ (1981) 59 Texas Law Review 639. 24 Thus, for example, the Medical Practitioners Board of Victoria shares complaint investigation with another statutory body, the Health Services Commissioner, not the Australian Medical Association. See <www. medicalboardvic.org.au/pdf/AR 2005/pdf Sec1:11> at 15 February 2005. 25 This does not alter the fact that many lawyers and commentators consider that there are good arguments to hold on to self-regulation. See, for example, William Hurlburt, The Self Regulation of the Legal Profession in Canada and in England and Wales, the Law Society of Alberta and the Alberta Law Reform Institute, Calgary, 2000.


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that ‘[a] new and aggressive culture of commercial values, which claims for itself a moral as well as a material superiority, is spreading through the profession as a whole.’26 The McCabe case is not an isolated example of commercialism dominating professionalism. The fact that some firms are learning from past mistakes does not necessarily mean that other practitioners, who have not been exposed to negative publicity, are picking up better attitudes vicariously. As yet, while firms as entities are coming under some organisational scrutiny that could improve ethical structures, there is no universal mechanism to ensure that individual lawyers are assessed for their understanding of others’ prior failure, for their consciousness of ethical complexity or their awareness of future vulnerability. The extensive literature on these issues is discussed in the next three chapters. At present, it is enough to note that pronouncements such as those of Rhode and Kronman are not just a reaction to the scandals of Enron, Arthur Andersen and indeed McCabe, but a concern to identify what functioning societies need in a lawyer, rather than which lawyer behaviours must be stamped out. The emphasis throughout this book is on what can be promoted rather that what ought to be avoided. Sharon Dolovich, for example, has tried to set out what the appropriate moral character of a lawyer might look like. She identified as crucial the willingness of a lawyer to act in a self-aware (non self-deceptive) manner, with integrity, in all situations of moral choice and regardless of personal costs. Some might read this prescription with a sad shake of the head, recognising that there are many complex psychological factors that actually decide behaviour. But this ideal could emerge, Dolovich believes, even when individual lawyers find their personal individual integrity challenged by a powerful systemic focus on profit maximisation, provided that it is recognised that not all lawyers can achieve their best in ethical behaviour all the time.27 It is na¨ıve however, to assert that individuals’ conscious choice of an ethical position will be enough to secure overall ethical behaviour, especially in large law firm cultures. It has been suggested that only about a third of adults have the ability to take a personal stand against the members of a group or team in which they are involved.28 If that proportion is accurate, maintaining an ethical stance through individual moral strength alone is also impractical for many and external, structural support for such a stance now needs to be considered. While legal ethics is merely lamented rather than assessed, no-one should be surprised if it languishes. The damaged framework of legal ethics could now be amenable to development and then assessment as a concrete template for ethical legal practice.

26 Anthony Kronman, ‘Professionalism’, (1999) 2 Journal of the Institute for the Study of Legal Ethics 89, 90. 27 Sharon Dolovich, ‘Ethical Lawyering and the Possibility of Integrity’, (2002) 70 Fordham Law Review 1629. 28 Margaret Symons, ‘Justice Inc.’, The Sunday Age, Melbourne, 4 August 2002, 1, citing Professor Marie Joyce, then chair of the Australian Psychological Society’s ethics committee.

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But what is actually ‘damaged’ about legal ethics? Consider again the contest inherent in the McCabe29 scenario, where a corporate client’s strategy to destroy its own documents was partially conceived by its lawyers. Some argue that all ethical strategies are win–win in nature: that any ethical challenge can be met without hurting immediate profits; that in fact the present culture of legal practice fully supports ethical behaviour. This proposition is highly unlikely. When a newspaper interviewed a young corporate lawyer about ethics and asked (immediately after the initial decision in McCabe), whether he and his colleagues had conversations about ethics around the coffee machine, the response was derisory: ‘Apart from anything else, there is no timesheet code for “ethical discussion”.’30 Even when ethical behaviour is expressly on the agenda, the discussion is commonly not about what ethical content actually means, but is circular and merely begs the question as to the differences between law and ethics. In the early days of the McCabe case, the chief executive partner of Clayton Utz was interviewed shortly after the initial Supreme Court decision. He was reported to have said that there is no conflict between ethics and business: when the two are in conflict, the lawyer must cease to act. Further, he considered that morality has no place in the advice given to a client, provided everything is done within ethical standards. These standards, he asserted, are (just) a necessary legal framework for the legal system.31 The circularity of these comments escaped him and it is still difficult for some lawyers to see that they want it both ways. Legal ethics has been damaged by overemphasis on the legal at the expense of the ethical. And falling back on legality does not resolve a great deal. If legal behaviour is truly pragmatic (sensible) behaviour, why are legal standards (that is, those set out in the professional conduct rules of most law societies) failing to inspire, let alone generate the best behaviour? Why indeed are there principles of legal ethics that other lawyers see as optional in comparison to law? Could part of the answer be that morality or altruism are in reality ignored in so-called ethical standards and that this might occur because ethical concepts are never sufficiently examined, promoted or measured? Law societies do not publicly voice the opinion that lawyers’ professionalism is in crisis. Whenever there are public calls for reform or improvement in lawyers’ standards and, in particular, for better complaint-handling mechanisms, the organised profession has been publicly confident that there is little reason to be concerned. The Law Council of Australia considers that commitment to ethical principles is a ‘central factor’ in the ‘unique distinctiveness’ of the legal profession.32 Individual lawyers continue, to their considerable credit, to

29 [2002] VSC 73. 30 Symons, op cit, n 28. 31 ibid. 32 Law Council of Australia, ‘2010: A Discussion Paper – Challenges for the Legal Profession’, Canberra, 2001, pp 121–4.


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demonstrate their belief in justice and in access to its processes.33 Yet the very best of these people are those who voice the most penetrating concerns: the judges who have been in a position to observe without the need to take any particular view. Consider the views of former Justice Michael Kirby of the Australian High Court: We must certainly all hope that the basic ideal of the legal profession, as one of service beyond pure economic self interest, will survive. But whether it survives or not is up to the lawyers of today. They should do what they can . . . to revive and reinforce the best of the old professional ideals, to teach them rigorously and insistently to new recruits and to enforce those ideals strictly where there is default. But will they heed this call or dismiss it with a yawn and return to billable hours?34

Justice Kirby is not alone here. Lawyers’ collective reputation was dealt a further severe reprimand in the 2006 judgment of Judge Gladys Kessler, of the US District Court. Judge Kessler, in a finding that the tobacco industry breached racketeering laws in a conspiracy to deceive the public, had this comment about the lawyers involved: Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified ‘friendly’ scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege. What a sad and disquieting chapter in the history of an honorable and often courageous profession.35

These judges do not suggest that law societies’ or big firms’ comfortable positions about the state of legal ethics are well based. And apart from these comments and cases, the empirical evidence discussed below shows that lawyers, particularly younger lawyers, are ethically adrift. They may not be ‘bad’ so much as ethically AWOL. Even in a global financial crisis, new lawyers’ peer culture is too often one of material excitement, moral disengagement and immediate financial rewards.36 When added to their natural nervousness about superiors’ directions, only a minority seem prepared for independent ethical thinking and decision making. 33 See, for example, Abbe Smith, ‘Defending the Unpopular Down Under’ (2006) 30(2) Melbourne University Law Review 495. 34 Michael Kirby, ‘Billable Hours in A Noble Calling?’ (1996) 21 Alt L J 257, 261. 35 See at 31 August 2006. 36 See Section 3 ‘Alienation of Lawyers’ in Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252.

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1.4 Younger lawyers’ disconnection: Older lawyers’ denial A study of new lawyers’ intentions when confronted with ethically challenging situations is instructive. A large-scale study of some 700 final-year law graduates at Australian law schools was made in 2001–03 and the same group was followed through their first two years of legal practice.37 One of the questions put to these lawyers about contentious ethical situations included this one about overcharging clients (see Figure 1.1). Scenario: In your first year of work in a law firm, the partner supervising you gives you some files to get ready for ‘costing’. She asks you to total the number of hours which you have spent on each file and, from her harried expression, it is pretty clear that she is concerned to charge out a significant amount on each matter. She asks you to ‘round-up’ your hours to the next hundred in each file, saying that, on average, clients are happy because the main thing they demand is quality work. You know that these clients are more or less satisfied with the firm and that your supervisor is not about to debate the issue with you. Question: Would you round-up the hours as requested?

Most of them, while still in law school, said they would round-up the hours.

Round-up hours 500

400

300

Frequency

200

100 0 yes

no

Figure 1.1: Willingness to overcharge

37 See Adrian Evans and Josephine Palermo, ‘Australian Law Students’ Perceptions of their Values: Interim Results in the First Year – 2001 – of a Three Year Empirical Assessment’ (2003) 5 Legal Ethics 1&2, 103–29; Adrian Evans and Josephine Palermo ‘Zero Impact: Are Law Students’ Values Affected by Law School?’ (2005) 8(2) Legal Ethics 240–64.


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As the following extracts make clear,38 many still felt under a lot of pressure to overcharge in their first year of employment: I don’t think you’d have much choice in that situation. Obviously it reflects something of your supervisor’s manner of doing business. If it’s a matter of keeping or not keeping a job . . . I think it would very much depend on the dynamics of the firm. I think realistically speaking you would be sort of stuck in the employee/employer situation where somebody was in charge and you were basically required to follow their instructions. I don’t think in the current job market you can go around being necessarily the white knight of, how shall I put it, of moral conduct. There isn’t [sic] enough jobs going around to be you know as picky and choosey as you might like to be, or necessarily to apply your own standards to other people’s conduct . . . The perfect example’s when you look at people who have stood up as whistleblowers in almost any profession. The most current example is poor old [name] from the police force. He had issues which were of absolute importance but he was very quickly dealt with, and I think particularly for people who have families to feed, how much risk are you prepared to take and what you lose if you do. (A, 10 October 2002) Oh, I’d feel the pressure and I can’t honestly say that I wouldn’t bill the extra hours and speak to the partner about it and that would be that. (D, 12 November 2002)

However, a few were not prepared to overcharge and were clear about their reasons: . . . at my first year of work at a law firm I’m actually not going to set myself out as someone that looks . . . I mean things get around, somehow, somewhere, whether it’s five years on or whatever, that I took part in that type of behaviour. So down the list it’s also looking after myself. (K, 6 November 2002) They’re happy with the work that they’ve asked for in expectation of appropriate billing; not happy with work that they’ve asked for in expectation of any sum that we want to put on it. (K, 6 November 2002)

Accordingly, while evidence of ethics stress among young lawyers is real, it is also variable in its effects. The minority who were clear about their obligations and the divergent responses show there is hope for remedial action. Law societies do need to focus on younger lawyers’ moral growth in particular, but the prognosis for lawyers in the older groups may also be problematic. The informal anecdotes of regulators tell the stories of more than a few older lawyers (those say, over 45 years, operating in smaller or marginal environments), who seem to have received too much indoctrination in the rigidities of the formal conduct rules, which can promote a ‘let’s get around it’ attitude, at the expense of more fundamental consideration of the ‘right’ and ‘wrong’ thing to do. In the process, they may have acquired a culture which has left many effectively devoid of any sense of obligation to formal rules (except perhaps in relation to trust account administration) and a certain cynicism as to the gains from discussion of ethics in practice. 38 Evans and Palermo, Legal Ethics, 2005, op cit, p 246. All stated quotations from respondent lawyers first appeared in this article.

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Some might say that the utility of investing in renewed training of this older cohort is marginal, given the period of time which they may remain in practice. However, ‘remaining years in practice’ might not be the best criterion for such decisions, because their impact on the community will be disproportionately large, given the size of legal practices they have built up over the years and perhaps the acquired skill of some in attracting gullible clients. This group is apparently identifiable in complaints’ statistics for less than adequate ethical behaviour and law societies could also decide to focus upon their remediation, in both their interests and those of the community. If so, assessing ethics and other measures identified in this book could be of use.

1.5 Ethics assessments as ‘central value propositions’ Regardless of the ethics profiles of particular lawyer groups, all firms have a managerial stake in better ethical behaviour. Their economic stability and growth depends on retaining their staff. At the same time, the most costly risk for firms, which they must manage effectively if they are to control expense, is losing their early-year lawyers to other firms or from the profession entirely. Such lawyers’ sense of overwork, ethical disillusion and increasing depression is discussed in more detail in Chapter 5. Ever-rising salary levels do not indefinitely assist. Increasingly, the best strategy for firms to counter these experiences is not just ‘workplace-friendliness’ in terms of child-care, more flexible hours or even bonus shareholdings in the emerging incorporated legal practice structures, but to develop an ‘ethical brand’ as their ‘central value proposition’.39 In other words, growing firms need the stability of positive, whole-of-practice approaches to ethical service delivery if they are to be attractive for new lawyers to remain working in as well as to invest in. A question might now be posed: what ‘kind’ of ethics do clients want? Will clients want a brand of ethics that might compel, for example, a lawyer to prioritise a duty to the court over a client’s interests? A quick response would be ‘of course not’; but the more considered response (coming from the more desirable long-term client), could also be along the lines of ‘yes, because this is the sort of lawyer who will protect me and my business reputation over the long term.’ Providing the use of an ethical brand is not a market ploy, the central value proposition of this type of lawyer and law firm should attract the type of client who sees ethical behaviour as important to their long-term commercial stability and therefore profitability. It is passé to argue that all firms need concrete business models which allow them to balance reasonable profitability against ethical risks such as reputation damage, unpaid fees or disciplinary prosecutions. This is especially so if they are 39 Attributed to Anthony Kearns, National Risk Manager, Legal Practitioners’ Liability Committee, Melbourne, March 2009.


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incorporating as separate legal entities and trying to attract external investors. Such caution around ethical profile is only prudent; but it would be relatively new for these same firms to identify ethical excellence, not as a mere risk factor, but as a positive managerial objective of legal practice. A genuine ethics profile for each firm, involving measurable ethics assessment indicators – published for example on the firm’s website – would offer positive encouragement of ethical behaviour and attract the sort of clients who will not embarrass the firm over the long term. Such indices would push traditional professional indemnity or malpractice insurers’ concepts of risk management well beyond a negligence prevention and premium control strategy. Ethics assessment therefore offers a tool for firms to build their central value propositions in a multifaceted approach to staff and client retention, investor confidence and efforts to promote generalised perceptions among other law firms of ethical practice, and not just competence. However, ethics assessment is not a magic bullet. As a concept it will be manipulated. Inevitably there will be some, including large firms, who would see an opportunity to develop only the façade of ethical accountability as a marketing opportunity. Choosing only one or two rather than all aspects of legal ethics to assess could reduce the effectiveness of the overall concept. And the minutiae of constructing and developing numeric and alpha-numeric indicators of ethical sensitivity, for example, could itself dull ethical sensitivity. Alfieri has perceptively phrased this objection in the (negligence/malpractice) risk management context: The widespread adoption of risk management . . . actually diminishes the appreciation of the moral choices facing lawyers . . . and the other-regarding obligations of lawyers in society. Indeed, the technology of risk assessment and regulation, implemented through internally and externally prescribed policies, subtly discounts the daily necessity of moral discretion and the constant calling of public obligation.40

There is no easy or totally satisfactory response to these criticisms. Properly devised and administered indicators of the type advocated in this book would reflect an individual’s sensitivity to ethical subtlety and moral compromise, and it is implicit that an individual’s sensitivity, once aroused, will retain some potency indefinitely. But that expectation has not been empirically tested and even if this consciousness is aroused in an individual lawyer, there is no guarantee that the ethical culture surrounding them inside firms will be supportive. The development of ‘ethical infrastructure’ 41 in law firms should provide the critical cultural and situational support for individual ethical behaviour and encourage group or at least peer reflection on ethical options before decisions are taken,42 but will not reduce the need for individual awareness and decision 40 Anthony Alfieri, ‘The Fall of Legal Ethics and the Rise of Risk Management’ (2006) 94 Geo LJ 1909. 41 The term ‘ethical infrastructure’ was first used by Ted Schneyer. See T Schneyer, ‘A Tale of Four Systems: Reflections on How Law Influences the “Ethical Infrastructure” of Law Firms’ (1998) 39 South Texas Law Review 245. 42 See generally Christine Parker, Adrian Evans, Linda Haller, Suzanne LeMire and Reid Mortensen, ‘The Ethical Infrastructure of Legal Practice in Larger Law Firms: Values, Policy and Behaviour’ (2008) 31(1) University of New South Wales Law Journal 158–88.

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making. Firms are human enterprises and accumulated complacency about policy regimes must be at least as commonplace a phenomenon as is a concern to be morally accountable, probably more so. Similarly, some will also characterise ethics assessment as just another painful management technique or oppressive regulatory nonsense and that a ‘rating’, whenever obtained and whatever it is, will be seen as another practice hurdle to be complied with and then forgotten. They will go along to ‘assessment preparation’ courses with almost no interest. There must also be some lawyers who, despite participating in positively focused ethics assessment processes, will remain privately and sometimes arrogantly dismissive of the notion of heightened awareness of ethics types or complexity in moral decision-making. But there could not be any more intra-firm cynicism around ethical issues – ‘no time sheet code for ethics discussion’ – than there is at present. There could be no more complacency around ethical accountability than would exist even if no risk management strategies were in place. And there is a genuine concern inside the profession, and particularly among its leaders, to encourage the likely majority of practitioners who can see what damage has been done by the tacit dismissal of ethical accountability to date. What is new to this proposed regime is the acknowledgement of ethical diversity, a respect for ethical complexity and the honouring of moral choice without the hegemony of pre-emptive conduct rules. Many lawyers are anxious that some remedial strategies are commenced.43 The central idea is that accountability for these capacities can be embedded as reputably into the practitioner’s psyche as is the notion of monitoring lawyers’ competence. The familiar risk management regime of forms and checklists need not dilute the capacity for actual ethical courage, provided the ethics assessment training which must precede, accompany and follow assessment is given the same wholehearted attention by law societies and bar associations as they now do to promoting and ensuring the competence of lawyers. In their recent report on legal ethics education to the Law Society of England and Wales, Economides and Rogers observed that the assessment of ethics remains a key unsolved issue within legal education.44 It is also a challenge for law societies, though most are yet to grapple with it.

1.6 Preventing public intervention Alan Paterson, one of the most thoughtful UK writers on legal professionalism, does not see any room for complacency when he recognises the transnational 43 The development of a new Australian national conduct rule is a case in point. This rule is intended to contain more aspiration and less proscription than its predecessors. See <www.lawsocact.asn.au/content/ services/ASCR%20Rules%20for%20LCA%20Directors%20-%2031%20August.pdf> at 21 December 2009. 44 Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’, Section 3: The Challenge of Ethical Assessment, The Law Society of England and Wales, February 2009, p 49, unpublished.


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impact of the consumer agenda and the implicit ‘social contract’ binding professionals’ obligations.45 His approach, in answer to the question: Is professionalism on the way out except for a nostalgic few partners in older law firms?, is to discern a social renegotiation with: De-regulation of restrictive practices . . . matched by re-regulation to boost public protection. Concern for quality and customer care [will] be taken seriously and the public interest in relation to the legal profession [will] be defined not just by the profession but by the state and the consumer movement46 . . . growing ever more dissatisfied with the concordat, feeling that whatever the merits of the ‘bargain’ in an earlier era, it was too one-sided in its present operation.47

Paterson was writing in 1996 but his views still resonate. Coalitions of consumers and government may be ephemeral for most of the time, but can coalesce quite quickly. When such mergers occur, consumer priorities are likely to favour more systematic initiatives to encourage lawyers’ ethics. Paterson’s sense of a new ethical consciousness fits very well with the proposal to encourage the profession to try to improve its own ‘ethical’ future by adopting further ‘quality control’ mechanisms (already well advanced in some environments under a managerial rubric), for all practitioners. While increased accountability would be an internally courageous move, it would also be strategically sensible, because it trades off nothing in the way of autonomy to external regulators, the State or the consumer movement and pre-emptively moves to increase net returns to practitioners by acting on a range of quality fronts. Paterson offers a warning that the State and consumers are confident of their ability to intervene when they perceive the need arising. Law societies, once aware of the potential to reduce future ethical abuse, may of course choose not to act. They may think that cost-benefit analyses of these proposals are insufficiently persuasive. They may also blanch at the cash flow issues or fear alienating the broader membership by too much promotion of measurement. They might, peremptorily, consider that there are insufficient prospects for any improved accountability reducing the incidence of unethical behaviour in the wider profession or, more prosaically, even fail to identify any further external regulatory threat. But inactivity will add to the risk in many jurisdictions of reaction by the State, by regulators or by the consumer movement on the next occasion that a major breach of public protection emerges in the limelight. When the scandal is big enough, as with Enron and the consequential Sarbanes-Oxley Act,48 not to mention the global financial degradation of 2008–09, the need by governments to take enormous strides ought not to be forgotten. 45 Alan Paterson, ‘Professionalism and the Legal Services Market’ (1996) 3 International Journal of the Legal Profession 137, 152–3; at 158: there appears ‘. . . an implicit (and sometimes explicit) contractualism behind [the] concept of professionalism.’ 46 ibid. 47 ibid, p 149. 48 H.R. 3763, 107th Cong. 2002.

2 Ethical failures, research and core qualities

2.1 Education without assessment is wasted effort The experience of the community, clients and courts with lawyers’ ethics is unfortunately biased because of the reality that ‘good news is no news’ and correspondingly, bad cases are remembered. Law societies and bar associations have always faced an uphill battle to deal with public perceptions that lawyers’ ethics are in disrepair. No amount of professional effort to the contrary seems to shift this perception, even when there are attempts to convey the same message in the most ‘feel-good’ area of lawyers’ professional activity: through the acknowledgement and publicity of lawyers’ often considerable pro bono activity.1 Efforts to improve ethics might therefore meet the comment from some lawyers that there is little point in such initiatives because public attitudes to lawyers will always be cynical. This observation is probably accurate but does not deal with two other realities: that independent of public perceptions, ethical functioning needs to improve and lack of improvement will prepare the way for greater regulatory intervention by government. This is not to say that there is ‘no’ activity directed at improving legal ethics, just that it is insufficient. As a 2007 symposium at Georgetown University heard, the last 20 years have seen many initiatives in academic legal ethics education: more teachers involved and better materials, followed by continuing legal ethics education, more insightful bar association discussion about ethical complexity, better coverage in the legal press, the appointment of intra-firm ethics 1 See Linda Cauchi, ‘An Obligation to Serve? Ethical Responsibilities and the Legal Profession’, (2002) 27 Alt LJ, 133–5.

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FAILURE, RESEARCH AND QUALITIES

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partners and especially, more consistent judicial comment on the lack of ethical standards in particular cases.2 Yet observers do not see much change in behaviour.3 Part of the reason for this apparent disconnection between effort and outcomes might have something to do with law students’ generalised failure to identify personally with the teaching they receive, no matter how passionate, allowing them to graduate and go on to display a vulnerable amorality in the assertive cultures of many law firms. Arthurs connects students’ ethical vacuum to positivist, ‘black letter’ infiltration of all legal education, observing that ‘a course in legal ethics – like a course in say, real estate or labour law – requires only that students study a syllabus, not that they believe in it.’ 4 But if there is no imperative to believe anything in the academic phase of legal education, that apathy is dangerous in the legal practice environment. Some will still argue that the unfortunate cases on the public record are exceptional and that legal ethics are not in need of determined recovery action, but there is also empirical evidence beyond the cases that the general state of lawyers’ ethics is confused, variable and deficient. This chapter illustrates by reference to notorious cases the urgency of ethical belief and assessment and then sets out the sweep of research on the scope of issues raised if such intervention is to be successful. A variety of legal professional characteristics or core qualities of legal ethics are considered as possible factors in deciding on the best approach to assessing legal ethics. These characteristics include commitment to clients, collegiality, the importance of abstract knowledge, honour, trust and altruism. The connection of these foundation concepts to the more formal principles of legal ethics (which follows in Chapter 3) is instructive and leads to consideration of how those principles, which are often in tension with each other, can be used to provide a key tool of ethics assessment.

2.2 Representative Australian cases of ethical dysfunction It seems trite to say that clients and consumers have always been cautious of lawyers or that allegations about lawyers’ bad or inadequate behaviour are not a recent phenomenon.5 But recent notorious cases in many jurisdictions 2 Georgetown Journal of Legal Ethics, ‘2006 Symposium: 20 Years of Legal Ethics, Past, Present and Future’ (2007) 20 Geo J. Legal Ethics 321. Keynote address by Prof Stephen Withers, 324–7. 3 ibid, John C Keeney, Jr, pp 336–7. 4 Harry Arthurs, ‘Why Canadian Law Schools Do Not Teach Legal Ethics’, in Kim Economides (ed) Ethical Challenges to Legal Education and Conduct, Hart Publishing, Oxford, 1998, cited in Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’, Section 3: The Challenge of Ethical Assessment, The Law Society of England and Wales, February 2009, unpublished, 50. 5 Respect and disrespect for lawyers have a long and intermingled history. Consider for instance the origin of the word ‘pettifogger’, an evergreen literary descriptor of lawyers. The word ‘fogger’ is a derivative of the arcane ‘Fugger’, the name of a famous Augsberg family of financiers and merchants of the 15th and 16th centuries. The family name became so well-known that it was synonymous with finance, wealth and money.

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are now better and more widely reported as networks of regulators, law societies, governments, consumer organisations and academics all give attention to the implications of these issues for stability in and accessibility to justice systems. While constant reporting of less than ideal professional behaviour among lawyers is a reminder that the ‘problem’ is receiving more attention than possible solutions, examples from various jurisdictions disclose common themes and, paradoxically, provide some confidence about developing appropriate strategies that might apply across jurisdictions. These strategies go substantially beyond the traditional calls for better ethics education in law schools or more client compensation, even though these remain important for prevention and damage limitation. Better responses to misbehaviour begin with recognition that ethical decisionmaking in legal practice is difficult and involves moral subtlety, greyness, context and principles (especially in competing models of ethics) and an acceptance by ordinary lawyers that their engagement with this sort of ethical complexity is superior to slavish adherence to conduct rules. This complexity was well illustrated in a recent Queensland case involving an abortive attempt to discipline a lawyer who had successfully represented a suspected terrorist.6 In 2007 Gold Coast medical practitioner Mohamed Haneef was charged with recklessly providing support to a terrorist organisation.7 Prosecutors, acting on false information from the Australian Federal Police (AFP), alleged Dr Haneef’s mobile phone subscriber information module (sim) card had been found in the possession of his cousin, who had been involved in a violent but ultimately frustrated attempt to kill passengers at Glasgow airport.8 Dr Haneef’s barrister Stephen Keim SC, faced with what appears to have been the intentional and prejudicial release of selected parts of Dr Haneef’s record of interview to the media by the AFP, decided that his best and necessary course of action was to try to equalise the public debate surrounding his client by releasing the complete record of interview. The AFP leaks had portrayed Dr Haneef’s views as extremist, but Keim’s release of the full interview gave a far more benign representation of his position. An appraisal of the complete interview cast considerable doubt on the integrity of the prosecution and, when it was also shown that the sim card was not in the vehicle that blew up in Glasgow, the charges of supporting terrorism failed. Unhappy with that outcome, the AFP lodged a formal complaint with the Bar Association of Queensland against Keim. The complaint alleged that Keim’s

The petty-fogger, or lesser-fugger, appears to have become associated with the less-significant, less-esteemed and probably less-honourable practitioner of the financial enterprise. Pettifogger: ‘A rascally lawyer; an inferior legal practitioner’, Oxford Australian English Dictionary, OUP, South Melbourne, 2004, p 967. 6 Much of the detail on the Haneef case is extracted from Adrian Evans, ‘Justice Before Rules’, (2008) 82(4) LIJ 76. 7 Parliament of the Commonwealth of Australia, Criminal Code Act 1995, s 107.7(2). 8 The Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef. See at 9 February 2009.


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decision to release the full record of interview to the media contravened Rule 60 of the Bar Association rules which provided, inter alia, as follows: 60. (a) A barrister must not publish or assist the publishing of material concerning a current proceeding except by supplying only: . . . (ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court . . . 9

Rule 60 contained no provisos which could exonerate Keim and the Bar Association had no choice but to conduct an investigation at the request of the Queensland Legal Services Commissioner, under that State’s external lawyer regulation system. Subsequently, the Commission conducted its own investigation and its finding, released in February 2008, was that a technical breach of Rule 60 had occurred but that Keim’s actions were nevertheless justified in the circumstances.10 The AFP attempt to use the wording of this particular conduct rule to take some minor revenge on Keim failed because the Bar Association and the external regulator understood the limited place of rules of conduct in the overall scheme of ethical behaviour. The Haneef/Keim case vividly highlighted the danger of an approach to legal ethics that glorifies the rigid form at the expense of the wider substance. Rules of conduct, especially those expressed in the unequivocal terms of Rule 60, can appear to embody the entire received wisdom of the profession on legal ethical issues, but the aura around conduct rules is risky for lawyers’ ethics because it is their nature and indeed training to examine rules of all sorts to see where their limits are, in order to avoid them where possible. Since ethics is not first about rules per se, but first about propriety in process, to which rules contribute, so also the question arises: Why was this particular rule cast in such narrow terms? One of the submissions made to the Bar Association of Queensland in relation to their investigation made this point: Rule 60 appears to have been intended for the common case of keeping an ‘ordinary’ trial fair, by limiting opportunities in which the trier of fact is influenced by events outside of the court; not the super-ordinary example of a malicious prosecution where the issue of fairness has already been subverted. If a barrister has reasonable evidence that there is a misuse of power on the other side or a miscarriage of justice is occurring, surely we would not expect Rule 60 to prevent him or her from preventing or correcting that injustice in the interests of his or her client? To apply Rule 60 in these circumstances would go against the intention of the framers of the Rule, who would surely not wish to have this legacy attributed to them.11

If Keim convincingly illustrated the importance of context in ethical decisionmaking, that might have been because the matter involved the criminal law, 9 Bar Association of Queensland, Barristers Rule 2007. 10 See Legal Services Commission Queensland, at <www.lsc.qld.gov.au/31.htm> at 4 January 2010. 11 Submission by Australian legal academics to Bar Association of Queensland, 10 December 2007. Copy on file with the author.

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with fewer financial implications than arise for most other areas of law. In fact, case experience to date seems to beg the question as to whether hard ethics questions are asked at all when the financial stakes for some lawyers and law firms are high enough. If those questions are asked, individual lawyers’ responses are generally opaque to outside scrutiny because there is rarely a trial process to expose bad policy or bad decisions to journalists’ questions. Reported cases are the exceptions and while ‘ethical infrastructure’ systems which look at firm policies and procedures are gaining justified favour,12 they are not designed to pre-emptively and transparently assess individual lawyers’ commitment to ethics. There is no mechanism at present in which the profession can monitor individual lawyers’ understanding of their ethical obligations in many environments. McCabe13 is not the only example of a major failure in ethical consciousness. The cases described below add understanding to efforts to limit their repetition by encouraging greater ethical (and not just rule) consciousness in lawyers.

2.2.1 James Hardie Industries A long-established asbestos products manufacturer, James Hardie Industries, continued to mine the fatal fibre for decades after it became aware of the toxic properties of asbestos dust, all the time accumulating a future liability to its workers and consumers whose exposure years earlier was enough for them to slowly and silently incubate the fatal lung diseases of asbestosis and mesothelioma. Eventually, the corporation could not hide the moral and increasingly legal obligation to compensate those who had begun to die from these diseases. Tens of thousands of victims were, and still are, projected to die slowly and painfully. Faced with an AUS$1.4 billion compensation payment to its past and future victims, James Hardie set up a local (Australian-based) compensation fund with just under $300 million in assets. Simultaneously, the corporation tried to evade responsibility for any additional compensation payments – that is, the difference between $300m and $1.7billion – by moving its corporate headquarters to the Netherlands in 2001. The intention of the offshore move, conceived by Hardie’s CEO and Company Secretary/in-house corporate counsel, was also to reduce tax, but the two executives wanted to ensure that the newly headquartered Netherlands parent company would not be legally responsible for the ‘debt’ of the under-funded local compensation fund. A public uproar resulted and a Commission of Inquiry found that while the two Hardie executives were primarily responsible for the deception, mega-firm Allens Arthur Robinson (Allens) was also strongly criticised for tacitly assisting the company to move its headquarters, 12 For example, the ethics management systems increasingly required of incorporated legal practices. See Susan Saab Fortney, ‘Tales of Two Regimes for Regulating Limited Liability Law Firms in the US and Australia: Client Protection and Risk Management Lessons’, (2009) 11 Legal Ethics 230. 13 [2002] VSC 73.


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but without raising any moral objection to the manoeuvre. During the enquiry, Allens were asked why they had not stood back and asked themselves what they should be advising their client to do. Allens responded to the effect that that they were advising their client on the letter of the law, no more and no less.14 To the Commission at least, legal advice simply to comply with the letter of the law when the wider social context called out for attention was ethically querulous. Put colloquially, it offended the ‘smell test.’ This was the nub of a major problem in global legal ethics then and now: do corporate lawyers stick to a minimal legality or do they have wider social obligations where an ethically suspect manoeuvre is about to occur? Or, to put it more directly, can corporate lawyers be assessed on their overall performance with ethical as well as financial indices? Equally as important for corporate lawyers’ ethics was the issue of Allens’ attitude to its client once the firm became aware of the company’s real intention. Although just the agent of the client engaged to organise a foreign incorporation, it is unlikely that at some point, Allens did not at least consider the moral choices of the Hardie’s Board. How is it that the firm decided not to withdraw its services when Hardie’s preferred final solution became clear to them? All directors of James Hardie, its CEO and its in-house corporate counsel, faced civil penalties after proceedings were launched by the corporate regulator in New South Wales alleging deceit of the stock market regarding the under-provision of the compensation fund.15 All of them were subsequently found to have breached their directors’ duties and were banned for at least five years from directing a corporation,16 but no professional disciplinary proceedings were commenced against Allens’ partners, who have tacitly relied on the ‘professional role’ exculpation of advice and agency.17

2.2.2 AWB Limited Throughout 2006, the Australian community was increasingly preoccupied with the efforts of the national monopoly wheat exporter, AWB Limited, to pretend it had not been corrupted by Saddam Hussein’s former regime in Iraq in order to sell wheat to that country. If it were not for the scrutiny of Canadian wheat exporters, who correctly suspected that the Australian company was deceiving the United Nations and breaching its international obligations to avoid paying bribes, nothing would have come to light. AWB’s executives pretended for several years that 14 Richard Ackland, ‘Irresistible Charms’, 30 September–6 October 2004, Business Review Weekly, Sydney, 48–50. 15 New South Wales, Special Commission of Inquiry into the Medical Research and Compensation Foundation, Report, 2004. A succinct history of the James Hardie affair, up until the appointment of David Jackson QC to investigate the matter, may be viewed in the Australian Parliamentary Library at <www.aph.gov.au/ library/pubs/rn/2004–05/05rn12.htm> at 22 November 2005; Marcus Priest, ‘ASIC Seeks Bans for Hardie Asbestos Directors’, The Australian Financial Review, Sydney, 16 February 2007, 1. 16 Marsha Jacobs, ‘Fines and Bans for Hardie Directors’, 21 August 2009, The Australian Financial Review, Sydney, 6. 17 See Chapter 3.4, ‘Strengths and weaknesses of the dominant approach to legal ethics’.

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no bribes had been paid and that as individuals they had done nothing wrong. Action against them proceeded only slowly. When the Australian Government could no longer claim that there was nothing wrong inside the corporation, it set up the Cole Commission of Inquiry. Cole excavated the layers of corporate deceit and made impressive findings against AWB executives, but those executives and in-house lawyers continued to deny wrongdoing and worked actively within a paradigm which assumed that the corporation and their own interests were synonymous. They found the perfect strategy: exploit legal professional privilege to frustrate all investigations. And that strategy continues today. AWB was condemned by the enquiry for its comprehensive deception of the United Nations18 and its in-house corporate counsel was criticised for misleading the corporation’s CEO by allowing him to approve a wheat contract on a false basis.19 As Hall and Holmes later commented in relation to the ability of AWB’s in-house lawyers to (psychologically) rationalise their behaviour as acceptable: Where lawyers over-identify with their client’s commercial world view and convince themselves that their role is primarily to provide ‘technical’ advice on the matters before them, willful or unintended ‘ethical blindness’ can result.20

A series of civil claims against the former CEO of AWB by the Australian corporate regulator have been fiercely contested and remain unresolved. Meanwhile, AWB has rebuilt itself as a powerful corporation, well able to afford a continuing strategy in the Federal Court asserting that its communications with its lawyers, even after the enquiry concluded, are privileged. These claims have extended to ridiculous assertions, made in court by more lawyers for AWB that the two Federal agencies pursuing the corporation cannot share information with one another because of the effect on the corporation’s right to privilege.21 The psychological process of AWB’s own rationalisation of its past bad behaviour 22 continues, as does the murky relationship between the corporation and its lawyers. Although the Federal Court has seen through and rejected these spurious claims of privilege on several occasions, the strategy of delay succeeds, with AWB recasting its past illegal activities only as ‘legacy issues.’23 Meanwhile, efforts by Federal agencies to pursue criminal cases against the corporation or its former officers are losing momentum as the political will to pursue the company dissipates. 18 Australia, Inquiry into Certain Australian Companies in Relation to the UN Oil-for-Food Programme (The Cole Commission), Report, 2006, Vol 1 [7.42] Legal Professional Privilege; Vol 4 [31] Findings: AWB and Associated Persons. 19 ibid, Vol 4, Findings, 208, [31, 261]. 20 Kath Hall and Vivien Holmes, ‘The Power of Rationalisation to Influence Lawyers’ Decisions to Act Unethically’, (2008)11(2) Legal Ethics 137, 139. 21 David Marr, ‘Dodging the Bullets’, The Age, Insight, Melbourne, 7 March 2009, 6. 22 Kath Hall and Vivien Holmes, op cit, 137. 23 ibid.


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2.2.3 White Industries v Flower and Hart Perhaps the most powerful Australian case of lawyers over-identifying with their client arose over a decade ago in Queensland. Flower and Hart, a well-established Brisbane firm of solicitors, in conjunction with a senior advocate, Ian Callinan QC, acted for a property developer in financial trouble and who needed to buy time in the hope of avoiding payment on a multimillion debt. Together, they devised an immoral strategy to gain time for the company by frustrating a major creditor, a construction company that had built a shopping mall for the developer and wanted to be paid. This strategy involved the developer corporation suing the construction company for fraud on grounds which both the advocate and the instructing solicitors (attorneys) knew were totally unsustainable. Justice Goldberg of the Federal Court of Australia found that the fraud proceedings had no real prospects of success and, since they were designed only to cause delay, were an abuse of process.24 The judge considered the activities of the two lawyers to be reprehensible, basing his decision on a paper trail which included the written advice from Callinan to Meadows (the Flower and Hart partner acting for the developer) in which Callinan had warned Meadows that the proposed action lacked credibility, but suggested they proceed in any event. The trial judge was affirmed on appeal to the Full Federal Court,25 but there was no reaction by the then conservative Australian Government, which had in the meantime appointed Callinan to the highest Australian court (the High Court of Australia) and wanted no scrutiny of the propriety of its decision.26 Critical comment on the ethics of the newly appointed judge was aired on the national public television program Four Corners and the Law Council of Australia called for a judicial investigation. Both were met with silence. No professional action was taken against Meadows either. On the contrary, his local bar association, the Queensland Law Society, appointed him to chair its Professional Standards Committee. To this day there has been no formal attempt to review the impact of these lawyers’ conduct upon community confidence in the justice system.27 2.2.3.1 Consequences for law societies In the Australian context, these major cases and their many predecessors have had a subtle consequence for the Australian profession. They did not directly implicate law societies and bar associations in misbehaviour, but they did condition and continue to recondition communities to treat lawyers with suspicion. Implicitly, when other problems with lawyers’ ethics emerge, governments are 24 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. 25 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773. 26 For a discussion of the professional fallout from this case, see Damian Carrick, ‘Justice Ian Callinan; Image Control’, The Law Report, 1 September 1998 <www.abc.net.au/rn/talks/8.30/lawrpt/lstories/lr980901. htm> at 1 January 2007. 27 However, the Law Council’s model rules of conduct now prohibit practitioners from alleging fraud without a proper basis for their allegation. See Law Council of Australia, Model Rules of Professional Conduct and Practice, 2002, R 16.2, ‘A practitioner must not draw or settle any court document alleging criminality, fraud or other serious misconduct unless the practitioner believes on reasonable grounds that: 16.2.1 factual material already available to the practitioner provides a proper basis for the allegation.’

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able to impose quite major change on the profession without social opposition. For example, significant overcharging and law society mishandling of compensation for lawyers’ thefts were responsible for loss of professional autonomy in several jurisdictions. The Queensland Law Society was severely damaged both by a significant case of lawyer theft28 and by its failure to prosecute a firm involved in gross overcharging,29 permitting a new and vigorous regulator to take over its complaint handling role.30 Further south, the Tasmanian Law Society earned the determined opposition of the Tasmanian Attorney-General for its apparent failure to deal with a mortgage-financing firm that lost millions of its clients’ funds.31 Even the powerful Law Institute of Victoria was on the political ropes and compelled to accept a co-regulatory model after allowing its client (fidelity) compensation fund to go into deficit.32 Yet Australian law societies have learned from their setbacks. Having lost some regulatory authority they are more attuned to the risks of inattention to ethical issues. They seem to be more appreciative that increasing client dissatisfaction with individual lawyers, rather than just lawyers in general, is profoundly destabilising; not just for the profession, but also, potentially, for the broader community. Law societies have always commissioned their own studies and surveys from consultants as to how lawyers are perceived by the community,33 but recently they are implementing ethics discussion programs and commissioning studies designed to improve legal ethics education.34 In taking these initiatives, they have a subtle advantage over regulators in improving ethics. Their more intimate knowledge of community perceptions and of the subtleties of practice environments, as compared to that of more detached regulators,

28 Adrian Evans, ‘Queensland Fidelity Compensation 1990–2004: The End of the Money Tree’, (2004) 23(2) University of Queensland LJ 397. 29 Reid Mortensen and Linda Haller, ‘Legal Professional Reform in Queensland’, (2004) 23 University of Queensland LJ 280, 287. 30 John Briton is the Legal Services Commissioner in Queensland. See <www.lsc.qld.gov.au> at 13 December 2006. 31 Linda Haller, ‘Discipline vs Regulation: Lessons from the Collapse of Tasmania’s Legal Profession Reform Bill’ (2005) 12 E Law – Murdoch University Electronic Journal of Law [1] at <www.murdoch.edu.au/elaw/ issues/v12n1 2/Haller12 1.html> at 12 July 2006. 32 In the Victorian Kennett Government era (1992–99), the profession-controlled mechanism to finance client compensation for defalcation became technically insolvent (see AH Evans, ‘The Development and Control of the Solicitors Guarantee Fund (Victoria) and Its Ethical Implications for the Legal Profession’, LLM, Monash University, 1997). The then Attorney-General, Jan Wade, spearheaded a new Legal Practice Act 1996 (Vic) which replaced self-regulation of theft compensation and complaint handling with a co-regulatory model. When a sympathetic Labor Government came to power in 1999, the principle of co-regulation was not entirely undone. The subsequent Legal Profession Act 2004 (Vic), which commenced on 12 December 2005, brought in a system of external complaint handling which allowed much of the primary investigation process to be referred back to the profession. 33 See, for example, Reark Research Pty Ltd, Attitudes to the Legal Profession in Victoria, March 1982; HJ Campbell Pretty and Assoc, The Public Image and Standing of the Legal Profession in Victoria, February 1987; Roy Morgan Research Centre Pty Ltd, The General Public’s Perception of the Standing of Solicitors in New South Wales, December 1989; E Skondaki and CF Willis, Law Society of England and Wales Research and Policy Planning Unit, Public Use and Perception of Solicitors’ Services, 1989. 34 See, for example, the Law Institute of Victoria’s Designated Ethics Practitioner (DEP) who will handle in-house ethical queries in participating firms and attend peer review sessions, known as the Ethics Liaison Group (ELG), <www.liv.asn.au/regulation/ethics/about/ethics-Ethics-5.html> at 8 December 2006; Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’, Section 3: The Challenge of Ethical Assessment, The Law Society of England and Wales, February 2009, unpublished.


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can allow them to be more targeted and effective in improving their members’ behaviour.

2.3 North American experience: Over-zealous and over-dependent North American cases are clearly too numerous to fully address, given the breadth and depth of those jurisdictions. There are however representative cases and issues, some too well-known to require detailed retelling, which establish the dominance of over-zealous or over-dependent behaviour and which may in part be a consequence of the still highly influential, rule-based approach to legal ethics. If this summary characterisation has any substance, then in North America also there is a case for ethics assessment to moderate rigorous loyalty to the professional role.

2.3.1 Curry, Crossen and Donohue Consider this US example of client–lawyer over-identification: a notable Massachusetts case which involved very experienced and respected attorneys prioritising their client’s interests over justice to such an extent that they were eventually disbarred.35 The sorry tale began with the not uncommon story of a family-owned corporation that, over time, split into separate lines of descent. Two branches of the family fell out, with one branch repeatedly failing to persuade Judge Maria Lopez that its interests in the corporation had suffered at the hands of the other branch of the family. The ‘defeated’ branch nevertheless had significant financial means and engaged three new lawyers to examine the situation. These three later suffered professional excommunication for a strategy that involved an oppressive investigation of everything and anything about the judge herself that might indicate a flaw in her character or approach to decision making (or that of those surrounding her within the court) and which might allow the earlier adverse decisions to be reopened and overturned. While one of the three (Curry) was quite corrupt, the older two were not na¨ıve, had no disciplinary histories and no obvious reason to engage in conduct that they must have realised was perilous. Very experienced in practice, one had been an Assistant District Attorney and another was, early in his career, an assistant to President John F Kennedy, rising to Presidency of the Massachusetts Bar Association. 35 See Michael Frisch, ‘Zealousness Run Amok’ [2007] 20 Geo J. Legal Ethics 1036. The substantive facts are reported at Board Memorandum, Bar Counsel v Curry, Crossen and Donohue, BBL File Nos. C1–97-7602, C1– 97-0589, C1–97-(9)589 (Mass. Oct 16, 2006). Another major example of excessive zealousness is the case of a prosecution attorney whose witness tampering nearly derailed the trial of an alleged 9/11 conspirator: Felicia Carter ‘Court Order Violations, Witness Coaching and Obstructing Access to Witnesses: An Examination of the Unethical Attorney Conduct that Nearly Derailed the Moussaoui Trial’, (2007) 20 Geo. J. Legal Ethics 463.

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With their clients’ consent, all three sought to prove that Judge Lopez’s adverse judgments in the earlier cases had not been written by her, but by her clerk or that, if written by her, they were the product of prejudgment arrived at before the evidence was concluded. Their methods were extraordinary, extending to the surreptitious voice-taping of the judge’s former clerk. They interviewed him under the fictitious pretext of considering him for a prestigious legal position. In the course of responding to their questions about his ‘writing style’, he made unwise but equivocal statements about his drafting of Judge Lopez’s judgment in one of the prior cases. Depending on the part of the interview concerned, the clerk either claimed authorship for himself or claimed to have drafted the judgment with the judge’s input, but in any event asserted the common reality (and legitimacy) that it was not uncommon for clerks to draft judgments. The deception did not in fact deliver the necessary evidence against the judge, but where failure should have made these highly experienced and respected lawyers appreciate that they were hopelessly over-dependent and going downhill rapidly, they could see nothing of the sort. Fatally, they tried to blackmail the clerk unless he cooperated in their efforts to disqualify Judge Lopez. The clerk was then in sufficient fear of his future career to go to the FBI. The FBI successfully placed a recording device on him in order that, in his subsequent conversations with the attorneys, evidence could be obtained of their attempts to subvert the judicial process. When prosecuted for misconduct, a variety of arguments was raised by the lawyers and dismissed by the disciplinary board. Significantly, one of these arguments illustrated the extent to which the very role of lawyers had been perverted by their actions. They argued that regardless of any other consideration, it was acceptable for them as lawyers in a civil case to conduct undercover investigations using deception in order to assist their clients: in other words, that their zealous advocacy of their client’s interests was itself a defence. In the case of the most senior lawyer (the former aide to President Kennedy and Massachusetts Bar Association President), the evidence suggested that within his very narrow frame of reference, he genuinely believed that he had the right to take this position in order to justify active deception and blackmail-related threats. In the end, each of the lawyers involved were either disbarred or, in the case of the oldest, denied the right to practise for three years. The most charitable interpretation of their behaviour was that they suffered from a complete misunderstanding of reputable advocacy. The more likely explanation is that everyone knew exactly what they were doing and that mixed motives of greed and power were in control. Regardless, appeals to ‘role morality’ as a defence have continued and are not isolated to the United States. The case of the Canadian lawyer Ken Murray, who was charged with obstruction of justice for failing to turn over damning evidence of the guilt of his client,36 illustrates a pervasive 36 Richard Devlin and Porter Heffernan ‘The End(s) of Self Regulation?’ (2007–08) 45 Alberta LR 169, citing Austin M Cooper, ‘The Ken Murray Case: Defence Counsel’s Dilemma’ (2003) 47 Crim. LQ 141, at 141–2. In


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ethical malaise that crosses the United States–Canada border.37 And yet these serious cases are themselves dwarfed by the financial implications of the most far-reaching breaches of legal ethics over the last decade.

2.3.2 Tax products and Enron fallout A lucrative and still recent phenomenon within some of the largest US law and corporate accounting firms has involved lawyers and quasi-lawyers marketing a range of ‘tax products’ of doubtful legitimacy, followed by the spurious legitimising of these products with opinion letters which guaranteed their compliance with the US tax code. Gordon reminds us that it did not matter that most of these products would later be disallowed by the Inland Revenue Service (IRS), because the law and accountancy firms involved had in the meantime made millions. Clients also were not especially perturbed because the fines later levied on them were far less than the tax evaded, due to the lax enforcement processes of the IRS. One law firm tax partner earned his firm $23m in fees after issuing 300 of these opinion letters.38 These abuses were possible because clients and their lawyers tacitly conspired together to defeat the national revenue. However, as Gordon has also pointed out, these lawyers were no bottom feeders: the tax partner mentioned worked at KPMG and the law firm Sidley and Austin.39 Tax deceit and evasion ought to rank as the most insidious among lawyers’ ethical failings because their effect is to undermine the provision of so many public goods and services, but deceit of the IRS does not achieve this status because of a certain public sympathy for the whole notion of evasion, providing the ‘victim’ is only a public institution or organisation. That is not the case with reaction to moral failure which directly threatens private wealth, as occurred with Enron40 and its lawyers. The continuing US experience with the Enron moral fallout and the implications for trust placed in lawyers caused by the Sarbanes–Oxley the end, Mr Murray was acquitted of the obstruction charge, with the trial judge finding that although his actions had the tendency to obstruct justice, he lacked the required element of intent. 37 In December 2005, one of Canada’s leading lawyers, George Hunter, a senior partner at Borden Ladner Gervais in Ottawa, stepped down from his posts and took a leave of absence from his firm, citing the breakdown of his marriage and his concern for the wellbeing of his children. He was then Treasurer of the Law Society of Upper Canada and the president of the Canadian Federation of Law Societies. Nine months later, it came to light that the Law Society was investigating him for potential breaches of the Code of Ethics in relation to a long-term sexual relationship he had had with a client whom he represented through a lengthy divorce. Ultimately, Mr Hunter was charged with misconduct in relation to his actions, and handed a two-month suspension as a result. See Cristin Schmitz and John Jaffey, ‘Hunter Quits as Law Society of Upper Canada Treasurer’, Lawyers Weekly (16 December 2005); Cristin Schmitz, ‘Law Society of Upper Canada Investigates Former Treasurer’, Lawyers Weekly (15 September 2006); Cristin Schmitz, ‘Ex-Law Society Treasurer Gets Two-Month Suspension after Affair with Family Law Client’, Lawyers Weekly (16 February 2007). 38 Robert W Gordon, ‘Professionalisms Old and New: Good and Bad’, (2005) 8 Legal Ethics 23, 24, citing Lynnley Browning, ‘Top Tax Shelter Lawyers No Longer at a Big Firm’, 30 June 2004, New York Times, New York, C1 at C4. 39 ibid, p 25. 40 There is no real sign that the business or professional reaction to the Enron phenomenon has produced a lasting improvement in US corporate ethics. Bethany McLean, co-author of a book outlining the current state of that ethical culture (Bethany McLean and Peter Elkind, The Smartest Guys in the Room, New York, Fortune (2003)), considers that, despite Sarbanes–Oxley compliance agendas, examples of further companies seeking to ‘. . . not violat[e] the letter of the law, but violat[e] the spirit,’ remain common. See Leon Gettler, ‘Just a Degree of Smoothing Means More Enrons Will Come: Author’, The Age, Business, Melbourne, 3 October 2005, 3.

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legislation41 has preoccupied much recent legal ethics discussion.42 More recent and far more severe financial collapses43 have served to strengthen this distrust, even though the latest examples have yet to focus explicitly on the lawyers who signed off on the structures used to validate these deals. The current US debate around public ethics is reminiscent of the way that the Watergate scandal of the 1960s prompted a radical rethink of US legal education,44 but unlike Watergate, for which former President Nixon eventually took public responsibility and resigned, there is not at present any great sense of collective contrition among US lawyers for the attitudes of Enron’s lawyers: Vinson and Elkins LLP. A comprehensive listing of US corporate lawyers’ misconduct45 shows that Vinson and Elkins’ actions are only the most obvious example. Overwhelmingly, the lawyers caught up in these cases were at pains to argue that ‘we did nothing wrong’, a strategy copied in many other jurisdictions in similar cases. This attitude of denial (or pretended denial) of culpability has too often prevented progress in improving ethics. Although it is perhaps facile to say so, without some sense of contrition, there can be no healing. Lawyers caught in the over-zealous act are unfortunately too comfortable with denial and are able to effectively deflect any need for change because leading law firm culture still accepts, perhaps even secretly admires, individual, non-accountable lawyers’ recklessness. Evasion of ethical consciousness remains the price of rainmaking, technical innovation and financial success. As William Simon observes in relation to such single-minded lawyers, they are quietly tolerated inside some of the large firms, which can nurture them too effectively. What appears to be unwelcome in such organisations is any internal reflective process that might throw light on how bad decisions can be kept in the dark: The evidence for the thesis that self-conscious group-deliberation produces better decisions in the sphere of legal practice is mostly anecdotal and indirect, but it is striking. The thesis is a major tacit theme of Milton Regan’s Eat What You Kill, a riveting account of the misconduct of a Milbank Tweed bankruptcy lawyer that resulted in his conviction for perjury. The lawyer was a loner, and the firm’s structure was highly compartmentalized. The key decisions seem to have been made tacitly and unreflectively.46

Until positive incentives such as ethical assessment emerge to encourage collaboration and accountability in decision making (and useful disincentives likewise, 41 H.R. 3763, 107th Cong. 2002; See ‘Symposium: 20 Years of Legal Ethics: Past, Present and Future’, (2007) 20 Geo. J. Legal Ethics 321, 337. 42 Enron’s lawyers, Vinson and Elkins, have received considerable criticism from US legal ethicists. See Deborah L Rhode and Paul D Paton, ‘Lawyers, Ethics and Enron’, (2003) 8 Stan. J. L. Bus. & Fin. 9. 43 See, for example, the coverage of the global financial crisis by the Financial Times at <www.ft.com/ indepth/global-financial-crisis> at 4 January 2010. 44 See, for example, Arnold Rochvarg, ‘Enron, Watergate and the Regulation of the Legal Profession’, (2004) 43 Washburn LJ 61, 67. 45 Eli Wald, ‘Lawyers and Corporate Scandals’, (2004) 7 Legal Ethics 54. 46 William H Simon, ‘Past, Present and Future of Legal Ethics: Three Comments for David Luban’, (2008) 93 Cornell Law Review 1365, at 1374, citing Milton C Regan Jr, Eat What You Kill: The Fall of a Wall Street Lawyer, The University of Michigan Press, Ann Arbor, 2004.


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to promote cooperation with such assessment), the dominant and competitive culture of the individual law firm will promote rather than curtail the lawyeradventurer.

2.3.3 Macumber to the Torture Memos Another factor supports risk-taking inside US legal ethics in particular: the dominance of the ABA Model Code of Professional Responsibility.47 This code and its various predecessors still lie at the heart of a systematic approach by the US profession to prescribe appropriate and proscribe inappropriate ethical behaviour in great detail, leaving less room for discretion in ethically challenging situations than might appear to be wise. While there is significant effort across US jurisprudence to argue for contextual interpretation of the Model Code in order to limit its rigidity,48 this set of rules is still designed to relegate notions of ethical complexity to the margins in the well-intentioned hope that lawyers and their clients will be safer if they are told what they can and cannot do. It is a great irony that the commendable desire by the ABA for certainty in the Model Code has led to moral meltdown for lawyers on a stage far larger than the small Australian jurisdictions. Two stark reminders, one now over 30 years old but the other very recent, remind us of this vulnerability. In the first example, the limits of client confidentiality were at issue. In the 1976 Macumber49 decision the Arizona Supreme Court affirmed the actions of a lawyer who decided to remain silent about the guilt of his deceased client for murder, in compliance with his ethical obligation of confidentiality under the Model Code, even after another person had been convicted and imprisoned for that offence. Macumber exemplified the earlier contest between the competing claims to superiority of law or morality and denied the otherwise appealing notion that moral discourses must dominate those of law.50 Much more recently, and with much greater publicity and international significance, the notorious ‘Torture Memos’51 saw the light of day. On 2 August 2002 the Office of Legal Counsel in the US Department of Justice issued what has since become known as the first ‘Torture Memo’, a document which effectively legalised the torture of prisoners held for interrogation in the so-called War on Terror by redefining torture only as something that inflicted lasting pain or disability, and therefore permitting transient pain or inadvertent 47 American Bar Association, Model Code of Professional Responsibility, 1970, <www.abanet.org/cpr/mrpc/ mcpr.pdf> at 12 May 2009. 48 Arousing memories of the perceived failures of the earlier 1908 Canons of Professional Responsibility, which were said to focus too much on principles, allowing unscrupulous lawyers to easily evade any or sufficient censure. See Ted Schneyer, ‘How Things Have Changed: Contrasting the Regulatory Environments of the Canons and the Model Rules’, American Bar Association Centre for Professional Responsibility, (2008) Journal of the Professional Lawyer 161. 49 State v Macumber, 544 P.2d 1084, 1087 (1976). 50 Although, as Simon has pointed out, it is possible to conceive of legal arguments that include notions of moral virtue. See Simon, op cit. 51 Phillipe Sands, The Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, Palgrave Macmillan, New York, 2008.

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consequences, such as the death of a person being so ‘interrogated’.52 This and subsequent memos, which infamously provided a veneer of justification for the near-drowning technique known as ‘waterboarding’, carried on from Macumber a tradition of technical definition of ‘the rules’ that could deny an ordinary construction, but went much further than Macumber in order to achieve more sinister ends. Macumber of course was a decision taken in good faith. Since then numerous ethics decisions based on the Model Code have been in the same mould, but the technique of ‘hair splitting’ to subvert a moral position reached a zenith in the Torture Memos. As is often the case, the Justice Department lawyers involved were not prosecuted criminally, and although bar association disciplinary prosecutions were recommended by a 2009 Justice Department report,53 these have not occurred either. But it is now clearer that contextual understanding and the exercise of judgment is necessary if the harsh effects of too literal a reading of conduct rules54 are to be reduced. Together, these US cases are eloquent testimony to a continuing tendency among practitioners in all jurisdictions to look first and last to the rules for ethical guidance and to do so without sufficient awareness of and perhaps even tolerance of, complexity and morality. Ethics awareness and decision making needs to move beyond submission to formal rules and include some further mechanism to unmistakably prioritise the notion of complexity and ‘right’ action. With disciplinary proceedings only rarely commencing in cases involving the largest firms and otherwise elite lawyers, there is a need for a pre-emptive administrative approach rather than a consequential response to improving legal ethics. Embracing a more comprehensive and realistic theory of legal ethics, and assessing lawyers for their comprehension of that theory, will help to achieve that goal.

2.4 Conflicting loyalties inside large UK and US firms The UK profession has its share of the more commonplace scandals,55 and some of these played a role in the loss by the Law Society of England and Wales of regulatory power to the Solicitors Regulation Authority (SRA) as a consequence of the Clementi Review.56 But these developments are reflected in many jurisdictions. Of equal importance to the assessment of legal ethics are the problems 52 Robert W Gordon, ‘Professionalisms Old and New, Good and Bad’ (2005) 8(1) Legal Ethics 23. 53 David Johnstone and Scott Shane, ‘Torture Memos Will Not Result in Prosecutions’, 6 May 2009, The New York Times, New York, 1 and 15. 54 See, for example, William H Simon, ‘Ethical Discretion in Lawyering’ [108 Harvard L. Rev. 1083 (1988)] reprinted with permission in Susan Carle (ed) Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader, New York University Press, New York, 2005. 55 For example, allegations of salacious behaviour inside a major City law firm: Robert Verkaik, ‘Sex and Briefs: Novel Sets Legal Circles Spinning’, The Independent, London, 25 August 2005; Steve Bloomfield, ‘Sex and Law Novel Tops Sales Charts’, The Independent, London, 28 August 2005. 56 Review of the Regulatory Framework for Legal Services in England and Wales, Final Report, London, 15 December 2004. See <www.legal-services-review.org.uk/content/report> at 10 December 2006.


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with underlying ethical behaviour, particularly as it concerns a variation on overzealous identification with a client’s interests or over-dependence: that is, the desire by many of the largest firms to (zealously) represent both sides of the fence. This desire is not exclusive to the United Kingdom and might more properly be described as one of self-interest rather than client-interest, but the issue of conflicting loyalties has received considerable attention in that jurisdiction and has an impact on assessment issues. Some of the largest UK firms appear to consider themselves to some extent beyond conventional regulatory reach. Cogent empirical evidence exists of their apparent disregard of Law Society conflict of interest rules. As observed by Nancy Moore57 and documented in considerable empirical detail by Janine GriffithsBaker,58 ‘. . . it is remarkable the extent to which the large City [of London] Firms openly acknowledge that while they are bound by the Law Society rules, they are nevertheless justified in ignoring them in their day-to-day practice.’59 Further, the largest firms justify their disregard of the rules with a similar view of the Law Society generally and a judgment, which they are prepared to see recorded, that there is little risk of disciplinary action because clients will rarely complain to an external body in cases of alleged conflict of interest.60 The annoyance of these mega-businesses with the current unified system of regulation has reached the point where some are now openly calling for a separate regulatory framework, with special conflicts rules, for the largest firms.61 The contradictory blindness of these firms is of particular importance to the issue of underlying ethical awareness (and perhaps their reaction to assessment of their lawyers’ ethics): their selective disregard of the current formal conflicts rules means that ultimately they must ignore their clients. Although they say otherwise and would always at least consider whether a major client’s sensitivities (that is, their expectation of propriety and loyalty) would be threatened by any decision to represent another client with commercially opposed interests,62 that consideration can only be superficial. The logic of their position is unsustainable because separate clients must eventually have separate interests and forensic examination as to the point in time at which such separation occurred will always be contested. And it does not help that their clients may tolerate this ‘Emperor’s clothes’ pretence. According to Shapiro, who speaks from a US rather than a UK perspective, some large clients (which means, not smaller clients) may be concluding that

See also Julian Webb, ‘The Dynamics of Professionalism: The Moral Economy of English Legal Practice – and Some Lessons for New Zealand,’ (2008) 16 Waikato Law Review 21–55. 57 Nancy Moore, ‘Regulating Law Firm Conflicts in the 21st Century: Implications of the Globalisation of Legal Services and the Growth of the “Mega Firm”,’ (2004–05) 18 Geo. J. Legal Ethics 521, 532. 58 Janine Griffiths-Baker, Serving Two Masters: Conflicts of Interest in the Modern Law Firm, Hart Publishing, Oxford, 2002. 59 Moore, op cit, p 532. 60 ibid. 61 See, for example, Seminar: ‘The Business of Law: Is there a Better Way to Regulate the Legal Profession?’, 24 February 2009, Allen and Overy, London. [on file with author] 62 Moore, op cit, p 542.

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they could be better represented by lawyers with conventionally hopeless conflicts’ records, because ‘they discover that they are better served by fiduciaries most entangled with conflicts of interest’,63 since the ‘most able individuals and organisational candidates for positions of trust arrive freighted with considerable baggage; independence often comes at the price of inexperience.’64 Despite the critical importance of experience, such clients would appear to be placing a premium on trust of their chosen conflicted lawyer knowing that said lawyer might also be trusted, with equal fervour, by other current or former clients, a proposition which seems logically perilous over the long term. Some large firms appear happy to go along with it, asserting that if their clients know that as clients they are taking a risk, then they (the firms) can acquiesce that there is no effective risk. They can continue in an Alice-in-Wonderland world of bizarre but acceptable contradiction, dependent on the wilful ethical blindness of all involved. Yet the logic of ethics assessment depends expressly on the notion that lawyers’ participation in the justice system will involve individuals’ conscious reflection and a sense of ethical growth. The questionable and circular logic which is used to support some large firms’ conflicted representation suggests that their ethical sensitivities will be both more tangled, less reflective and less open to the scrutiny of assessment, particularly if they were ever to succeed in achieving a separate regulatory framework. And this prediction does not come only from deduction. Kirkland, for example, concludes after an empirical investigation of 22 lawyers in 10 large US law firms that large law-firm lawyers’ ethics are in a pitiful state: Consulting an internal moral compass is foreign to the large-firm lawyers’ habit of mind. As a result, the increasing bureaucratization of legal workplaces poses significant challenges for the viability of traditional notions of professionalism and prescriptions for lawyers’ ethical shortcomings, or for any view of ethics and professionalism that requires a lawyer to consult some internal or fixed moral calculus, separate from the criteria for success in his workplace.65

Consider also this lamentation from a large-firm practitioner: The large firms have very little to do with the practice of law as it was normally understood. These workplaces are combinations of several profit centres in one building(s) under centralised management. Partners hardly know each other, or at all. Profit is not a consideration; it is the sole driving force, the only criteria to measure success. Partners are as ‘good’ as their last quarter. Sometimes, they are no longer partners after one of those quarters . . . [T]he temptation, or worse than that, the common practise in the large and medium firms is to mask such inhumane pressure by inflating time 63 ibid, p 549, citing Susan Shapiro, Tangled Loyalties: Conflicts of Interest in Legal Practice, University of Michigan Press, Ann Arbor, 2002, p 8. 64 ibid, p 9. 65 Kimberley Kirkland, ‘Ethics in Large Law Firms: The Principle of Pragmatism’, (2005) 4 The University of Memphis Law Review 632, 731.


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sheets, undertaking such unnecessary research, exaggerating the need to review everything during discovery, undertaking overzealous due diligence processes, and other practices readers will be familiar with. In other words, we cheat and lie to make ends meet. We act dishonestly as a matter of course. We do it because we have no choice. Everyone else does it to fit within the system. There is no way out . . . Partners are aware of their colleagues’ unhappiness, because they know about their own. However, as long as budgets are met, nobody bothers to inquire (let alone propose an alternative) when a particular partner – as I have recently witnessed – had to replace her rather large entire team twice in a single year. People simply voted with their feet and left quietly en masse.66

Further, ‘quality’ assurance programs as they are ordinarily understood do not automatically guarantee ethical consciousness. It should not be forgotten that the largest firms have had quality mechanisms in existence for some years, yet they keep demonstrating less than ideal ethical behaviour and breaches of trust. Even senior members of the Bar think that the lure of high incomes conflicts with every other value for some lawyers.67 Structural improvements are being made to address the problems in Australia. In New South Wales, Parker et al have noted dramatically lower client complaint levels in practices that have implemented ‘appropriate management systems’ under that State’s Incorporated Legal Practice (ILP) regime.68 And Queensland’s Legal Services Commissioner is pushing ahead in performing ILP ethics ‘audits’ with highly encouraging results.69 These systems include a number of measures designed to improve client satisfaction and reduce unethical behaviour in relationships with clients, but that hope remains tempered by the lack of effective mechanisms to tackle individual lawyers’ ethical development. Significantly, it is possible that individual ethics assessment will support ethical behaviour beyond concerns for client relationships and include ethical obligations to the courts and to the administration of justice. But at this stage any suggestion that size alone equals elite legal practice is unsupportable unless ethics and trustworthiness are omitted from the definition of ‘elite’.70 The continuing international experience from the relatively few cases that have emerged from under the veil of client confidentiality testify to worst-case scenarios, but the wider profession might argue that these matters are no more than that: worst cases, and that the true state of legal ethics is far less grim across the profession as a whole. There are some empirical investigations which cover such territory and have approached the research task with one over-arching question: What do lawyers really care about? 66 Anonymous, ‘Big Firm Partner Breaks Ranks’, Lawyers Weekly, Sydney, 11 November 2005, 3. 67 Susannah Moran, ‘Walker’s Lament’, The Australian Financial Review, Sydney, 21 October 2005, 58. 68 Christine Parker, Tahlia Gordon and Steve Mark, Research Report: Assessing the Impact of ManagementBased Regulation on NSW Incorporated Legal Practices, 2008, Office of the NSW Legal Services Commissioner, Sydney. 69 John Briton and Scott McLean, ‘Incorporated Legal Practices: Dragging the Regulation of the Legal Profession into the Modern Era’, (2008) 11 Legal Ethics 241. 70 Adrian Evans, ‘The Ethics Behind Legal Professional Privilege’, The Australian Financial Review, Sydney, 21 October 2005, 58.

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2.5 Research into lawyers’ ethics While a minority of lawyers reject complaints about the profession as unfair, interviews with lawyers and their responses to surveys confirm a widespread concern about peers’ behaviour. Apart from the US research into lawyers’ ethics already referred to, there are some empirical studies that support the anecdotal concerns of many stakeholders concerning the ethical functioning of the profession. The Australian Lawyers’ Values Study71 was designed to deal with a significant impediment to any effective focus on improving legal ethics: a lack of detailed knowledge about what lawyers themselves value; that is, what do they care about?72 If it were possible to determine what lawyers do care about and to show that what they care about is connected to their actual behaviour, it would be important, in turn, to decide if and how their continued licensing could be monitored and their ethical performance systematically improved. It might even be important to decide in extreme cases if some lawyers’ motivating values were sufficient for the social trust placed in them. The study involved a three-year empirical survey of a large sample (initially, 700 individuals) of the 10 000 plus senior Australian undergraduate law students, at the end of their formal legal education (2001) and in the first two years after they graduated (2002 and 2003). Respondents were exposed to separate ethical scenarios and asked to choose not only what they would do in those situations but also to choose, from a list, which of a number of possible motivating factors most influenced their decisions. Their views were reassessed after they had graduated and entered legal practice, at 12- and 24-month intervals and controlled via their responses in focus groups. The following extract from an early publication describing this research73 explains why the study focused on values rather than ethics: Values have been variously defined and it is important to distinguish between different types of values. Personal values (for example, honesty) can be distinguished from economic, aesthetic and even recreational values. Personal values may overlap fundamental moral values. Thus honesty intersects with the moral values of truth and justice, but is not identical with these concepts. In this research, we focus upon personal values because they allow survey respondents to more closely identify with the questions asked. Values are important here rather than ‘ethics’ as such: the latter, we strongly suspect, are now confused in the minds of many lawyers with mere prescriptive rules of conduct. Accordingly, survey questionnaires which discuss ethics might therefore fail to stimulate the response we are seeking. We define certain important personal values 71 The Australian Lawyers’ Values Study (2001–03) was funded under an Australian Research Council Large Grant to the author as Chief Investigator. 72 As Nicolson and Webb observe, ‘the character and personal values of each lawyer, as a moral agent, cannot be entirely excluded from the equation.’ Donald Nicolson and Julian Webb, ‘Editorial: ‘Public Rules and Private Values: Fractured Profession(alism)s and Institutional Ethics’, (2005) 12 International Journal of the Legal Profession 165, 169. 73 Adrian Evans and Josephine Palermo, ‘Law Students’ Perceptions of Their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2003) 5 Legal Ethics 103. Footnotes relevant to this extract have been omitted from the text for purposes of brevity.


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(for example, honesty, ambition, the need for family security or a desire for justice) as underlying practitioner motivation more keenly than, for example, the fear of sanction or the promise of praise by a law society. The survey which is discussed below places an emphasis upon values as distinct from ethics in a deliberate manner. Values are said to underlie our behaviour and are assumed therefore to have great influence: but they are rarely discussed with any precision. Ethics, while also intended to govern behaviour, have been discussed ad nauseam to the point that they are now regrettably confused with specific rules of conduct. While ethics in the best sense of the word have always been understood as a positive – and we assert that this nexus must be recovered – they are now more often associated with a negative ‘do not’ and may be losing their ability to improve lawyers’ behaviour.74

The following extracts from the longitudinal research,75 which reported on the choices and postgraduate, behaviour-relevant values of respondents over the three-year research interval, show changing responses to reported behaviour (not just intentions), over that period. Figure 2.1 displays the proportion of ‘yes’ responses, expressed as a percentage, in five chosen scenarios for all participants in the three years of the study. Chi Square76 tests were performed on differences between frequency distributions of reported behaviour across the three years of data from sample populations of law students and lawyers. The differences in frequency distributions over time were statistically significant in these five scenarios; that is, the observed differences were not due to chance alone. 100 90 80 70

year 1 year 2 year 3

60 50 40 30 20 10 0 Would agree to work pro bono

Would report the matter

Would not purchase shares

Would not round-up the hours as requested

Would break client confidentiality

1. Pro Bono

3. Reporting Trust Account Deficiency

4. Insider Trading

8. Rounding-up Hours

11. Client Confidentiality

Figure 2.1: Proportion of ‘yes’ responses, expressed as a percentage, in five chosen scenarios (below), for all participants in the three years of the study

74 ibid, pp 105–6. 75 Adrian Evans and Josephine Palermo, ‘Preparing Future Lawyers: Relationships Between Changing Values Over Time and Ethical Behaviour’, (2006) 11 Deakin Law Review 103. Note that this article did not report relevant standard errors, degrees of freedom or Chi Square results, for purposes of brevity in the relevant law journal. 76 A Chi Square test is a statistical test of the so-called null hypothesis, which states that there is no significant (statistical) difference between an expected and an observed result and is designed to rule out the effects of chance alone in relying on a sample to predict what is happening in a larger population. See generally, PE Greenwood and MS Nikulin, A Guide to Chi-Squared Testing, Wiley, New York, 1996.

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1 Pro bono participation

3 Reporting trust deficiency

4 Engaging in insider trading

8 Rounding-up hours on a bill

11 Client confidentiality

You are a new solicitor working in a large commercial law firm. A voluntary public-interest organisation approaches you to work on a prominent test case about women who kill in self-defence. Your interest in this area is well-known. The work would be pro bono and very high profile for you personally but of little interest to your firm. The matter requires a lot of time and work. Your senior partner, however, wants you to increase your billable hours for the firm. The firm does not usually do any pro bono work but there is no actual policy against it. Your time is currently so limited you could only realistically do one or the other. Would you agree to work on the public interest case?

You are a Partner in the firm of AMBD. Your nephew (the son of your elder sister) is an associate in the firm. You discover your nephew has a minor gambling problem and has taken money from the firm’s trust account to cover his debts. Fortunately you discover the problem in its very early stages. Your nephew is now undergoing counselling for his gambling addiction and appears to be recovering. The amount missing from the trust account is relatively small and you are certain could be reimbursed without attracting any attention. Would you report the matter to the local law society?

Despite long hours and a great deal of work, you have been struggling for some months to make ends meet in your first couple of years as an employee lawyer. You have a [student] debt that you would like to clear and a close friend with whom you are very keen to move in . . .’ A corporate client of your firm, for whom you have done some useful work, takes the partner responsible, yourself and others in your section to lunch to celebrate (confidentially) the award of a tender. You know the client is grateful and wants to recognise your contributions to this particular success. The client CEO . . .’ hints about more work and speculates offhandedly that the price of the company’s shares is likely to reflect the win once it is all announced. Would you purchase shares in the company before the public announcement of the tender success?

While on a summer clerkship with a large and well-respected commercial firm, you are (naturally) concerned to make a good impression. It is your second-last year of law school and you are desperate for Articles. The partner supervising you decides to give you some of her files to get ready for ‘costing’. She asks you to total the number of hours which she has spent on each file and, from her harried expression, it is pretty clear that she is concerned to charge out a significant amount on each file. She asks you to ‘round-up’ her hours to the next hundred in each file, saying that, on average, clients are happy because the main thing they demand is quality work. You know that these clients are entirely satisfied with the firm and that your supervisor is not about to debate the issue with you. Would you round-up the hours as requested?

You are acting for a mother of three small children in a divorce and intervention order matter. Your client has previously shown you some old photographs of bruises and marks on the children which she claims were inflicted not by their father, but by her new boyfriend. One of the children now has blurred vision. Your client now instructs you to stop all legal proceedings as she intends to return to the children’s father with her children. You believe the children will be at risk if this happens but you know ‘mandatory reporting’ does not apply to lawyers in your State. Would you break client confidentiality and inform the relevant welfare department of your fears?


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It is immediately obvious that the percentage (as measured on the x axis) of lawyers willing to commit themselves to pro bono activity declined once they entered legal practice. McQueen has observed that pro bono activity in the Australian legal profession is closely related to periods of economic and financial stability.77 This result is therefore particularly disappointing because the years in which the survey was conducted, 2001–03, were periods of relative stability and largesse within the Australian legal profession. Only the nervousness about insider trading translated into an overwhelming number of lawyers who were prepared to act in accordance with ethical precepts. While more lawyers would report a trust account deficiency and would avoid conscious fraud of a client through overcharging, approximately 40% of all year 3 respondents were still prepared to keep a theft secret if their family is involved and to round-up hours on a bill to a significant degree, when requested by a superior. Finally, close to 70% of year 3 lawyers reported that they would choose to break confidentiality if the stakes appeared to warrant it. These lawyers’ views on ethical issues were in great flux in the early years of their professional lives.

2.5.1 Changes in new lawyers’ ethical intentions over time The Australian Lawyers’ Values Study was also concerned to further explore whether certain sub-groups of new lawyers might feel ongoing pressure to behave unethically. To test that possibility, a number of hypothetical scenarios were also used to assess if there were any changes over time which were not due to chance alone: that is, changes between their last year of law school (year 1) and the their second year in legal practice (year 3) that could be related to particular variables such as gender or prior experience of an ethics course. The initial analysis (at 2.5 above) had already indicated that females generally had a more highly developed awareness of ethical function than males78 and that relationship was explored further. The following brief extracts from the longitudinal work79 show increasing pressure on ethical decision-making in the early years of practice: To investigate possible differences, that is, among females as a group and among males as a group, Cochran Q80 tests were performed on their separate responses. Where there were significant differences between males and females across years 1 to 3, percentage ‘yes’ responses are presented in Figure 2.2:

77 Rob McQueen, ‘The Darker Side of the Profession?’ (2001) 19 Law In Context 54, 61. 78 Evans and Palermo, op cit, n 73. 79 Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252. 80 A Cochran Q test provides a method for testing of differences between three or more matched sets of responses. It is particularly useful for measuring the (statistical) significance of changes in responses over time.

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male female

Behavioural indication (yes response)

100% 90% 80% 70% 60% 50% 40% 30% 20%

Yr3

Yr2

Yr3

Scenario 11 Yr1

Yr2

Yr3

Scenario 10 Yr1

Yr2

Yr3

Scenario 8 Yr1

Yr2

Yr3

Scenario 4 Yr1

Yr2

Scenario 2 Yr1

Yr3

Yr2

Scenario 1 Yr1

10% 0%

Note: ‘Yes’ scenarios denote: 1. Would take on pro-bono case

2. Would act for the corporation

8. Would round-up hours 4. Would 10. Would refer purchase shares a colleague for counselling

11. Would break confidentiality and inform welfare

Figure 2.2: Percentage of male and female responses to scenarios in years 1–3

2 Preferring to act for a corporation over an old friend

10 Referring a colleague for counselling

You are a junior associate of a small commercial law firm with a niche reputation in the area of privatisation tendering processes. Your firm has been tentatively approached by a significant corporation to help them draft their tender submission for a privatised public transport contract. Your firm would almost certainly gain an enormous amount of new work from this corporation if you were to take them on as a new client. At the same time you become aware that a close friend, who has not previously been a client, is about to request and will expect your help with their tender for the same government contract. You owe a great deal to this friend at a personal level. However, in your opinion the potential new corporate client is more likely to be successful in their tender due to size and experience. The work this corporation would generate far outweighs that of your old friend. The choice is yours alone in this case as you have been head-hunted by the firm to take responsibility for developing this area of the practice. Thus in this situation it is of no assistance to decide solely on the basis of first-come first-served. Would you act for the corporation and therefore detrimentally affect the relationship with your old friend?

You and your best friend founded a practice together 10 years ago. The practice has been moderately successful. Your friend (and Partner) has just been through a complex and bitter divorce. Since he has been separated from his family his only interest is work. You have begun to notice personality changes which lead you to question his mental stability. His advice in some matters has become legally questionable and may be in breach of professional standards. He has rejected any suggestion of needing a break or some professional treatment. Would you ask the local law society or regulator to arrange to counsel him?


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These results [show] that females were generally more ethically responsive than males. However, for females as a group and males as a group, the position is more complex. Thus females were more likely to reinforce their decisions about taking on a pro-bono case in year 2, and then to change their minds about that in year 3 and decline the opportunity. The same trend was true for responses related to refraining from acting for a corporation and also the scenario concerned with refraining from purchasing shares in an ‘insider trader’ situation. In Scenario 10, responses shifted significantly over time for both males and females, with both groups changing their minds from initially indicating they would refer the colleague in year 1, to suggesting they may not in year 2, and then reverting to year 1 responses in year 3. Finally, there were significant differences between responses for females on Scenario 11 according to Cochran Q tests, with a steady reinforcement of the decision to breach confidentiality across the three years of the study.81

It seems that males and females are both on ethically rocky roads after admission to practice, with sufficient variation to reinforce the initial findings that new Australian lawyers have little observable consistency in their responses to challenging ethical situations.

2.5.2 The effect of prior completion of an ethics course At the time of this study both the Australian judiciary 82 and the academy 83 were voicing the need to improve legal ethics education in law schools. An obvious issue to investigate in this study was therefore that of any connections between legal ethics courses and improved attitudes to legal ethics. Comparisons over time were performed for groups of lawyers who had or had not completed an ethics course during the academic phase of their legal education. Figure 2.3 presents Cochran Q test percentages of ‘yes’ responses for scenarios where significant differences were observed. Figure 2.3 shows that the majority of lawyers who had taken an ethics course (compared to those who had not), would act for the corporation in preference to their friend [in year 1 responses to Scenario 2]. However, by year 3 they had reversed themselves and would have preferred to act for their friend rather than a corporation. The same was true for responses to Scenario 4 (related to lawyers’ significantly decreased interest in purchasing shares through insider trading; and finally also in Scenario 8 (related to a diminishing resolve to round-up hours in response to a request from a supervisor). 81 Palermo and Evans, op cit, n 79, p 269. 82 Justice Neville Owen commented in the report of the HIH Royal Commission: ‘I think all those who participate in the direction and management of public companies, as well as their professional advisers, need to identify and examine what they regard as the basic moral underpinning of their system of values. They must then apply those tenets in the decision-making process. The education system – particularly at tertiary level – should take seriously the responsibility it has to inculcate in students a sense of ethical method.’ See Australia, HIH Royal Commission. The Failure of HIH Insurance, Canberra, 2003, Vol 1, ‘The Royal Commission: A Personal Perspective’. 83 See, for example, Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law, 2003, available at – at 11 March 2009.

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no ethics crs ethics crs

Yr3

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Scenario 11 Yr1

Yr3

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100% 90% 80% 70% 60% 50% 40% 30% 20%

Note: ‘Yes scenarios denote: 2. Would act for the corporation

4. Would purchase shares 8. Would round10. Would refer up hours a colleague for counselling

11. Would break confidentiality and inform welfare

Figure 2.3: Percentage responses by ethics/non-ethics groups to scenarios in years 1–3

Ethics education seemed to have had no major effect on the issue of personal versus firm loyalty, with both groups (that is, those who had and had not taken an ethics course) more likely to initially favour referring a troubled colleague for counselling, then to change their mind in year 2 and change back again in year 3. Lastly, in Scenario 11, participants who had completed an ethics course were significantly more likely to break confidentiality across the three years of the study! Unfortunately, it was not possible to discern whether ‘breaches’ occurred because of exposure to a legal ethics course or despite it, although the supporting focus group investigation, discussed below, did allow some conclusions on this issue.

2.5.3 Implications of the Australian Lawyers’ Values Study Whilst the majority of participants indicated behavioural choices in scenarios that could be considered aligned to professional codes of conduct, the numbers of participants in . . . their second year in a professional role, who reported behavioural choices that could be in opposition to professional codes of conduct was still surprising . . . This . . . suggests that there is no basis for sanguine assessments of the effect of peer supervision in the development of appropriate ethical attitudes. Legal practice does not necessarily make up for the (perceived) failures of undergraduate legal ethics education . . . and the Australian profession does not appear to be active in addressing


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ethically appropriate attitudes in its new entrants . . . It is an inescapable conclusion of [the] research that Australian lawyers’ underlying values systems, whether developed years before admission to practice or belatedly, under the influence of an often positivist undergraduate legal education, are powerful determinants of the attitudes that lawyers bring into practice. Conventional tertiary legal ethics education may have a minor impact only, before situational cultures within each workplace then take over, often cementing prior attitudes and producing a dazzling array of behaviours of varying ethical distinction.84

The reality that workplace culture is potentially overpowering of prior values is not a surprising finding, as Rhode observes: [L]awyers prefer practice settings that minimise conflicts between moral convictions and client objectives . . . [A]ssigning individuals to defend a position greatly increases the likelihood that they will come to believe in it. These processes of self-selection and psychological adaptation may help explain why a majority of surveyed lawyers report that they have never needed to turn down a case for ethical reasons. Yet at least part of the reason that these practitioners experience so little moral difficulty is that they have internalised a role that represses it. That process is not inevitable.85

In the same study, focus groups were also utilised to check on the likely veracity of the longitudinal data. In general terms, those groups did provide that verification, in the sense that the intensity of debate in the face-to-face discussions made it clear that respondents were engaging very seriously with the scenarios confronting them.86 Focus groups discussed all scenarios, including that of client confidentiality. This scenario investigated whether respondents were influenced by their training on legal ethics or were impelled by a stronger sense of personal values to ignore what they acknowledged were the rules of professional ethics. The following extract from one such session supports not only the degree of respondents’ engagement with the issue, but also testifies to the likely positive benefit for a values awareness process involving actual discussion: Interviewer: [suggesting that D knows she broke confidentiality] D: Yeah, yeah, you do, you do. I’m agreeing with that but [interruption by 2nd respondent, C]. C: So then you have to vote by yourself thereafter where the line is. What do you divulge and what don’t you divulge when in fact the ethical thing is to divulge nothing . . . D: I think it’s going to be an issue of how sure you are and that’s what I think is important. It’s going to be a matter of whether you can trust your judgment. And I don’t think you would go about that decision lightly. C: It’s going to stick with you and it’s going to shake your career and your own confidence if you have to continually renegotiate with yourself about what’s ethical. D: I think you have to continually negotiate with yourself about what’s ethical anyway. 84 Evans and Palermo, op cit, n 75, pp 125–8. 85 Deborah Rhode, In the Interests of Justice: Reforming the Legal Profession, OUP, New York, 2000, 70. 86 See generally Evans and Palermo, op cit, n 73.

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C: Whereas confidentiality . . . makes life that much easier. You have done what is expected of you within the profession you have chosen. (C and D, 12/11/2002) [Similarly] D: I guess there isn’t – the reason I raised this is because the bottom line of the thesis about the Holocaust is that what happened in Germany was completely legal because Hitler went through and passed all the laws to make it completely legal. A: But it wasn’t. C: That’s a whole different topic. The first action that he made was illegal. Thereafter they were all legal. D: Yep. C: But rightness based on wrongness [interruption]. A: Are you saying [C], that true legality is in fact ethical? You know, legal legality? C: If we can’t believe that . . . Where I’m coming from, if we can’t believe in the principles that have guided this profession since its inception in its modern form about 400 years ago, then is it worth anything at all? Now, I personally disagree with lots of aspects of it and I personally will try to get them changed. But in the position of what I have taken an oath to do, what I have become an officer of the court for, is to uphold the rules as they are, not as I would have them. I’m not working over there. I’m governed by Chapter 3 of the Constitution. I’m not a judge. (A, C and D, 12/11/2002) [And], interestingly, the debate soon slides into the question of the value of questioning ‘orders’: D: Does that mean the only ethical way of practising is to follow the letter of the law and not to the letter of your ethical standards? I mean, that’s a big question, isn’t it? C: Pretty much, my answer would be, ‘Yes’ . . . The most ethical thing for me to do is to do what I’ve taken an oath to do . . . A: Is the issue here – are we really a private person or are we not a private person as a lawyer? C: As a lawyer, you are not a private person when you’re functioning as a lawyer. A: Does that mean you’re ethical? D: But that’s like saying as a soldier, you’re not a private person when you’re killing people. C: Yep. If the nation’s rulers say to the nation’s soldiers, ‘Go and do that’, their duty is to go and do that. That’s what being a soldier is. D: That’s why I’m not a soldier. B: Yeah. C: If they don’t like doing it, they should find some other occupation or profession. (A, C and D, 12/11/2002).


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[And:] A: But if it’s going to be a matter of impact on a person, of serious injury, then you have to report it. B: If you hear of an illegal activity, client confidentiality doesn’t apply, so . . . I mean, I found that quite a difficult one to answer because the initial instinct is to say, ‘Yes, I’m going to tell.’ But . . . Again the situation’s not clear, it’s that . . . She says it’s inflicted by the boyfriend and, you know, you believe the children are at risk. Again, if you don’t do anything, you’re probably going to put the children at harm, and that’s probably a stronger one. I guess my reaction is the only one I can tell you. I would tell the department of welfare if I believed there was a real risk. C: Yeah and I guess that’s a good point. You also owe a duty to the law. So if you think a crime is about to be committed, you have a duty to report it anyway. A: I take it quite differently. I say, ‘Gimme a reason why I should . . . Tell me why it’s so important’. So I take it the other way. I say, ‘Life . . . the wellbeing of this child is so important, tell me why this client confidentiality principle is more important than a life.87

These new lawyers were becoming more aware of their values by virtue of their focus group reflection. While there is no empirical way to observe whether this awareness was helping to improve their behaviour, greater awareness of values is likely to result in more conscious future behaviour. In other words, while consciously criminal or otherwise illegal activity is presumably completely impervious to greater values awareness, values preconceptions can be challenged. Luban names this recognition of values ‘dissonance’ through self-reflection as the way forward,88 because it appears to have some chance of improving behaviour. Accordingly, a potential connection between testing awareness of values and improved behaviour becomes tenable. There is a lot at stake in effectively ignoring unethical behaviour, both for the profession and for the community, but lawyers’ conscious reflection upon their own values and of values diversity among their peers is likely to counter any tendency to automatic reactions to stressful dilemmas. These connections justify including the extent of a lawyers’ values awareness as a part of the assessment of their professional ethics.89 The possibilities for such assessment are discussed in Chapter 7. 87 Evans and Palermo, ibid, pp 251–4. 88 As discussed by David Luban, ‘The Ethics of Wrongful Obedience’ in DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000. See also Chapter 7. 89 Evans and Palermo have observed that the special case of practitioners who are identified by the disciplinary process as having behavioural problems, could constitute another setting in which values awareness training may be useful. If there were a degree of statistical significance in associated values-behaviours among disciplined practitioners, there may be a strong case for the profession, in the exercise of an underlined selfgovernance (and before an outside regulator gets in on it), to prescribe particularly focused values awareness training for those who seek a return to practice. Even more so, those whose practising certificates have conditions attached as a result of unsatisfactory conduct or misconduct, could be asked or required to ‘get with’ values awareness. Such activity may be well-regarded by all stakeholders as in the interests of both the profession and the public. See further, Adrian Evans and Josephine Palermo, ‘Gender and Ethics’, (2005) 79 LIJ 40, 42–5.

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However, as discussed earlier, reflection does not mean prescription. Rules of conduct already try to draw the line as to what is and what is not acceptable for discipline purposes. There is little point in trying to define, in addition, ‘appropriate’ or ‘desirable’ ethical models; for example, the lawyer who wants to behave responsibly over the zealous advocate, even if that task is technically feasible, since there is no consensus as to which models are antithetical to professionalism. Nevertheless, there are many insights available as to the core qualities that will distinguish lawyers whose values are appropriate for legal practice and a number of powerful contributors to those insights. Both are discussed below.

2.6 Core qualities of professional activity Sociologists, economists, historians and ethicists have all thought about the essence or core of professional activity and its contribution to wider society. While some of their ideas may seem esoteric or remote from the tangible problems of legal ethics, consideration of the ideas behind professionalism must occur if the discussion in Chapter 3 of legal ethical ‘types’ is to occur in context. In particular, central professional debates about autonomy, independence, service, integrity and trust are relevant to deciding which legal ethics principles are important in their own right and to help identify tests for markers of acceptable ‘professional’ behaviour.

2.6.1 Sociologists A search for core qualities begins with those identified by sociology. Sociologists tend to see professional ethics as merely secondary to efforts by groups of individuals to acquire social status by providing expert (if uncritical) service. Sociologists begin by flattering professionals, but over time have spoken about the hurdles which lawyers must overcome if they are to persuade observers of any commitment to ethics. Talcott Parsons’ 90 comfortable 1939 analysis said nothing about lawyers’ ethics and confidently linked capitalism, the certainty of the Rule of Law and the professions as being mutually supportive. In that remote era, he had no problem in identifying all professionals, including lawyers, as positive (ethical) contributors to economic activity and hence social stability. More precision was achieved by writers like Goode,91 who in 1960 argued that the usually lengthy and (interestingly) specialised study of an abstract discipline, when combined with the wish to serve or ‘collegiality’, identified the professional. By this time, Goode thought that a professional cared about service and ‘excellence’. 90 Talcott Parsons, ‘A Sociologist Looks at the Legal Profession’ in T Parsons (ed), Essays in Sociological Theory (rev. ed), Free Press, Glencoe, Illinois, 1954. 91 W Goode, ‘Encroachment, Charlatanism and the Emerging Professions: Psychology, Sociology and Medicine’, (1960) 25 American Sociological Review 902.


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Western, Makkai and Natalier, writing in 2001,92 considered that a professional culture – that is, benign attitudes, values, beliefs, skills, knowledge and behaviours – operated at the time Goode was writing. And, within that culture: ‘Foremost [was] a belief in the essential worth of the service that the professional group extends to the community.’ 93 But a more critical view appeared during the 1960s, allowing Freidson94 to lament in 1970 that power was the real agenda of professional organisation, followed by Larson95 in 1977, who was darker still with her characterisation of ‘professionalisation’ as provider control of services in the financial interests of the provider only, preferably through a monopoly. Very little sense of professionals’ noblesse oblige seemed to have survived these analyses. The analytical understanding of the profession was to become even more systematic and sceptical, though not from any single, grand design. Abbott96 argued that the ability to adapt, almost to mutate, the professional environment was at the heart of the professional mystery and that this all depended upon the level of ‘knowledge abstraction’: . . . [A]bstraction is the quality that sets inter-professional competition apart from competition among occupations in general. Any occupation can obtain licensure . . . or develop an ethics code . . . [b]ut only a knowledge system governed by abstractions can redefine its problems and tasks, defend them from interlopers and seize new problems . . . Abstraction enables survival in the competitive system of professions.97

In other words, lawyers’ refinement of expert knowledge down to its abstract essentials (not just its functional specialisation), allows repackaging to meet new client needs and ‘hold the turf.’ 98 Abbott points out that ‘professions’ (defined very functionally as groups whose members and others normally call professions) develop when jurisdictions become vacant; groups of expert workers can 92 John Western, Toni Makkai and Kristin Natalier, ‘Professions and the Public Good’ (2001) 19 Law in Context 21. Kimball states that there were four professions by the 18th and 19th centuries: theology, medicine, education and law. See Bruce Kimball, The “True Professional Ideal” in America: A History, Blackwell, Cambridge, MA, 1992, p 6. 93 ibid, p 25. It must be stated that ‘the worth of a service provided to the community’ is no more than a culturally relative assertion. Though this illustration is macabre, consider for example the activities of inquisitors and interrogators who conscientiously torture as a part of service to dominant religious norms. However, to be fair, Western always places service in the context of other ‘fundamentals that guide professional work’: ‘to reiterate, they are the view that professionals provide an important service to individuals/and or the wider community, that a body of esoteric knowledge underlies the delivery of professional services, that autonomy is essential to the performance of professional work, and that material and psychological rewards flow from a combination of these’. See John Western, Michele Haynes, Denise Durrington and Kathryn Dwan, ‘Characteristics and Benefits of Professional Work’, (2006) 42 Journal of Sociology 165, 181. 94 Eliot Freidson, Professional Dominance, Aldine, Chicago, 1970. 95 Magali S Larson, The Rise of Professionalism, University of California Press, Berkeley, 1977. 96 Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor, University of Chicago Press, Chicago, 1988, p 8. Abbott defines professions loosely as ‘exclusive occupational groups applying somewhat abstract knowledge to particular cases’. 97 ibid, pp 8–9. 98 ibid. The exception to the ‘evolutionary’ theorists is the later work of Larson, who followed Abbott with further comment in 1990. She stated that ‘. . . it is less productive to work towards a general theory of professions than it is to think of questions which go beyond the professions and address the larger and more important theme of construction and social consequences of expert knowledge.’ See Magali Sarfatti Larson, ‘In the Matter of Experts and Professionals, or How Impossible it is to Leave Nothing Unsaid’, in Rolf Torstendahl and Michael Burrage (eds) The Formation of Professional Knowledge, State and Strategy, Sage Publications, London, 1990, pp 24–5.

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convert their work and knowledge into a currency. They can present their expert work as different from other expert work and, in time, they can claim an expert status beside other expert groups (occupations, professions). Abbott argues that abstract knowledge systems are the most important currency of competition between professions. Lawyers have seen this phenomenon in accountants’ progressive entrée to taxation planning. This is the same basic idea as Bourdieu’s, hence: ‘expert labor must be converted into symbolic capital to assume . . . expert status in society.’99 In summary, while early sociologists were functional descriptors of professionalism, more recent thinkers have emphasised notions of power and, particularly the economic power available from further abstract conceptualisation of professional work, as emblematic of professional cares. There is little or nothing of ethical constraint or values sensitivity per se so far as lawyers are concerned, despite a continuing clamour100 for these non-economic elements of professionalism to be on greater display. But these analyses of power are very important to the enhancement of lawyers’ ethics for two reasons. Firstly, since sociology has named the pursuit of power as a professional aphrodisiac, there can be little progress in asserting lawyers’ ethics as more important than their power until that insight is acknowledged. Secondly, if the sociological emphasis on the adaptation and refinement of abstract knowledge as a descriptor of professionalism is correct – and it is quite plausible – then the ability of the organised profession to respond to criticism of lawyers’ behaviour by accepting ethical accountability may be more than just sensible. Professional adoption of ethics assessment could also be a part of the adaptation of abstract knowledge that has secured professional survival in the past, and will do so again.

2.6.2 Economists Economists’ perspectives on professionalism are among the most compelling because they strip away what can sometimes be mere sentiment associated with notions of altruistic service and noble collegiality, exposing financial impacts of certain behaviours and asking ‘who benefits?’ and ‘who is disadvantaged?’ in those terms alone. Economists’ views can be more balanced than those of business and may offer greater utility than those of sociologists. As a generalisation, economists’ views on who wins/who loses are slightly closer to day-to-day 99 Abbott, op cit, n 96, citing Pierre Bourdieu, Homo Academicus, Stanford University Press, Stanford, 1988. Bourdieu’s ‘symbolic capital’ tool has been very influential. Arnold and Kay suggest, for example, that small law firms are structures which reduce the ‘social capital’ of the legal profession, as compared with large law firms, because they tend to exhibit characteristics such as self-employment (less external scrutiny), personal operation of trust accounts (less accounting expertise and more thefts) and the availability of fewer ethical mentors (more conduct complaints). See B Arnold and F Kay, ‘Social Capital, Violations of Trust and the Vulnerability of Isolates: The Social Organisation of Law Practice and Professional Self-Regulation’ (1995) 23 International Journal of the Sociology of Law 321. 100 Nicolson and Webb, op cit, n 72. Nicolson and Webb, who have agonised more than most about professionalism, comment that there is a need to consider how ‘. . . to counter the process of demotivation and disaffection . . . and how we motivate lawyers to behave professionally . . . ’ (p 169).


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professional activity than those of sociologists, but not as close as the business viewpoint, which can tend to be more self-interested and short term in its priorities. Not unreasonably, Western economists tend to focus on competition in much of their analyses. They are collectively suspicious of any ‘business’ that appears to enjoy an ‘unnatural’ competitive advantage over any other provider. Professions are not automatically seen as protectors of anything, merely prima facie the recipients of some unnatural business advantages because they have deliberately limited competition with the aid of the State. The conventional economic view is that the professions are indeed ‘a particularly powerful type of restrictive combination, cartels backed by licensure laws.’101 Ironically, economists’ suspicions of institutional protection have themselves been institutionalised in many Western economies. In Australia, the National Competition Council assesses all sectors for their competitive utility, including the legal profession.102 The situation is similar elsewhere.103 In regard to lawyers, the Council has promoted several structural initiatives (multidisciplinary partnerships – MDPs – and incorporated legal practices – ILPs) which are intended to improve competition among lawyers and between lawyers and other professionals by spreading ownership of law firms.104 Both MDPs and particularly ILPs are being progressively implemented across Australia.105 While competition may be increased to some extent by these changes, economists are not overly concerned about the countervailing public interest of professionals – loyalty, more precisely understood as the fiduciary obligation106 – even though such an obligation may be more important to social stability than increasing competition and may indeed be diminished by the introduction of that competition. Economics does not seem to recognise that the ‘unnatural’ competitive advantages of the legal profession are a consequence of its social and economic obligations to promote closure of both transactions and failed transactions (disputes) 101 Robert Dingwall and Paul Fenn, ‘A Respectable Profession?: Sociological and Economic Perspectives on the Regulation of Professional Services’ (1987) 7 International Review of Law and Economics 51. Dingwall and Fenn cite a number of examples of the conservative view, including Milton Friedman, Capitalism and Freedom, University of Chicago Press, Chicago, 1962; and Dennis Lees, The Economic Consequences of the Professions, Institute of Economic Affairs, London, 1966. 102 See National Competition Council <www.ncc.gov.au/sector.asp?sectorID=40> at 28 November 2006. 103 See, for example, R King, The Regulatory State in an Age of Governance: Soft Words and Big Sticks, Palgrave Macmillan, London, 2008; B Garth, ‘Introduction: Multidisciplinary Practice after Enron: Eliminating a Competitor but not the Competition’, (2004) 29 Law And Social Enquiry 59. 104 Rex Deighton-Smith, Ben Harris and Kate Pearson, Reforming the Regulation of the Professions: Staff Discussion Paper, National Competition Council, 2001, 26 <www.ncc.gov.au/pdf/PIReStPr-001.pdf> at 28 November 2006. MDPs allow multiple professional skills to be brought together in the one firm. ILPs allow incorporation of legal firms under the national Corporations Law. There are significant concerns about the potential for these structures to entrench conflicts of interest for employed and principal practitioners in their midst. See, for example, Julian Webb, ‘Legal Disciplinary Partnerships: An Ethical Problem in the Making?’ (2005) 8 Legal Ethics 185. 105 The Legal Profession Model Laws Project, Standing Committee of Attorneys-General, Canberra, 2004, provides for their uniform adoption throughout Australia. See <www.ag.gov.au/www.agd.agd.nsf/Page/ Publications≥ at 5 December 2006. Some States have introduced incorporated legal practice provisions. See, for example, the Legal Profession Act 2004 (Vic) Part 2.7. 106 An equitable duty to act in good faith for the benefit of another. Concise Australian Law Dictionary, Butterworths, North Ryde (2nd ed), 1998, p 176.

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in a peaceable manner and that these advantages are unlikely to be the result of a deliberate strategy to corner any marketplace, though that does not rule out the tacit acceptance of competitive advantage by some lawyers as beneficiaries of that role. Such advantages may have made lawyers complacent about their ethical accountability and blasé about any growing comfort with business priorities, and in this sense economists have something powerful to say to lawyers about their real priorities. But lawyers still offer a critical public service which the market (and economists as market servants), have trouble accepting. Chief Justice Spigelman, of the Supreme Court of New South Wales, has no hesitation in placing social obligations of lawyers in front of the economic pressure to dominate: Perhaps more than anything else it is the performance of duties to the court which should prevent legal ethics becoming merely a sub-category of business ethics. The role of the profession in the administration of justice cannot be characterised simply as the provision of services to consumers. There are structural and institutional issues here of great significance. Competition regulators tend not to understand, or if they understand tend not to value, rival institutional traditions to that of the market. A market does not value history and tradition. As I said at my swearing-in a market wakes up every morning with a completely blank mind, like Noddy.107

Economics may push lawyers toward self-interest, but the utility of the legal profession as a ‘refiner’ of abstract knowledge for socially collaborative purposes, is unattainable without equal investment in its own ethical consciousness and obligations. Accordingly, there is likely to be advantage in conceiving of legal ethics as a package of consciousness and obligation, in order to identify ways and means of improving behaviour. Trust and mistrust are at the centre of the package.

2.6.3 The paradox of trust and mistrust In contrast to these functional and somewhat gloomy viewpoints, there is a third and unlikely perspective which recognises legal professionals’ major social contribution to market activity. Criticising Larson and other sociologists’ pessimistic view of professionalisation, Dingwall and Fenn assert that there is a hopeful reason why professions often seem to ‘work’: because there is, more often than not, social trust in professionals’ lack of exploitation or repression,108 which in turn relates to the nature of the market for services. The analysis works like this: market imperfections – so-called ‘information asymmetry’ – for example in law, mean that there is no realistic way that most consumers of legal services can know the real quality of the services they are purchasing from lawyers. While one response to market imperfection as an 107 Chief Justice James Spigelman, ‘Are Lawyers Lemons? Competition Principles and Professional Regulation’, 2002 Lawyers’ Lecture, delivered to St James Ethics Centre, Sydney, 29 October 2002, 41–2. 108 Dingwall and Fenn, op cit, n 101, p 53.


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issue of quality control is to mete out penalties via an external regulator,109 a better approach, according to Dingwall and Fenn,110 is to tackle the problem of information asymmetry as to quality by progressive licensing or a preventative rating. If practitioners are tested for quality after admission (or through specialised, post-admission accreditation), when any examination will occur in the context of experience of practice, there is some chance that quality will be controlled pre-emptively. According to Dingwall and Fenn, both these ‘solutions’ tend to be used in varying degrees. But neither is wholly satisfactory as an explanation for why professions generally work, because they do not explain why (1) notwithstanding all the restrictions on professional entrée, admission processes are stable and generally acceptable to the mass of society, and (2) the members who are ‘in’ have not in fact generally reduced quality to the point that most professional privileges are withdrawn by the State.111 This is a crucial insight: given all that is known about professional dysfunction and its tendency to consumer disempowerment, why is there still a general tolerance or trust for the professional function? ‘Trust’ seems to be the mechanism which can operate independently of conventional market controls such as share market movements or regulator prosecutions, ensuring general compliance with quality. And professions are identified as the central mediators of that trust.112 That view that ‘pure’ market controls are inadequate and in need of others mediation is perhaps more accepted now than in any period since the Great Depression of the 1930s. Trust is the learned attitude or behaviour which has allowed human society to survive for so long despite all the tendencies toward maximisation of self-interest. But this sense of trust is paradoxically conditional on a range of trust-monitors which someone or something demands from each professional. The values behind trust have to be maintained, transmitted and enforced in some way, even if they can actually diminish the trust in the professional which they seek to promote. There is a need for occupational institutions which are autonomous from the State (since if not, they will not engender enough trust) as vehicles to enforce and pass on this social confidence. Education, religion and policing all play a part here 109 But this approach faces the quis custodiet problem of how to trust the regulator; that is, who is to regulate the regulators?, which applies whether there is self-regulation or external regulation. Thus the information asymmetry facing consumers as to the quality of legal service is not removed, but simply shifted to another body: Dingwall and Fenn, op cit, p 55. Note that where information asymmetry between professionals and consumers as to quality can be eliminated, as may occur in medicine, say via internet disclosure of some quality information in a directly comparable format on individual doctors, Dingwall and Fenn suggest there might be no need for any regulation. They refer to B Klein and KB Leiffler, ‘Non Government Enforcement of Contracts: The Role of Market Forces in Assuring Quality’, (1980) 88 J. Pol. Econ 55. As yet, however, there is no easy way to provide such information in most professional quality environments, on a post facto basis. This is especially the case if quality issues are defined to include the many subjective elements of legal practice, which constantly weigh utility against process in a multitude of combinations, many of them capable of characterisation as reasonable according to the biases and judgment of the lawyer at the time and in those circumstances. 110 Dingwall and Fenn, op cit. 111 ibid, p 55. 112 ibid, pp 56–62. In fact, the whole of the market economy depends on trust, without which nothing of significance could function.

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of course, but so also do the professions. This is so even though professionals are often forced to act ambivalently, in the interests of an implicit contract with the State as well as with their clients or patients. The professional applies judgment to stabilise the unpredictable sufficiently to provide a basis for action. Thus, in Dingwall and Fenn’s controversial opinion: The lawyer’s burden is the knowledge that law and justice are not to be equated, that, at its heart, the legal system is an arbitrary but legitimated way of imposing closure on disputes. Yet, if the law were presented as arbitrary, it could not make its contribution to the framework of social discipline around the market of economic life.113

Accordingly therefore, the reason why professions including lawyers exist and are socially advantageous (to the extent of operating monopolistically) without significant loss of ‘quality’ or perennial exploitation, has to do with the process of ‘socialisation and group responsibility which, while not directly verifiable, ensures adherence on the part of most professionals to a strict code of conduct . . . ’114 [emphasis added]. In other words and in the present context, the promotion of trust through law school, law society and bar association monitoring of ethical performance. It is only where such trust breaks down and the group is observed to abuse its privileges, that these ought to (and have been) withdrawn.115 The corollary is important because the equation of privilege = performance echoes almost all other writers’ understanding of the professional bargain and in so doing, underlines the desirability of mechanisms to assess the presence or absence in prospective lawyers of those elements of professionalism which support that trust. Trust and its positive promotion can be understood as implicit in a number of ethical elements. It is the glue which holds much of the edifice together. To conclude, these separate analyses support a variety of understandings about the importance of legal ethics to lawyers. Lawyers are certainly keen to hold on to power; and the currency of that power (the activation of abstract knowledge) may describe the way in which work is acquired and performed, but the intellectual refinement of expert knowledge into abstract knowledge is far from a complete explanation of the professional phenomenon. Where Larson offers a political power perspective and an economist offers more or less rational incentives and disincentives to action, it is the ethicist who will identify issues of moral philosophy and of the right and wrong in legal practice which are so important to the trust society conditionally places in its practitioners. Securing that trust becomes the objective. Lawyers, of course, have a tendency to see the moral agenda as limited to a set of formal rules and this inclination provides an 113 ibid, p 61. It is doubtful if the coincidence of law and justice, when it occurs, is as arbitrary as Dingwall and Fenn contend. Practitioners and judges are likely to try to mediate one with the other if for no other reason than law (as precedent) and justice (as fairness) gain public respect from a coordinated approach to both. 114 ibid, p 62. 115 ibid. The examples provided by the law societies of England and Wales and Queensland are instructive. See, for example, Reid Mortensen and Linda Haller, ‘Preface: Legal Profession Reform in Queensland’ (2004) 23(2) The University of Queensland Law Journal 280.


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opportunity: the possibility that lawyers’ assessed contributions to society will provide one way to monitor that persistent sense of trust.

2.6.4 The personal in the professional: Altruistic service as an ethical characteristic In contemporary Western experience it is clear that the efficiency approach to the professional mix glosses over human frailty, short-sightedness and capacity for self-delusion, particularly as demonstrated by the 1999–2002 financial scandals and the 2008–09 global recession, which have deeply wounded the public personas of all ‘commercial-based’ professions. So if it is true, as Abbott contends, that ethics codes only come later on in the growth of a profession because ‘they serve the function of excluding outsiders, a function that became important only after the professional community had been generated and consolidated’,116 then the professions have no convincing moral claim to self-regulation and the community can have no expectation of altruistic behaviour. But consider the idea of a service obligation. The willingness of the profession to entrench a new type of abstract knowledge and develop further social capital – in other words, the ability to measure lawyers’ integrity and their sense of altruism – may now be a necessary step in the preservation not only of a traditional professional elite but also in helping to maintain some social order per se.117 Arup, in discussing the historical place of the pro bono movement in a ‘post– professional’ era, sets pro bono instincts against a backdrop of economic globalisation. He considers that the formerly dominant neo-liberalism, which in turn required micro-economic reform, much freer markets (including those for socalled public goods such as dispute resolution) and the reduction in industryspecific protection (including that provided to the ‘professions’), is inimical to altruistic service.118 But neoliberalism is no longer as powerful as it once was and Arup agrees that many lawyers remain committed to the idea of the profession. This is perhaps in part because of its potential for public service – despite the fact that they must daily respond to strident consumerism (with assertive and demanding clients); judicial activism; vastly increased volumes of legislation; international legal requirements; feminisation; greater numbers of graduates; the IT revolution; management and leadership demands; workplace reforms; the disenchantment of newer lawyers; competition from other professionals and the decline in smaller firms relative to those better able (in some senses) to deal with the quantity and 116 Abbott, above n 96, p 5. 117 Western, et al, op cit. The authors point out that, according to Australian Bureau of Statistics figures (1995), professions number 14% of the Australian workforce compared with 9.5% in 1965, but mere numbers are not enough. Service to the community may not just be an altruistic option. Western considers that lawyers’ community service is an essential reality because of the crucial role they play in the justice system, so that the shaky ‘rule of law’ might not be even further degraded. 118 Christopher Arup, ‘Pro Bono in the Post-Professional Spectrum of Legal Services’ (2001) 19 Law in Context 190, 192.

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pace of this change. And all of this is taking place while lawyers are observing the relative decline in their own professional standing.119 Altruistic professionals abound, even if they do not feature in Abbott’s world view of the professions. It is the attribute of altruistic improvement (even of the call to meaning and service), which is addressed by the professionalism enterprise and which supports the need for ethical accountability, as a response to dishonourable behaviour. Taking Arup’s lead, it may be concluded that these myriad challenges are producing in lawyers a search for personal significance, even though it is quite clear that pro bono will only satisfy that search if it entails voluntary activity. The profession may seek to assess an awareness of pro bono obligations, but if it moves to mandatory or (the slightly euphemistic) ‘aspirational’ pro bono targets,120 the central ‘public good’ element will be constricted by degrees as the concept metamorphoses to just another requirement of a practising certificate. Perhaps the emotional appeal of pro bono, or some other active expression of voluntary social responsibility, is because it is a relatively pure, simple, feelgood, achievable and above all responsible activity,121 compared to much of the intersecting stress, compromise and sour-tasting negotiation that accompany the ubiquitous ‘six minute billing interval’. Equally, however, regulation alone does not force people to act in the public interest: society must rely on a professionalism that ‘pulls’ as well as regulation that ‘pushes’ and while fairly strong statements can be uttered about ‘peer disapproval and public embarrassment’ as the most effective tools for deterring unprofessional conduct,122 inducements to ‘good’ behaviour require a pragmatic mix of self-interest and community accountability.

119 ibid, pp 193–4. 120 See generally Esther F Lardent, ‘Defining and Quantifying Pro Bono: Pros And Cons’, Presentation to The Second National Pro Bono Conference: Transforming Access to Justice, Sydney, 20–21 October 2003, <www.nationalprobono.org.au/resources%20for%20students/resourcesforstudents.html> at 7 December 2006. Altruistic professional commitment to pro bono may not be strong enough among lawyers to stand up to an assault from an ‘aspirational target’ which masquerades as a requirement. See Adrian Evans and Josephine Palermo, ‘Australian Law Students Perceptions of Their Values: Interim Results in the First Year – 2001 – of a Three Year Empirical Assessment’, (2003) 5 Legal Ethics 103, 109–10. Parker has, however, come close to advocating compulsory pro bono within legal education, on the basis that that stage of a lawyer’s education is likely to be formative of later behaviour. See Stephen Parker, ‘Why Should Lawyers Do Pro Bono Work?’, Keynote Address, First National Pro-Bono Conference, Canberra, 4 August 2000, p 9; Adrian Evans, ‘Recognising the Conditional Nature of Pro Bono Motivation: Avoiding “Aspirational Compulsion” and Developing an Appropriate Pro Bono Ethic in New Lawyers’ (2004) 78 LIJ 38. 121 Parker observed in 1995 that the profession might do better to ask ‘. . . what is the responsibility of a lawyer?’, because, pragmatically speaking, ‘. . . modern society might respond better to claims that “we are responsible” rather than “we are professionals”.’ See Stephen Parker, ‘Introduction & Ch 4: Change, Responsibility and the Legal Profession’ in Stephen Parker and Charles Sampford (eds) Legal Ethics and Legal Practice: Contemporary Issues Oxford, Clarendon Press (1995) 1, pp 73–86. 122 See, for example, ‘Descriptions of Professionalism’, Nelson Mullins Riley and Scarborough Centre of Professionalism, University of South Carolina at 5 December 2006. Among many proposals for enhanced professionalism on this site, two with particular and radical interest for (US) law schools, are: law schools should screen out applicants ‘who lack the requisite personal values’ to practice law effectively. Further, students without adequate ‘personal values’ should be ‘prevented’ from graduating (presumably an easier thing to do in a vocational US law school) or, in default of that, information would be provided to bar admitting authorities. Values testing is still a highly contentious subject. It is likely to become infinitely more so as the opportunity for direct assessment and measurement emerges, as the human genome is progressively more understood. See generally Graham Lawton, ‘Let’s Get Personal’, New Scientist, Melbourne, 13 September 2003, 30–5.


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2.6.5 Professional self-interest in accountability Freidson echoes the common view that an accountability deficit is already chronic: The ideology of professionalism challenges the consumer movement by claiming that ordinary people cannot make their own choices without danger to themselves and that therefore there is no sensible alternative to trusting the professional’s judgment; it challenges consumerism by asserting its need for a monopoly in the market; it challenges managerialism by claiming self-direction and the necessity to employ discretionary judgment. But the economically self-interested actions of the profession and its failure to undertake responsibility for assuring the quality of its members’ work weakened its claims and appeared to confirm the truth of the assumptions of consumerism and managerialism.123 [emphasis added]

The crucial utility of professional ethics to the modern State depends not just on its professionals’ technical expertise, but on their wider and more costly delivery of quality. Implicit in the term ‘quality’ is ethical performance and service. As Freidson observes, ensuring quality is an obligation of the profession as an organisation and not just an individual responsibility. The issue of ‘quality’ ethics is central to this argument. Law societies can choose to establish a ‘do-able’, incentive-based method of improving quality in their members, much as they have already done through risk management and professional indemnity insurance. In so doing they will progressively recover the professional independence that has been damaged by perceptions in the market (if not in the bureaucracy) that misbehaviour and diminished competence are now approaching a norm. Freidson is nevertheless comfortable with existing professional privileges, provided the current abuses of those privileges are addressed convincingly. I believe that some version of monopoly cannot be avoided, nor can credentialism or expert authority. They are essential for the nurturance of specialised knowledge . . . But while the shibboleths assaulting professionalism are mostly empty rhetoric, they have succeeded nonetheless in increasing public suspicion of professionalism and weakening the credibility of its claim to have more than a material interest in its work. This has strengthened the power and increased the legitimacy of the ideologies of consumerism and managerialism that underlie the activities of both capital and the state. It has also liberated many individual professionals from the ideology of service, freeing them to devote themselves to single-minded efforts to maximise their own incomes.124

Safeguarding the essential ‘soul’ of lawyers’ professionalism therefore becomes the main challenge and for Freidson, the key to this task is the characteristic of independence, particularly in the treatment of conflicts of interest, for ‘this is a 123 Eliot Freidson, Professionalism: The Third Logic, Cambridge, Polity Press, 2001, 190. One of the most attractive challenges to professionalism in the last century was voiced by the educationist Ivan Illich, who for a relatively short time in the 1970s and 1980s offered (in California), an intellectual basis for a counter-cultural rejection of expertise as either necessary or desirable to society. This ideal is further explored in Chapter 3. 124 ibid, p 208.

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crucial test of professionalism in that in order to justify a monopoly over practice it must be assumed that it will not be used for selfish advantage’.125 It is important to note that Freidson did not apply his analysis to all professions without discrimination. He considers the Law as being particularly wellpositioned to exercise normative (that is, broadly ethical) and technical authority as a profession, because that technical authority is ‘. . . embedded in a normative system in which the determination of what is technical and what normative is opaque, compared with physical scientists on the one hand and philosophers on the other, who generally exercise only one kind of authority.’126 Today, it is likely that all professionals operate most effectively when exercising both normative awareness and technical authority, but Freidson’s observation about lawyers’ intrinsic combination of both functions seems particularly acute. Legal professionalism increasingly requires a tightly woven cloth of expertise, supportive moral structures and ethical judgment.

2.6.6 Integrity: The base for ethical systems If measurement and assessment of professional functionality are reasonable strategies in an effort to reduce the dishonour of professionals, they also operate positively in support of integrity. While the world of consumerism is arguably a micro-environment of indulgence and diminished integrity, there is a persistent and politically powerful expectation of predictability and fairness in the work that produces goods and services, in the ability to purchase those goods and services and in a necessary quality of representation to be provided by all types of specialist advocates and agents who support that system – that is, by professionals. We may not know how long this contest of Western values will continue. But while it does, the ‘quality of representation’ – especially that provided by lawyers as justice artificers – will turn on the notion of integrity. The term ‘integrity’ sums up another social need that is here identified as crucial in ‘a professional’ and an examination of the term is part and parcel of understanding legal ethics. Uhr tackles the uncertainty about integrity in modern professional existence not only with a direct appeal for ethical and corruptionfree behaviour, but also for differential measurement of both these aspects of integrity.127 He considers that ethics promotion and corruption prevention are different but legitimate faces of the same coin – the maintenance of integrity. While ethics for Uhr has a largely individual focus because it tends to relate to the standard of public virtue expected of individuals, corruption prevention has an institutional focus. Thus, integrity as ethics tends to be (or ought to be) a 125 ibid, p 215. Rules of ethics must also be effectively enforced and this is currently a significant deficiency across many professions (p 216). 126 ibid, p 156. 127 John Uhr, Getting the Measure of Integrity: The Two faces of Ethics and Corruption (Paper presented at the Reconstructing the Public Interest in a Globalising World: Business, the Professions and the Public Sector, Brisbane, Australia, 4–7 October 2002). See <www.iipe.org.au> accessed at 28 January 2003; John Uhr, ‘Competing Models of Integrity’, (2002) 11 Res Publica 13.


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positive encouragement to right behaviour, while integrity from the corruption perspective tends to be understood as ‘. . . the qualities of vice being avoided.’128 It is tempting to suggest that the modern professional is subsumed in the corporate enterprise with little unity, no autonomy and therefore only limited ability to show independence or integrity. But Hanlon offers this alternative view: even if there are now separate professionals, or a split profession, the essential relationship between lawyer/attorney and client continues. It is not dependent on the firm so much as on the engagement between two individuals, regardless of the wealth of the client.129 The fragmenting, multidisciplinary and transnational nature of legal practice is having a far more complex effect on the lawyer–client relationship than previously, but Hanlon’s ‘commercialised professionalism’ does not displace the issue of personal loyalty to clients as one of the components of professional integrity. Hanlon says he has not tried to define professionalism, but nevertheless he does explicitly refer to some shared understanding of ‘traditional professionalism’ as preceding the modernisation of legal practice. In fact, his thesis of UK legal profession fragmentation raises the question: Is a ‘commercialised profession’ a profession at all? If it is, is it susceptible to being assessed or measured? Would it be better to argue that the ‘commercialised profession’ has moved on to some other social function, to which no traditional professional attributes need be attached and which can be monitored in a specific, utilitarian, regulatory manner? But Longstaff argues130 that ultimately there is no utility in this approach because the expense of regulation is too high vis-` a-vis the need to produce ‘good’ service outcomes: eventually, there must be some reliance on innate and personal values of service if social utility is to be achieved. If the commercialised professional is still to deliver services, the same issues still arise therefore; there must be some way of encouraging individual ‘good’ behaviour that is not driven just by apprehension of subsequent penalty. The engagement of lawyers with clients and the loyalty of the lawyer to his/her client are quintessentially personal; responsible; and therefore accountable, elements of legal ethics. Each of the above characteristics – service, integrity, autonomy and independence – come back to the notion of trust. O’Neill also has much to say on this issue, commencing with the significant risk that the type of accountability advocated in this book may be inimical to the notion of trust: [W]e cannot have guarantees that everyone will keep trust. Elaborate measures to ensure that people keep agreements . . . must, in the end, be backed by – trust. At some point we just have to trust . . . trust is needed precisely because all guarantees are incomplete. Guarantees are useless unless they lead to a trusted source . . . [S]o 128 ibid, p 4. 129 Gerard Hanlon, Lawyers, the State and the Market: Professionalism Revisited. Macmillan Press, Basingstoke, 1999. 130 Paraphrased comments by Simon Longstaff, as interviewed by Fiona Buffini, ‘The Decline of Ethical Behaviour’, The Australian Financial Review, Sydney, 19 April 2002.

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trust cannot presuppose or require a watertight guarantee of others’ performance and cannot rationally be withheld just because we lack guarantees.131

O’Neill suggests that, while we may say that there is a ‘crisis of trust’, in fact, we do continue to place actual trust in services, institutions and people even though we are more suspicious. Put another way, we have to rely on all sorts of institutions and people even though we do not really trust them. We certainly have a culture of suspicion, of conditional trust, but there is no practical choice but to place actual trust in most of our encounters. As O’Neill states: ‘The sociologist Niklas Luhmann was right that “A complete absence of trust would prevent [one] even getting up in the morning.”’132 The conventional response to the crisis in professional ethics is greater accountability, of which there is an increasing abundance, especially at the micro-management level. But if higher standards of accountability – for example, compliance with corruption prevention – were having a positive effect in countering an alleged lack of trust, signs of success ought now to be visible. On the whole, O’Neill suggests, such signs are not visible. Perhaps the revolution in accountability is undermining trust – or increasing suspicion, if trust itself is no less evident? Just as the ‘risk’ of ethics risk management may be a sort of moral desensitising, O’Neill specifically asks if accountability agendas are now so burdensome that they may actually be destabilising trust, rather than supporting it.133 Thus we may be encouraging defensive professionals (those who are routinely wary of complaints), rather than caring professionals, focused on their service. Further, growing reports of mistrust may indicate we are imposing, as O’Neill says, an inappropriate accountability: In theory again the new culture of accountability and audit makes professionals and institutions more accountable for good performance. This is manifest in the rhetoric of improvement and rising standards, of efficiency gains and best practice . . . But beneath this admirable rhetoric the real focus is on performance indicators chosen for ease of measurement and control rather than because they accurately reflect what the quality of performance is . . . Even those that devise the indicators know that they are at very best surrogates for the real objectives . . . The pursuit of ever more perfect accountability provides . . . more information, more comparisons, more complaint systems; but it also builds a culture of suspicion, low morale and may ultimately lead to professional cynicism, and then we would have grounds for public mistrust.134

Thus any useful measure of professional ethics must not only mirror what is positively desired in professional behaviour but also satisfy tests of transparency and obligations to tell the truth: 131 Onora O’Neill, A Question of Trust (2002) BBC Reith Lectures, Lecture 1, <www.bbc.co.uk/radio4/ reith2002> at 7 December 2006. 132 ibid. See also N Luhmann, Trust, John Wiley and Sons, Chichester, 1979, 4. 133 O’Neill, op cit, n 131, Lecture 3, 4. 134 ibid.


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[D]eception is the real enemy of trust . . . Deception is not a minor or marginal moral failure. Deceivers do not treat others as moral equals; they exempt themselves from obligations that they rely on others to live up to . . . If we want to increase trust we need to avoid deception rather than secrecy. Although some ways of increasing transparency may indirectly reduce deception, many do not. Unless there has been prior deception, transparency does nothing to reduce deception.135

In face-to-face transactions, the notion of informed consent is important in deciding if the interaction is a trustful one. All of this is up close and personal, usually verbal,136 but certainly enlisting all the non-verbal communication that tells us whether we can rely on what is being said to us. Beyond the face-to-face transaction, what is published becomes a particular matter of concern because its source must be trusted. Accordingly, since any means that are used to assess legal ethics will undoubtedly at some time be published, including those that are based on notions of transparency, they must be based on an obviously trusted, empirically researched source. If measuring professional ethics is to avoid the allegation of deceit and hence the risk of further increasing distrust (rather than increasing trust), the measures adopted must be manifestly trustworthy. They must embody integrity. In short there ought to be ‘mirror indicators’ of past integrity and future honesty, or as Uhr would say, of past ‘good standing’ and future integrity. It is for this reason that one possible measure of professional ethics focuses on uncovering past deception (as explored in Chapter 6) and another on the transparent assessment of ethical awareness (in Chapter 7) as an indicator of future integrity. A professional test must strengthen integrity and honesty, rather than debase it and this is best done through open and above-board mechanisms; mechanisms which recognise and honour the uncertain nature of all discussion about ethics but nevertheless seek a meaningful way to categorise and accommodate individual perspectives on all of the preceding discourse. The start of this accommodation requires some discussion of the main drivers of individual lawyers’ ethical tension, that is, of differing ethical types. 135 ibid, Lecture 4, 3. O’Neill would, however, add that where deception – in the form of corruption – is endemic, transparency is of assistance. 136 ibid, Lecture 5, 1. O’Neill notes that ‘Socrates worried about the written word, because it traveled beyond the possibility of question and revision, and so beyond trust.’

3 Understanding ethical methods and types

3.1 Awareness of ethical issues Trust is central to legal ethics, but such trust involves more than a client placing trust in their lawyer. The wider domain of trust involves society being able to trust its lawyers to prioritise the interests of justice over all else. And if this sort of social trust is to mean anything tangible, there must be some method by which lawyers’ trustworthiness can be reasonably inferred. One way to approach this goal is to assess whether lawyers are, at a minimum, aware of ethical issues. Traditionally, both types of trust – individual trust of a client and the broader notion of social trust – have been inferred in lawyers through the mostly secretive and very ‘broad brush’ admission process. Admission mechanisms try to deal with the need to have trustworthy lawyers by somewhat illogically asking candidates for admission to demonstrate their ‘good’ character by showing that they have no ‘bad’ behaviour in their past. Of course, the acknowledgement of past bad behaviour does have the virtue of allowing society, through the admission regulator, to consider if future good behaviour is likely or not in a particular individual, but the admission process in most jurisdictions is ill-suited to predict future good behaviour from the absence of a ‘past’. It relies on a negative to infer a positive. Assessment of ethical consciousness or awareness improves on the current admission process as a method of inferring future ‘good’ behaviour. Such awareness provides a limited mechanism because it cannot be effectively assessed until a lawyer has some experience of legal practice, but represents a marked advance on mere reliance on the past. The challenge is to explore what such awareness

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ETHICAL METHODS AND TYPES

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might involve. Providing that an assessment of this quality occurs at a time when a lawyer’s knowledge of legal practice is reasonable, the assessment itself could operate as an inbuilt brake on future poor behaviour, which in itself would be a considerable achievement. Awareness of ethics could cover many difficult topics. Professional ethics fill substantial volumes and legal ethics even more so,1 but for the present it is enough to observe that the key ethical question for all professionals, including lawyers, tends to be concerned with their awareness of their personal ethical identity. Just as any law firm has little real identity without its component lawyers, so lawyers who might define their work in purely objective terms cannot escape what Segal describes as ‘subjective questions; questions of identity’:2 Ethics on this view is not a set of disengaged abstract beliefs about what is ‘right’ and ‘wrong’. It is the ability to express ourselves in the face of the way in which the other looks at us . . . The ethical relationship is a serious relationship because our sense of self . . . is contained in it’.3 [emphasis added]

Segal’s arguement that our identity is intimately bound up with issues of ethics and ethical identity depends upon being able to show our ‘true self’ without flinching. Looking in the mirror with this level of honesty is hard work for most of us, but perhaps particularly for lawyers because in learning to keep others’ secrets indefinitely and in deferring from time to time their own will to that of their clients, it may also become automatic for some to keep their own true self a secret from themselves. A painful illustration of this risk and of the need to connect ethical identity to the ‘true self’ arose in the case of the former Australian Federal Court Judge Marcus Einfeld.4 The highly respected Mr Einfeld, who was also a former head of the Australian Human Rights Commission, was jailed for two years in 2009 for perjury, after falsely asserting that a female friend of his was driving his car when it was photographed travelling at just 10 kmph over the speed limit. The traffic offence was extraordinarily trivial and the fine was a mere $77, but Einfeld insisted he was not the driver. His denial continued on oath even after it was proved that his friend could not have been the driver because she had died in the United States three years earlier. When charged with perjury Einfeld eventually pleaded guilty but remained in apparent ignorance of what had happened to his integrity. When interviewed for television shortly before his sentencing, the former judge could still not face up to the fact that he had lied and lied wilfully and repeatedly, asserting that ‘I don’t think I’m the 1 See, for example, Ross Cranston (ed) Legal Ethics and Professional Responsibility, Clarendon Press, Oxford, 1995; Deborah Rhode and David Luban, Legal Ethics, The Foundation Press Inc, Westbury, New York, 2nd ed, 1995; Kim Economides (ed) Ethical Challenges to Legal Education and Conduct, Hart Publishing, Oxford, 1998; Donald Nicolson and Julian Webb, Professional Legal Ethics: Critical Interrogations, OUP, Oxford, 1999; Gino Dal Pont, Lawyers Professional Responsibility in Australia and New Zealand, 3rd ed, LBC, Sydney, 2006. 2 Steven Segal, ‘The Hard Effects of Soft Skills – Just How Serious is Ethics?’ (2001) 45 Living Ethics 8. 3 ibid, p 9. Thus, ‘ . . . we need to question the absolute role given to objectivity and to re-enchant the ethical relationship.’ 4 Anna Patty, ‘Einfeld: I Just Made A Mistake’, The Age, Melbourne, 23 March 2009, 4.

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slightest bit dishonest. I just made a mistake.’ He did not flinch in making this statement,5 but a part of his true self was still hidden to him, if not to everyone watching. Ethics understood as self-awareness – an essential element of the successful ‘professional’ – are important to observe and assert, but have not been individually assessed in any significant sense to date. Practitioners’ reactions to this idea and to related proposals are explored in Chapter 7, but first it’s necessary to explore self-awareness. Assessing lawyers’ awareness of their values does not go far enough. Lawyers function in a complex ethical landscape with a horizon beyond both values and conduct rules. Awareness of that vista involves an understanding of the various approaches to or methods of ethics, which provides in turn a foundation for the different concepts of legal ethics which overlay those approaches.

3.2 Ethical approaches or methods There are numerous examples of pithy law society and bar association journal articles which extol the virtues of ethical behaviour – particularly the credible, profitable link between ethics and stable income6 – and deplore what is stated to be their general absence among practitioners.7 In the main, these authors, many of them professional leaders, call for enhancements to legal education8 rather than improved regulation.9 Thus, there are repeated but probably vain calls for the teaching of ‘civility’ among practitioners;10 improving law students’ veracity 5 ‘The Dishonouring of Marcus Einfeld’, Four Corners, ABC 1, 23 March 2009, at <www.abc.net.au/ 4corners/content/2008/s2521031.htm> at 12 May 2009. 6 David H Maister, True Professionalism: The Courage to Care about Your People, Your Clients and Your Career, The Free Press, New York, 1997. See also S Rosner, ‘Service to Clients Comes First; Lawyers Need to Make the Right Ethical Choices to Produce the Best Results’ (1997) 83 ABA J, 108. While Rosner does not argue for the view that aspirational decision making will make more money for the lawyer, he does make the more limited observation that if lawyers place the pursuit of money before service to clients the results will be ‘bad’. The reverse approach – where clients’ interests come before lawyers’ fees – means that ‘everything else falls into place.’ 7 DL Burnett, ‘Twenty-second Edward H. Young Lecture in Legal Education: Professionalism: Restoring the Flame’ (1998) 158 Military Law Review 109; Frank Neuner, ‘Professionalism: Charting A Different Course for the New Millennium’ (1999) 73 Tulane Law Review 204. 8 Mary Anne Noone and Judith Dickson, ‘Teaching Towards a New Professionalism: Challenging Law Students to Become Ethical Lawyers’ (2002) 4 Legal Ethics 127; JJ Shestack, ‘Taking Professionalism Seriously’ (1998) 84 ABA Journal 70. 9 There are some exceptions, particularly among teachers of legal ethics who return to legal practice and consultancy. See, for example, William Hodes, who advocates a ‘Professional Reform Initiative’ involving greater regulation: <www.hodeslaw.com> at 8 December 2006. 10 The incidence of impolite behaviour among lawyers was a strong feature of American writers’ dissatisfaction with the state of play during the 1990s. Former US Supreme Court Justice Sandra Day O’Connor has said: ‘Incivility disserves the client because it wastes time and energy . . . energy that is better spent working on the case than working over the opponent’ (p 9) and codes of conduct may not be enough, because ‘ . . . without a fundamental change in attorney conscience, even the best codification of civility can become . . . just another battleground.’ See Sandra Day O’Connor, ‘Professionalism’ (1998) 76 Washington University Law Quarterly 5, 10. Deborah Rhode considers that US Bar leaders are squeamish about professionalism, as evidenced by the promotion of educational processes that focus on uncontroversial issues. Thus they want to encourage both vigorous representation and fairness, failing to recognise that they are often inconsistent. See Deborah Rhode, ‘Opening Remarks: Professionalism’ (2001) 52 South Carolina Law Review 458.


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on resumes;11 and the introduction of separate ethics courses in law schools. With more potential for success, there are also suggestions for the integration of ethics education throughout law school curricula and for experiential or clinical legal education.12 While law school ethics education is certainly relevant to what lawyers do in practice, the evidence for the relative ineffectiveness of law schools’ ethics teaching and learning13 must shift the focus to the post-admission environment. Within legal practice, a consideration of actual ethical behaviour and the bases of that behaviour are the main interests. Discussion of the approaches to legal ethics from a legal practice perspective is legion and the language often uses moral philosophical concepts. Rhode and Luban for example, treat ethics and morality as virtually identical.14 They are critical of positivist morality – that is, dominant moral traditions accepted uncritically by some lawyers – because these must always be measured normatively against the question: should these traditions be ‘obeyed, modified or abandoned.’15 Of particular importance to legal ethics, Rhode and Luban deal with the contemporary challenge to positivist morality posed by relativism; the assertion that because values differ across societies and cultures, there is no basis to conclude that morality is more than just an individual opinion and provides no basis upon which to teach or assess ethics. Relativism asserts that all perspectives are equally valuable. While this view arises from the healthy instinct for tolerance (because it is very hard to be certain that we are ‘right’), it is also unrealistic at the margins because almost no-one is prepared, for example, to be completely relative in their assessment of others’ conduct. Genocide and slavery are surely unjustifiable even to the convinced relativist.16 But even if there are no absolutely proper answers to some questions,17 Rhode and Luban encourage lawyers to remain tolerant without agreeing and to acknowledge that relativism is useful, on the basis that one declines to condemn the other because one is not completely certain that the other’s conduct is wrong in all circumstances. They lean strongly towards consciousness or awareness of moral complexity as being characteristic of an ethical

11 N Millich, ‘Ethical Integrity in the Legal Profession: Survey Results Regarding Law Students’ Veracity on Resumes and Recommendations for Enhancing Legal Ethics Outside the Classroom’, (1992) 24 Arizona State Law Journal 1181. 12 Deborah Rhode, ‘Ethics By the Pervasive Method’ (1992) 42 Journal of Legal Education 31. See also Neuner, op cit, n 7. 13 See generally Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252. 14 Deborah Rhode and David Luban, Legal Ethics, op cit, p 4, ‘ . . . we doubt the usefulness of any general distinction between ethics and morality.’ Rhode and Luban observe that others have drawn distinctions between the two concepts, but the authors see the distinction as spurious: thus while Hegel speaks of ethics as the customary norms within a specific society, that is, its ethos (GWF Hegel, The Phenomenology of Spirit, 266–94 – trans. A Miller, 1977) and others have spoken of a sharp distinction between theory-based morality and a custom-based ethics, ‘ . . . we believe that philosophical theories of morality arise from common sense ethical reflection and in turn, influence it.’ (p 4) 15 ibid, p 4. 16 We might also add paedophilia to this list. 17 Rhode and Luban, op cit, p 5: ‘some answers are more defensible than others.’

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lawyer and of the need for such lawyers’ diligent (though uncertain) judgment within that complexity. Wendell18 concurs with Rhode and Luban and refers to another challenge to moderate relativism. He suggests that, because the legal profession (along with the other social disciplines) is eager to be held in the same esteem as the natural sciences, it would like to emphasise a value-neutral ‘technical’ mastery of all aspects of law as its definitive feature. But even if such a desire could be demonstrated (which seems doubtful), such technical certainty is clearly unattainable because the business of law is interpretation, its practitioners are trained to seek out inconsistency, they respond to diverse situations and their own values are variable. Plurality of values in a profession is normal, desirable and necessary, since the judgment to discern how to behave in each situation best comes from awareness of the validity of different approaches, particularly when ‘the ends served by the practice of lawyering are fundamentally diverse and therefore valued in different ways.’19 Thus it could be said that opposing concepts such as mercy–retribution, liberty–collectivism, stability–freedom; public as opposed to private good, even truth-deception, are all two-headed manifestations of ethical choice, depending on the circumstances. And allowing for such choice describes what legal ethics tries to achieve in a more holistic and universal manner than do the rules of conduct, which vary across jurisdictions and cannot provide the precision which their drafters sometimes pretend. While professional conduct rules try to set out the essentially consensual, custom-based agreements as to when and where to choose between apparent opposites, they increasingly fail to satisfy because they pretend at a psychological level to deliver what cannot be achieved: certainty about moral choice. Such rules may be designed only to define when a lawyer is vulnerable to a charge of misconduct and are never actually promoted as moral guidelines, but that is their present psychological role in the profession and it is a role which will always disappoint. The Macumber 20 and Haneef 21 cases make this abundantly clear. Lawyers’ need to make profoundly uncertain moral choices ought always to consider the conduct rules but must still be able to act independently of what those rules might say. Historically, they have not always done so. The Illinois case of Alton Logan,22 released in 2009 after being imprisoned for 26 years for a murder he did not commit, is illustrative. Logan’s innocence was known by two lawyers who had acted for the real murderer, but they kept their knowledge secret for the entire period because they bona fide considered themselves bound

18 W Bradley Wendel, ‘Morality, Motivation and the Professional Movement’ (2001) 52 South Carolina Law Review 557. 19 W Bradley Wendel, ‘Value Pluralism in Legal Ethics’ (2000) 78 Washington University Law Quarterly 113. 20 Chapter 2.3.3; State v Macumber, 544 P.2d 1084, 1087 (1976). 21 Chapter 2. 22 See ‘After 26 years, 2 Lawyers Reveal a Killer’s Secret’, USA Today, 13 April 2008, at <www.usatoday. com/news/nation/2008–04–13-murder-silence N.htm?csp=34> at 4 January 2010. See also Peter A Joy and Kevin C McMunigal ‘Confidentiality and Wrongful Incarceration’ (Summer 2008) 23(2) Criminal Justice.


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by the local rule of attorney–client privilege. They would have spoken up if a future serious crime was intended by their client because that disclosure was permitted as an exception to the rule, but could not bring themselves to make their own exception in relation to this past crime, even after their client’s life had been saved by the commutation to life in prison of his own death penalty for another murder. And at a more mundane (but still damaging) level, lawyers working in publicly funded legal services are often confronted with the reality that appreciable numbers of contesting family law clients are likely to have both instructed the same public legal service in circumstances where the conflict of interest is not obvious to the lawyers concerned, due to poor funding of those services and imperfect conflict checking mechanisms. Such lawyers arguably should decide to ignore the fact that, once the conflict is discovered, they could save a lot of time and public funds if they ‘suggested’ an equitable solution to their clients’ dispute while keeping secret from both parties that they had looked at the files of the other. Whether lawyers do maintain confidences or not in these circumstances is unresearched, but the opportunity for short cuts in handling crippling file loads must give pause for thought. Uncertain moral choices are still the only real option in many legal environments and are dependent on a confused network of alliances, allegiances and fears,23 not necessarily informed by impersonal, rational processes. So-called emotional intelligences24 and different value claims, each important but not easily comparable, have a bearing on those decisions.25 The relationship between facts, emotion and values is now understood to be complex; and the technocratic positivist model of the legal profession is inadequate because there is no agreement as to ends and purely rational or ‘neutral’ professional behaviour alienates lawyers from their clients. In other words, individual lawyers’ awareness of complex ethical positions and their legal professionalism are indistinguishable. However, lawyers’ acceptance of ethical complexity does not mean that there can never be a path, approach or method for them to follow in making conflicting moral choices. Approaches are discernible, but will rarely amount to a single yellow brick road, unless that road is the one that recognises the need for complex, situational judgment by professionals when making ethical connections in a pluralist world. Accordingly, the second question for new lawyers (after their values awareness is explored) should not therefore be whether they agree with the need for ethical lawyers or if they have read the relevant conduct rules, but whether they understand why there is diversity in ethical approaches to legal practice and what is represented in that diversity. So what are the diverse ethical approaches or methods involved here? Rhode and Luban are at their most useful (for present purposes) in their endorsement26 of the ethical methods: the approaches that lawyers can take to resolving ethical 23 See, for example, Robert Jackall, ‘Whistleblowing and Its Quandaries’, (2007) 20 Geo. J. Legal Ethics 1133. 24 See, for example, Colin James, ‘Seeing Things As We Are: Emotional Intelligence and Clinical Legal Education’, (2005) 6 International Journal of Clinical Legal Education 123–49. 25 ibid, pp 117–18. 26 Rhode and Luban, op cit.

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quandaries when a moral choice is required. Consequentialism (utilitarianism), deontological theories (derived from the Greek word for ‘duty’) and virtue ethics are their three main alternatives. Each of these approaches or methods27 provides a notionally separate way for everyone, including lawyers, to decide or judge morally complex matters and hence to aspire to the professional quality of complex judgment. They are described as methods or approaches because they are concerned with how we go about deciding something rather than what we decide. In summary: Utilitarian ethicists are, in simplistic terms prepared to see individuals ● suffer when there is a greater good (for a greater number) at stake. They equate ethics with numerical survival of the greatest number and their consequential or teleological perspective is both common and compelling, often observed for example, among politicians trying to weigh up which public projects to fund and which to reject. Kant is the best known of the alternative ‘deontologists’, who value rights ● and fairness over consequences. His ‘categorical imperative’28 originally required only benevolence and fidelity but more recently, ‘Kantianism’ has shifted to the ‘moral rights’ of others, so that, for example, even if a consequentialist approach would argue that it is acceptable to torture a child to safeguard a million people,29 the moral right of that child not to be tortured takes precedence.30 Rights rather than ends or consequences characterise much of the approach of traditional legal ethics but consequences will sometimes be more important than individual rights. Again, the point is just that there is a balance to be discovered and ‘the calculus of consequences do not tell the whole story.’31 Transcending both these approaches are virtue ethics, an ancient ● (but increasingly rejuvenated) character-based philosophy derived from Aristotle’s Nicomachean Ethics.32 Lawyers accustomed to hard-nosed environments will tend to glaze over at the mention of classical scholarship, but ignoring virtue ethics as worthy of understanding would be a costly decision in itself. The virtue ethicist is a ‘good’ person and therefore supposedly makes ‘good’ decisions regardless of rights or consequences. Preston describes Aristotle’s theorem of virtue as ‘happiness’, but this is not some

27 See Marcia Baron, Philip Pettit and Michael Slote, Three Methods of Ethics – A Debate: For and Against Consequences, Maxims and Virtues, Blackwells, Oxford, 1997. 28 Immanuel Kant, Foundations of the Metaphysics of Morals, 1785 (Lewis White Beck trans, 1959, BobbsMerrill, Indianapolis, 2nd ed, 1990, 46). 29 US lawyer and Harvard teacher Alan Dershowitz has insisted that governments be permitted to conduct ‘accountable’ torture of terrorist suspects who are likely to know where and when the next bomb is to be exploded. See Fergus Shiel, ‘Defender Bows to the Need for Torture – With Accountability’, 31 March 2004, The Age, Melbourne, 8. 30 Rhode and Luban, op cit, p 10, citing Ronald Dworkin, Taking Rights Seriously, Duckworth, London, rev. ed, 1978, p xi. 31 ibid. 32 See Justin Oakley and Dean Cocking, Virtue Ethics and Professional Roles, Cambridge, Cambridge University Press, 2001; Tim Dare, ‘Virtue Ethics and Legal Ethics’ in Duncan Webb (ed), Seven Essays on Professional Ethics, Victoria University of Wellington, Wellington, 1998, p 141.


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sort of self-indulgent euphoria.33 Rather it is ‘a state of contentment, a life integrated happily with a sense of purpose, lived out in community.’34 The qualities that such a person exhibits in order to achieve a proper life are the virtues. Together, the virtues: courage; temperance; magnificence; pride; good temper; friendliness; truthfulness; wittiness; shame and justice; to which Aquinas added faith, hope and charity,35 constitute the ethical life. The essential wisdom of virtue ethics is that the morality of what we do may be most fundamentally judged by who we are as individuals. This concept has become very attractive to modern ears, especially those less satisfied with often highly antagonistic distinctions between rights and consequences. The potential of a virtue approach to assessing lawyers’ ethics is obvious once its implications are explored. The usefulness of lawyers ‘talking virtue’ (character) rather than rules, is enhanced because its emphasis on both context and purpose represents a unifying focus which both consequentialists and Kantians would not wish to ignore. Thus Luban suggests that the most important questions of ethics concern our character,36 because ‘[i]ndividuals who focus on rights talk past those who focus on consequences, and the possibilities for consensus have become increasingly remote.’37 A major criticism of virtue ethics as a universal decision-making method is that it might ignore the importance of circumstances and ‘situations’ in decision making.38 Virtuous principles can lead in conflicting directions – for example, honesty and loyalty – creating difficulty in predicting ‘right’ conduct. This criticism derives from empirical evidence which clearly shows someone can be honest or compassionate in one situation and yet display the opposite characteristics in another.39 But this view is erroneous, as Alice Woolley indicates: Virtue ethics [says] that a person of good character will have virtues that orient him towards conduct consistent with the maintenance of those virtues . . . A person with the virtue of honesty, for example, will tend to choose conduct consistent with honesty over conduct which is not. In order to exercise the virtues a person must also have phronesis or ‘practical judgment.’ It is not enough to value honesty; you must also have the judgment to understand what honesty requires in a particular situation and, more significantly, to know how to weigh honesty and pursue it consistently with other 33 Noel Preston, ‘Virtue Theory – Links to Professionalism’ in Understanding Ethics, Federation Press, Sydney, 2nd ed, 2001, 58. At p 59: ‘Arete is the Greek word for virtue, but it also means ‘excellence’’’. 34 ibid, p 58. 35 Thomas Aquinas (c. 1224–1274), Summa Theologiae, I–II, 62, a. 1. 36 David Luban, ‘Epistemology and Moral Education’, (1983) 33 J. Legal Ed. 636. Luban cites Alasdair MacIntyre’s view that we argue all the time about moral issues because there is no longer any shared moral language. See Alasdair MacIntyre After Virtue: A Study in Moral Theory, Duckworth, London, 2nd ed, 1985. 37 Rhode and Luban, op cit, p 11. An Australian example from 2003–04 concerned Prime Minister John Howard’s ‘consequences’ approach to mandatory detention of ‘illegal’ migrants (‘a flood of refugees’) as compared to the emphasis by Julian Burnside QC upon those detainees being denied their human rights while in detention. There was no discernible meeting ground between the two protagonists on this issue. Rhode and Luban state at p 11: ‘[T]he central question for legal ethics is often what the good lawyer should do under circumstances of moral complexity or competing values. An approach that focuses on character as a unitary concept may be helpful in addressing the demands of particular roles under such circumstances.’ 38 See, for example, John M Doris, ‘Persons, Situations, and Virtue Ethics’ (1998) 32:4 Noˆ us 504. 39 This issue is explored below in 3.6 ‘Ethical Complexity and Moral Courage: The Requirement to Judge’.

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virtues such as compassion or benevolence. Virtue ethics eschews the notion of specific rules as the source of ethical guidance – the Kantian position that, for example, because honesty is required by the categorical imperative there are no circumstances in which a lie is justified – and argues instead that it is our virtues of character which, when exercised through our practical judgment, will lead us to ethical action.40 . . . In other words, virtue ethics recognizes and indeed asserts, far more than its deontological counterparts, the relevance and significance of circumstances in influencing decisions about what constitutes virtuous conduct. The virtues motivate ethical decisions, but it is through judgment of what the circumstances require that ethical decisions are made. Predicting behaviour from virtue ethics requires consideration of both character and circumstances.41

Regan is another who sees virtue ethics as very promising for regulatory (assessment) purposes: Finally, we need to consider how to take account of the emerging work on situationist moral psychology that suggests that character is less global, and circumstances are more influential, than we conventionally believe. This research requires that we assess more critically the reliance in many quarters on virtue ethics as the foundation for promoting desirable conduct by lawyers. Doing so may shed light on how a compliance approach can be used most effectively.42

So it is important therefore to assess individuals’ likely responses to contrasting situations, particularly those who are highly exposed to commercial versus professional environments of deceit,43 to gain a comprehensive view of an individual’s ethical character. And it is therefore also likely that virtue ethics has particular strength as the most fruitful ethical method in helping lawyers to come to terms with ethical complexity and making allowance for ‘situations’ and ‘circumstances’. The diagram in Figure 3.1 below sets out the dynamic relationships between these three generic ethical approaches. A practitioner faced with a difficult case ahead of them might attempt to decide which of these approaches most appeals in deciding a contentious ethical point. If, for example, they were to represent an alleged paedophile who denies his guilt but will not give evidence in his own defence, the practitioner might initially fix their gaze on the consequentialist (utilitarian) objective of securing an acquittal by all means possible, and lead supposedly concrete evidence of innocence, including alibi evidence, which they personally do not believe to be true. Alternatively, if they were to choose a deontological (Kantian) approach from the beginning, they might have so many credible doubts about the alibi and its potential to prejudice a fair trial that they decline to call that evidence at all, even against the protests of their client, who knows that (in the circumstances), if they were to fire their lawyer, the 40 Alice Woolley, ‘Tending the Bar: The “Good Character” Requirement for Law Society Admission’ (2007) 30 Dalhousie LJ 27, 61. 41 ibid, p 66. 42 Milton C Regan, ‘Risky Business’, (2005–06) 94 Geo. LJ 1963, 1983. 43 Joseph Badaracco and Allen Webb, ‘Business Ethics: A View from the Trenches’, (1995) 37 California Management Review 8.


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prosecution would be aborted and they could spend another 6–12 months in jail awaiting a retrial. But a practitioner who is bona fide aware of their own virtue and tries to practice from the virtue ethics perspective, would weigh up both these approaches and ask the question: Whose good is most deserving of protection? In the end, they might act either as a consequentialist or a Kantian would do or, under the influence of a virtue approach, they might refine their initial utilitarian preference and decide to exclude the alibi evidence while continuing (as the rules of advocacy often provide), to cast doubt on all prosecution evidence without leading any affirmative evidence of their own. The point is that a virtue position can isolate the predispositions of the advocate as an actor and leaves them less vulnerable to acting according to a preset position of the sort that conduct rules often prescribe. Awareness of alternative ethical methods such as that represented by the ‘virtue arc’ (Figure 3.1) promotes a whole-of-situation perspective which is both morally liberating and also morally responsible. ‘Process’ (or Kantian) decisions, made along the way to the project objective

Project Commencement [point of ethical decision-making]

Project Objective [the utilitarian focus]

Figure 3.1: The virtue arc44

The strength of virtue ethics is that it does not have to sweep away all other approaches to ethics or require lawyers to become slaves to any particular ethical method in their decision making. In the final analysis, the necessary quality is one of judgment, something reminiscent of Rawls’ notion of ‘moral intuition’: A moral framework proposes a set of principles that should accommodate our considered moral intuitions. Having found such a set of principles, we may use them to revise our intuitions. Our intuitions thus modified may then be used to revise our principles, and so on. Eventually . . . we should arrive at a ‘reflective equilibrium’, between principles and intuitions, in which neither requires further adjustment. 45

Rhode and Luban also emphasise that all methodologies remain just guides and that lawyers still have to make personal decisions in particular circumstances: ‘In the final analysis, we will often have to rely on a kind of second-order intuition. While we may look to moral theories for guidance, we still need to make 44 Adapted from Adrian Evans and John Howe, ‘Enhancing Corporate Accountability through Contextual Ethical Exercises in Corporate Law Teaching’, (2007) 7(2) Journal of Corporate Law Studies 337–55. 45 Rhode and Luban, op cit, p 11, citing John Rawls, A Theory of Justice, Clarendon Press, Oxford, 1972, pp 46–53.

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intuitive judgments about which moral theory is most appropriate to the case at hand.’ 46 The ethical ‘trick’ is to judge between competing priorities when none are wholly satisfactory and then to have the courage to act consistently with the judgment. Of course, the ethically aware lawyer is not guaranteed to behave ethically; any more than a gifted geneticist will not clone a Hitler, given the opportunity. Or to put that weakness differently: ‘It is not evident that I become clearer about what I am about to do, just because I have a strong sense of who I am . . . ’ 47 But ethical awareness must precede truly trustworthy action and its presence forestalls later pleas of ignorance about the complexity of the choice. An individual ability to make these complex judgments and then to decide courageously to act (not whether an individual lawyer can apply a local set of conduct rules or is proficient with applying one ethical perspective in all cases),48 now demands attention when assessing lawyers’ ethics.

3.3 Lawyers’ ethical types Efforts have been made to go beyond general ethical methods applicable to all disciplines and subdivide the bases of lawyers’ ethical functioning into types, in the interests of allowing for the notorious peculiarities of the role and to take account of the complicated nature of conflicting loyalties faced by lawyers. Lawyers who understand differing ethical types will gain access to another tool to improve their decision making: understanding their own preference for a particular type. Atkinson, for instance refers to different lawyer types: 1, 2 and 3. Type 1 is the neutral partisan, or Rambo, who will do anything as long as it is inside the strict letter of the law. Type 2 covers ‘officers of the court’, who constrain themselves by identifiable public norms of justice that will be narrower than the strict letter of the law and where ends are measured by justice, the means used, truth and honour, not mere legality. Type 3 is the lawyer vigilante or individualist, who exploits loopholes within the letter of the law for purposes which s/he alone believes to be morally right.49 While Atkinson’s typology is attractive to many, its language strengthens differences rather than puts forward a more credible matrix of linkages and contains too little of the personal and compassionate within its formulation. 46 ibid, p 12. 47 ibid, p 62. 48 Andrew Francis, ‘Legal Ethics, the Marketplace and the Fragmentation of Professionalism’, (2005) 12 International Journal of the Legal Profession 173, 175–6. Francis makes a plausible case that the days of a single ethical code for the profession, even a single code for the profession in one jurisdiction, are well and truly past. He goes further and suggests that the multiplicity of sub-structures and specialisations (for example, specialist barristers’ chambers in the City of London) within modern legal professions means that the possibility of effective enforcement of a single code by a single lawyers’ association, is also questionable. 49 R Atkinson, ‘A Dissenters Commentary on the Professionalism Crusade’ (1995) 74 Texas L Rev 259.


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Kohlberg’s theory of moral development50 also has implications for lawyers’ self-awareness, but is limited in its contribution to ethics assessment because it allows for ethical complexity only in its last category. Kohlberg proposed six distinct stages of moral development, ranging from immature to increasingly more complex/sophisticated: Stage 1 is Punishment and Obedience – basic; Stage 2 is Instrumental Relativist – pragmatic, ‘you scratch my back and I’ll scratch yours’; Stage 3 is Interpersonal Concordance – good behaviour is that which others approve of – safe, nice, friendly; Stage 4 is Law and Order – laws govern behaviour and obeying the law is a duty; Stage 5 is Social Contract/Legalistic – individuals are aware of the ‘relative’ nature of personal values and behave according to social utility (that is, utilitarianism governs all); and finally Stage 6 is Universal Ethics, which asserts that right behaviour is governed by chosen universal ethical principles that transcend laws, but throws little light on what those principles might be. Kohlberg’s approach does incorporate a useful sense of progression from successive stages of moral responsibility to higher stages,51 but those higher level stages, at which many lawyers’ choices must be exercised, do not offer sufficient subtlety. In the end, they merely beg the question as to how to decide what to do in a mature environment of ethical choice and complexity. It is necessary to look further for a categorisation of ethical types that will provide sufficient richness to allow lawyers and assessors alike to understand and accept diversity of preference as a more or less stable concept, capable of supporting considered choices that do not necessarily imply superiority or inferiority. Parker has expounded on prior insights52 to produce a more useful synthesis by categorising lawyers’ moral positions according to four distinct ‘types’, none of which holds any innate superiority over the other. It is suggested that most lawyers will prefer to adopt one of the following positions as a description of their most common or preferred legal ethical approach, though most will also alternate between them or apply a mixture of approaches to different situations. After first understanding of their preference for a particular ethical type, lawyers’ ability to reflect on the differences between preferences is also important. Their knowledge of legitimate alternatives to their automatic ethical preference in resolving a 50 Lawrence Kohlberg, The Psychology of Moral Development, Harper and Row, San Francisco, 1984, pp 636–8. 51 Susan Daicoff, ‘Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism’ (1997) 46 The American University Law Review 1337 at 1396–7 notes Hartwell’s finding that the ‘Kohlbergian stages’ of law students can increase significantly as a result of some professional responsibility courses. See S Hartwell, ‘Promoting Moral Development Through Experiential Teaching,’ (1995) 1 Clinical Law Review 505, 522–30. Kohlberg’s stages also provide a setting in which to understand some of the common self-deceptions which interfere with ‘right’ action, for example, Utset’s concept of ‘time-inconsistent misconduct’. This involves a psychological phenomenon which allows people to delay taking morally necessary actions because of the short-term cost of action, and similarly permits them to engage in immediate misconduct because of its short-term rewards: a negative consequence of limited moral maturity. See generally Manuel A Utset, ‘A Model of Time-Inconsistent Misconduct: The Case of Lawyer Misconduct’, (2005) 74 Fordham Law Review 1319. But even with this added subtlety, Kohlberg’s categorisation places ethical growth in a very linear model which denies lawyers’ experience of the need to constantly reconsider plausible ethical alternatives. 52 Christine Parker, ‘A Critical Morality for Lawyers: Four Approaches to Lawyers Ethics’, (2004) 30 Monash Law Review 49, pp 53–6.

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situation will plausibly increase the chances that their ultimate decision will be a considered decision, and may therefore be moral. The four ethical types, which are also shaded visually in Figure 3.2 according to one view of their ‘popularity’, are as follows: the adversarial or zealous advocate is often dominant (hence the darker ● shading) and is oriented to the ‘professional role’, paradoxically acquiescing to the client’s demands and reluctant to see an essential function beyond that of their client’s agent, the responsible lawyer who (slightly less dark and in tandem with Kant), ● firmly and sometimes without much humour, gives priority to the fairness of the dispute resolution process and lawyers’ duties to courts, the moral activist, often almost transparent in the ethical vista, who is ● typically utilitarian and concerned for socially just outcomes, though comfortable with whatever other method will advance social justice, and the ‘ethicist (or relationship) of care’, who might be said to aim for a neutral ● shade and travels in fellowship with Aristotle’s virtues by nurturing the relationship between lawyer and client, while seeking ‘holistic’ solutions to their mutual objectives.53 Responsible Lawyer

Zealous Advocacy

Ethics of Care

Moral Activism

Figure 3.2: Interrelating legal ethical types

These classifications are presented as a Venn diagram because they are interrelated. Each merges into the other and any one lawyer will comfortably and coherently ‘own up’ to the intersections of these categories in their own decision 53 ibid, p 56.


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making. They assist in making the ethical choices confronting lawyers in particular both more acute and more accessible than other potential categories. They build upon general notions of ethical type that are almost immediately understood within legal culture. Lawyers who are able to consciously determine that one of the four ethical approaches above (or even a combination of more than one such approach) most closely meets their own preferences are, regardless of that choice, likely to be better positioned to understand the wider complexities of ethics. The important point here is that a lawyer’s personal awareness of their ability to make an ethical choice from these categories in reaching a particular decision is worth including in any catalogue of approaches to assessing ethics. The consciousness of complexity in ethical choice, not the propriety of the choice itself or of willingness to simply comply with any single code provision,54 is the key quality. One final comment is needed on the distinction between the primary classification system of utilitarian, Kantian and virtue ethics methods in relation to what might be considered this secondary classification of lawyers’ types. Each classification measures different things and is complementary rather than competitive, because lawyers are both private citizens with general ethical methods and practitioners with occupationally specific attitudes to legal ethics. Utilitarian, Kantian and virtue ethics are classifications of general ethical methods used by everyone (whether consciously or otherwise) while Parker’s four-part classification of lawyers’ ethical types only has a strong resonance for lawyers. Some lawyers will prefer to consider their options only in terms of general ethical methods while others will find the four types as more accessible. It is not always easy or even necessary for lawyers to decide whether they are utilising an ethical method or a legal ethical type in seeking understanding about how to act in a particular manner, but ideally, a lawyer will try to practise law in a virtuous manner with an awareness of their preferred legal ethical type, and if not determinedly virtuous then at least also aware of their general ethical method. To the extent that many lawyers are aware of their ethical type, it is likely however, even in the absence of relevant research findings that they see themselves as closely identifying with an imperative to achieve what their client requires; that is, as zealous advocates. There are good reasons to honour that commitment and equally good reasons to be cautious, even sceptical, about its application.

3.4 Strengths and weaknesses of the dominant approach to legal ethics The major (sometimes called the traditional or dominant) approach to legal ethics is zealous advocacy or more generally, role morality. Lawyers in adversarial 54 See generally, Francis, op cit, n 48, p 173. Francis asserts (p 187) that the many diverse manifestations of legal workplaces mean that legal professionalism is probably past the point of being defined (in part) by the existence of a key traditional descriptor – a single ethical code.

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systems naturally relate to this category; but do not necessarily understand that they are identifying with an ethical type. Even less do they appreciate that they have choices about whether to be zealous just for their clients or also to consider caring for others involved in the particular case. And zealous lawyers can think mistakenly that they must approach every case in a fearless, aggressive manner. Although fearless advocacy seems fundamentally important when a powerful State apparatus such as a Director of Public Prosecutions moves against a single individual, the vast majority of advocacy situations are not concerned with that extreme situation. Observers are able to plausibly criticise role morality in the legal profession because of its perceived connection to aberrant behaviour, whether occurring in a criminal trial or not. A central element of legal ethics – integrity – can be sorely tested by arguably over-zealous advocacy inside a trial, as painfully illustrated by Whitton, who manages to attack the jugular of the concept very combatively: Fabled Sydney solicitor John . . . Marsden . . . has again raised a haunting question: Is client-based ethics perhaps a county in south-east England? In a memoir which sounds like a Popeye rap number, I Yam What I Yam, he records his distress at being ethically obliged to get Ivan Milat [who was later compellingly convicted of numerous brutal murders of foreign backpackers in New South Wales] off rape charges in 1974. ‘Then I put to her something that has haunted me to this day . . . I suggested that her sexuality may have had something to do with what had occurred with Ivan Milat. Crying and under stress, she ended up agreeing – and in that moment I knew we had won . . . we had put into their [jurors’] minds that the sex may indeed have been consensual . . . I am not proud of my conduct that day . . . I had to act according to the ethics of the profession . . . I had a job to do and I did it.’55 [parenthesis added]

This example highlights a contentious function of the legal profession – the necessary (but painful) emphasis upon cross-examination of vulnerable people whom the rest of the world senses to be victims. But Marsden, if he was reported correctly, was unconvinced that his actions were ‘right’ in all senses. In going on the record he was asking for a measure of social forgiveness based on a role morality he considered necessary, even in defence of a person later discovered to be a particularly devious and brutal killer and trying to convey the reality that, but for his cross-examination applied with the traditional skill, there would be a greater risk of conviction of innocents. Such morality is very hard to convey to a community that is ready to believe the worst of lawyers and some of their clients. Yet this traditional approach to legal ethics requires respectful but determined advocacy, if the criminal justice system is to function at all and it obviously commands the respect of many lawyers and judges. The traditional approach to legal ethics derives from and remains accepting of so-called moral disengagement or ‘role morality’. It comfortably asserts that 55 Evan Whitton, ‘Reptiles Hew To a Higher Moral Standard than Herpetoids’, Justinian, Sydney, 22 September 2004. Ivan Milat was later convicted of the murders of seven international backpackers and the disposal of their remains in the Belangalo Forest, New South Wales. See <www.thecrimeweb.com/ivan milat1.htm> at 8 December 2006.


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rule-observing, disinterested advocacy works well even in transactional and commercial contexts. Opposing parties are said to be in a more-or-less equally resourced ‘battle’56 where an impartial observer, the judge, benignly watches everything and, because s/he understands what the rules of evidence and ‘bar ethics’ require,57 is in a position to discern truth and hence deliver a just outcome of any dispute. There is much wisdom and social necessity in this assertion, so long as the underlying premises apply: both sides to the dispute are equally resourced and fair rules of evidence are administered by a competent judge. In fact, the resource condition is far less frequently met in the many jurisdictions where legal aid is less than adequate58 and the rules of evidence, especially in relation to the cross-examination of victims of sexual assault59 have often been less than fair. To this considerable extent, the traditional approach to legal ethics can be modestly described as legitimate in well-resourced contexts but inadequate in all others. In consequence, many exponents of role morality, including distinguished criminal lawyers, would today limit the traditional model to criminal proceedings60 because of the public policy that advocates personal opinions are irrelevant to their duty to represent sometimes odious defendants61 against a powerful State and the relative availability of legal aid for serious criminal cases. Yet many go still further and include, by inference, civil proceedings, so long as this dutiful role of the advocate is clearly understood by clients.62 Justice Cummins of the Supreme Court of Victoria appears to share this view: [A]s Mr Justice Barry put it in an address in 1941 to the Albury Law Society: ‘The fundamental misconception which affects the public approach to the art of the advocate and which supplies the basis for the mistrust with which the ordinary man views the profession is the inability of the public to recognise that the sincerity of the advocate is not in question.’63 56 Ken Crispin, ‘Ch 8: Prosecutorial Ethics’ in Stephen Parker and Charles Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues, Clarendon Press, Oxford, 1995, p 171. Justice Crispin was then Vice-President of the ACT Bar Association. 57 Philip D Cummins, ‘An Ethical Profession’ (Paper presented at the ‘Dealing With Ethical Dilemmas’ Seminar, Law Institute of Victoria, Melbourne, 28 February 2002). Justice Cummins states (1): ‘The distinguishing characteristic of a profession is that personally imposed upon each of its members is an enforceable network of articulated ethical duties.’ 58 See, for example, Mary Anne Noone, ‘State of Legal Aid’ (2001) 29 Federal Law Review 37; George Williams, ‘Justice for All has Become Justice for Some’, The Age, Melbourne, 3 January 2007, 13. 59 See generally Jason Silveri ‘Sex Offences Report Urges Cultural Change’ (2004) 78 LIJ 24. 60 See for example, Crispin, op cit, n 56, pp 171–5. 61 C Wolfram, ‘A Lawyer’s Duty to Represent Clients, Repugnant and Otherwise’ in David Luban (ed) The Good Lawyer, Rowman & Allanheld, Totowa, NJ, 1984. 62 See, for example, Justice Cummins, op cit, n 57, pp 8–9: ‘When your client tells you, in response to your fulfillment of this requirement [that you must take a personal responsibility for ensuring that the process of discovery proceeds properly], that you are commercially na¨ıve, tell your client that you are forensically prescient. The quickest way to losing a commercial cause is not to disclose a relevant document which is produced in cross-examination.’ 63 ibid, p 6, citing Barry J, ‘The Ethics of Advocacy’ (1941) Australian Law Journal 166 and 201. Justice Cummins is confident that many misconceptions about lawyers’ ethics can be a product of a simple lack of clear thinking. Thus, in relation to the modern disease of lawyers’ undetected conflicts of interest, he says (12): ‘What bedevils the prohibition of conflict of interest is a confusion of purposes. The purpose of prohibition of conflict is not to remedy an offence or a failure. The purpose of prohibition of conflict is to prevent an offence or a failure. Prohibition of conflict operates upstream of offence or failure. It is preventative. It is prophylactic. Thus, it is no answer to breach of conflict to say that no harm in fact occurred, that the client in fact was not

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As Cummins says: ‘Properly understood, there is never a conflict between the [duty to the client and the duty to the law]’,64 because the duty to the client is no more than the duty to the court allows and advocates are simply bound to comply. Of course, there are real empirical problems with this bold prescription – particularly in relation to the use of unethical tactics in pursuit of a self-defined ‘greater justice’65 – but the essential importance of the traditional model is its longevity and utility within the criminal law environment. Nevertheless, Cummins’ confidence in role morality is limited by another factor – the truthfulness of clients. An advocate’s confidence in a client’s instructions is often an issue of judgment. Occasionally, the suspicions of an advocate as to the story told by their client can be so well-based as to justify an (objective) allegation of collusion on the part of the advocate, if those suspicions are simply ignored. The lawyer’s silence in such circumstances may be practically indistinguishable from an actual conspiracy with the client. When that is the case, a proper acceptance of role morality would arguably require self-withdrawal from the case or, if that is no longer possible (in a criminal proceeding) because a hearing is well underway, a refusal to allow any further affirmative evidence of innocence to be put to the court. But there remains a real question: How many advocates have such deep gut feelings about a client but consciously decline to ask a question that will terminate a proposed defence? They might choose to tolerate their deep suspicion because the present system requires clients to be represented by someone, but this requirement does not demand that the representative enters a not guilty plea on behalf of their client; merely that they be represented. Traditional role morality has taken a sustained beating in recent decades because public suspicion about the above ‘collusion’, whether it exists or not, has steadily crystallised into a belief that lawyers do lie on clients’ behalf, they know they are lying, they lie routinely66 and they have scant regard for the systemic consequences of that perversion.67 This generally negative public perception,

harmed. If harm, a loss, a failure, an offence occurred you would be dealt with for a consequential matter. Prohibition of conflict is an antecedent matter. That is why the expression ‘potential conflict of interest’ is tautologous . . . conflict is an objective question. There is no criterion, or excuse, of comfort. It is no analysis, no answer, to say ‘There is no conflict because I feel comfortable about it.’ If a situation of conflict objectively exists, all that answer demonstrates is that you are ethically ignorant.’ 64 Cummins, op cit, n 57, p 9. 65 Thomas A Zlaket, ‘Conference Proceedings – Conference on Professionalism’, (2001) 52 South Carolina Law Review 443, 535–8. Chief Justice Zlaket of the Arizona Supreme Court, is of the view that there ought to be an ethical rule that says lying by counsel is punishable no matter what, because as soon as exceptions are allowed (for example, the ‘Kill a Mockingbird’ scenario of Atticus Finch’s decision to tell a lie to ensure that an innocent man was saved) the way is open to all sorts of creative exceptions that reduce the value of honesty to a functional zero. Zlaket considers (536–8) that the ‘noble lie’ example bears little relationship to the day-to-day problems in court: once exceptions are allowed, ‘you can kiss the rule goodbye’. 66 Fiona Buffini, ‘The Decline of Ethical Behaviour’, The Australian Financial Review, Sydney, 19 April 2002. Buffini recited how ‘Anne’, a Sydney lawyer, had begun to avoid telling people that she was a lawyer. In the aftermath of the initial McCabe decision early in 2002, which first implicated law firm Clayton Utz in the destruction of documents, Anne said: ‘At least with the Enron thing I could tell people I wasn’t an accountant, but now I’ll have to think of something else’. 67 Robert Gordon, ‘Why Lawyers Can’t Just Be Hired Guns’ in Rhode, Ethics in Practice: Lawyers’ Roles, Responsibilities and Regulation, OUP, New York, 2000, pp 42–55.


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illustrated by the cases in Chapters 1 and 2,68 is of course very demoralising to those lawyers who think much about it or who really want to take a different approach, perhaps because there has been no plausible method to limit future occurrences.69 Robert Gordon is one of those who, at least in the US context, make no bones about the real priorities of role morality: [L]awyers at the apex of their profession have hardly renounced their claims to elite incomes, elite status, or elite influence in legal policy making. Lawyers remain perfectly happy to deploy that influence to advance their own interests, and their clients’ and to maneuver around the controls of democratically elected law if it gets in their way. All they have renounced are the social responsibilities traditionally attached to the power and opportunity conferred by elite status. The sense of paralysed helplessness descends upon them only when they are asked to consider other interests besides their clients’ and their own.70

Despite such criticisms, advocacy based on role morality is not seriously in danger of being discarded as the preferred basis for legal ethics – even in civil proceedings – because such advocacy remains a major and essentially legitimate support for the traditional (and dominant) adversarial model of dispute resolution. However, it is truly disinterested advocacy rather than a shallow role morality that is vital to the ‘public good’ and supports the overall authority of the law. Some writers have attempted to restructure role morality as a disinterested, non-partisan quality, in recognition that the old notion is overly simplistic and can lack the essential qualifications provided by context. Thus Wendel argues for his ‘authority conception of legal ethics’ as both a narrower concept than traditional role morality and also a fundamental support for that morality: Under the authority conception of legal ethics, lawyers are duty-bound not to frustrate the achievement of law by reintroducing contested moral values into the domain of law, either in the guise of principles of interpretation or as the basis for an ethically motivated decision to act or not to act on behalf of a client. In other words, lawyers should not treat the law instrumentally, as an obstacle to furthering the autonomy of their clients, but instead should treat it as an inherently valuable achievement of a pluralistic democracy. Lawyers have an obligation to preserve the common framework of law and respect for legal institutions as public goods, rather than permit clients to free ride on trust, expectations of cooperation, and compliance by others. Lawyers may of course challenge the status quo and need not acquiesce in the continued vitality of an unjust rule, but they are obligated to seek to modify the law overtly, not through covert means, such as creating complex structures of entities to prevent the detection 68 See Chapter 1, n 10; Chapter 2 notes 10, 15, 18, 24, 35, 37, 38, 42, 44, 51 and 55. 69 The advent of regional and even national online databases listing lawyers’ transgressions for the benefit of the public may offer some assistance here, to the extent that detailed historical information about lawyers’ past misdeeds could limit future misdeeds by discouraging both repetition and future clients (sic). See Chris Merritt, ‘States to Name and Shame’, The Australian Financial Review, Sydney, 7 May 2004, 55. 70 Robert Gordon, ‘Portrait of a Profession in Paralysis’, Book Review of Deborah L Rhode, In the Interests of Justice: Reforming the Legal Profession (2002) 54 Stan. L. Rev. 1427, 1445. See also Robert W Gordon, ‘A New Role for Lawyers? The Corporate Counselor After Enron’, in Susan Carle (ed) Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader, New York University Press, New York, 2005, pp 371–84.

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of a sham transaction or withholding relevant information in response to a legitimate discovery request in litigation.71

Wendel’s approach is to accept a certain level of unfairness associated with the ‘authority conception’ because he judges, on a bona fide but essentially positivist basis, that the justice system is still more or less a functioning entity. He suggests that close enough to effective functionality is good enough, but for whom? If the Rule of Law is functionally inaccessible to the poor and not-so-poor alike, his ‘satisfycing’72 could simply be a euphemism for denial. The observation of just one critic among many of the whole edifice of role morality, Glasbeek, is that: ‘many have lost sight of the fact that law in a liberal capitalist democracy will, when push comes to shove, deny democracy its place and support liberalism only to the extent that this is consonant with capital’s needs’.73 Wendel would not entirely agree with Glasbeek’s bleak analysis, but there is something of Glasbeek’s pessimism in Wendel’s determination to assert that, even if there is a degree of unfairness in the processes of justice and consequential doubts about the morality of those processes, practitioners are nevertheless bound only by ‘the settled law’, because that law is the baseline of this legitimate ‘authority’. The significance of Wendel’s contribution is his evident desire to rein in the perceived amoral legal technician74 and in so doing he has added some precision to the discussion of the dominant model of legal ethics and identified with those who would confine its operation to litigious environments, perhaps even to criminal cases. Nevertheless, the weakness of his final position is that, outside of the special case of criminal practice, the ‘authority conception’ is too sanguine of parties’ resource inequality or systemic corruption and offers insufficient encouragement to lawyers to seek an active ethical basis to challenge such injustice. 71 W Bradley Wendel, ‘Civil Obedience’ (2004) 104 Columbia Law Review 363. Wendel further states (p 365): ‘The authority of law depends on its capacity to enable collective social action despite ethical pluralism. The role of law, as I will argue, is to resolve and supersede the normative controversy that is the subject matter of personal ethics or moral philosophy. Law exists in order to provide a framework for coordinated social action in the face of persistent moral disagreement.’ 72 The term is defined by Krippendorff as a technique for achieving an acceptable balance in objectives where it is too difficult – because there are too many parameters – to achieve an ‘optimal’ objective or ‘best’ solution. Parker states: ‘The satisficer’s philosophy is that in real-world problems there are too many uncertainties and conflicts in values for there to be any hope of obtaining a true optimisation and that it is far more sensible to set out to do well enough (but better than has been done previously)’. Private communication to author by Stephen Parker, 2001. See Klaus Krippendorff, A Dictionary of Cybernetics, The American Society for Cybernetics, Norfolk VA, 1986. 73 Harry Glasbeek, ‘Looking Back Towards A Bleak Future for Lawyers’ (2001) 19 Windsor Yearbook of Access to Justice 263. Glasbeek laments that he had hoped, but now realised otherwise, that the law would provide fertile soil to wage a transformative struggle to deal with human subjugation. In fact, he asserts (p 293), two decades of Canadian law has seen that law used to effectively ‘blunt the possibility of radical change’. 74 See, for example, this comment: ‘Lawyers are very adroit in taking refuge behind the principle of agency, the technocratic veneer of legal doctrine and universalised language so as to denude their handiwork of moral content, while fashioning a course of action to evade or effect minimal compliance with local laws. Such strategies conduce to what Peter Fitzpatrick percipiently refers to as the “innocence of law”.’ See also Margaret Thornton, ‘The Demise of Diversity in Legal Education: Globalisation and the New Knowledge Economy’ (2001) 8 International Journal of the Legal Profession 37, 40–1.


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3.5 Ethical complexity Yet there are also real signs that the earlier, almost slavish focus on ‘zealous advocacy’ and ‘neutral partisanship’ – as the basis of professional legal ethics in the United States at any rate – ought now to be moderated by the view that ‘ . . . ethical lawyering involves not the suspension of moral judgment but rather the exercise of it . . . ’75 As sociologists with close connections to the law, Abel and Lewis are among the many leaning confidently away from role morality and towards a more textured assessment of the basis of lawyers’ ethical responsibilities. Their insight is that positivist technical knowledge and understandings of how that knowledge is applied in particular circumstances – a normative question – are inseparable dimensions of the lawyer’s art: It is not easy to disentangle expertise from the moral claims of professionalism: concern for the public interest or the client, altruism or disinterest. These warrants are clearly distinct as ideal types, although professions often present moral issues as though they permitted purely technical solutions.76

Abel and Lewis are well known for their assertion that it is not what (or even whom) lawyers know, but what they can do, that constitutes the essential legal service – know-how – rather than formal legal knowledge, and therefore ‘It is difficult to construct an account of these various kinds of knowledge, mistake or incompetence that omits all reference to the values underlying the legal system and lawyers. Clearly knowledge and expertise cannot be understood without regard to purposes.’77 This powerful observation, that the ethical milieu of a lawyer depends not so much on a general role but more on the precise mix of public and private interests as applied to highly specific factual situations – in other words, to contexts and situations – is a more useful characterisation of the purpose of legal ethics in the postmodern era. It is also a conception closely aligned with a virtuous understanding of ethics. It is axiomatic that lawyers are themselves a part of the context and are instrumental in affecting the actual law. Also, their own values 75 Sharon Dolovich, ‘Ethical Lawyering and the Possibility of Integrity’, (2002) 70 Fordham Law Review, 1629. 76 Richard L Abel and Philip S Lewis, ‘Putting Law Back into Sociology of Lawyers’ in RL Abel and PS Lewis (eds) Lawyers in Society: Comparative Theories, University of California Press, Berkeley, 1989, pp 478–526. They go on (p 503): ‘We do not deny that some lawyers and legal professions enjoy moral authority, even though it is difficult to exercise in modern pluralistic, non-deferential societies.’ However, Abel and Lewis see this moral role as understated in order to protect themselves from criticism. Hence the self-asserted positivist role which typically denies that lawyers are in fact operating in a normative setting, ‘ . . . although they may have difficulty distinguishing positions they advocate on behalf of clients and their personal views about what the law is or ought to be’. 77 ibid, p 511. For example, consider (p 512) ‘the solicitor who prefers to take a “reasonable” attitude [to settlement negotiations, saying] . . . “as long as the client is happy and is satisfied, then I think that that is probably the correct measure of damages.” If one assumes that the lawyer’s aim should be to maximise damages, then such a lawyer is incompetent. However, if the situation has been explained to the client, then such an approach may simply reflect the client’s aversion to risk or stress. Some may feel that the lawyer is obligated to take responsibility away from the client and encourage continued litigation, but such a decision may be inconsistent with the lawyer’s own personality and may also constitute unwarranted paternalism toward the client. This brief discussion again suggests that skill and competence can be evaluated only in terms of the purpose of a lawyer’s services.’

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are actively involved in that process, rather than mere neutral, amoral, positivist exponents of its statutes. Nicolson and Webb in the United Kingdom (and Carle78 in the United States) have argued persuasively for the pursuit of ethical context and complexity, rather than a leviathan role morality as the appropriate decision-making framework in legal practice and for the insertion of such contexts into professional codes of ethics: [T]he professional codes should regulate means and ends issues by laying down a number of considerations relevant to particular dilemmas which lawyers would have to take into account before deciding how to respond. These considerations would guide rather than determine their decisions . . . [and] . . . the codes thus formulated would play an important role in educating lawyers as to moral values . . . 79

Nicolson in particular has more recently been concerned to assert that moral activism is both a realistic and moral response to the general uncertainty and systematic unfairness of modern legal systems. However, he confines himself to an exposition of role morality as antithetical to justice, rather than advocating any ethical assessment process.80 Simon also approaches role morality with scepticism, but on functional grounds. He deals with the arena of conflict between the ethic of autonomy (which asserts that clients, not their disengaged lawyers, must make the decisions about their legal issues) and the ethic of paternalism (the view that some clients can never be in a good enough position to make those decisions)81 by advocating a synthesis of both approaches: [I]n the [refined view of autonomy], the lawyer has a duty both to educate herself about the particular client’s concerns and to assist the client in making use of the information the lawyer provides,82 [such that] . . . there is a large category of cases involving legal decisions, where, given the circumstances in which decisions must be made, we have no criteria of autonomy independent of best interests.83 78 Susan Carle (ed) Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader, New York University Press, New York, 2005, Introduction, p 1. 79 Donald Nicolson and Julian Webb, ‘Editorial: ‘Public Rules and Private Values: Fractured Profession(alism)s and Institutional Ethics’, (2005) 12 International Journal of the Legal Profession, p 224 and, at p 283: ‘If ethical codes are to incorporate the sort of decision-making schemas we have outlined . . . in order to assist lawyers in developing a true understanding and appreciation of the importance of contextual decision-making . . . it is essential that commentaries are provided explaining the rationale behind each contextual factor and possibly also giving examples of actual or even hypothetical cases.’ 80 Donald Nicolson, ‘What and How . . . ’, presented to the University of Canterbury Ethics Colloquium, Christchurch, New Zealand, February, 2005 (unpublished). 81 William H Simon, ‘Lawyer Advice and Client Autonomy: Mrs Jones’s Case’ in DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000. Citing David Luban, ‘Paternalism and the Legal Profession’ (1981) Wisconsin Law Review 454, 477, Simon states (p 173): ‘David Luban has argued that paternalist coercion is justified when . . . the client’s explanation of his decision fails to meet a minimal test of objective reasonableness’; and also Duncan Kennedy, ‘Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power’, (1982) 41 Maryland Law Review 563, as follows: ‘The paternalist works for the choice that seems most consistent with her understanding of who the client is.’ 82 ibid, p 175. 83 ibid.


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Menkel-Meadow is another influential North American advocate for recognition of the complexity of contemporary demands on lawyers’ decision-making. She is also firmly in the normative camp, stating that: ‘the adversarial model presumes that fact finders must “choose” one solution or result even if the real truth lies someplace in between or at a different point altogether.’84 Outside criminal advocacy, much broader frameworks than the two-party adversarial model would now appear necessary for dispute resolution in contemporary society. This in turn means that any lawyers who are slaves to their client’s rights and interests (untroubled by ethical complexity or notions of collaborative, restorative or therapeutic85 solutions) will increasingly be less valuable to the resolution of civil disputes, since both traditional decision-makers and clients will be as interested in the insights and creativity of those advocates or negotiators who can identify with broader interests in the search for stable (fair) settlement. The search for overall fairness and ‘win-win’ solutions arguably requires the profession to advance those lawyers with a willingness to consider more than just their clients’ short-term demands. Lawyers who are exposed in law school to therapeutic jurisprudence and who come to value collaborative solutions rather more than the Socratic process of argument will not ‘wipe out’ adversarial justice, because that system will remain critically important as the ultimate non-violent method of dispute resolution for the myriad individuals and corporations who simply will not talk constructively to each other. But there must be increasing numbers of disputants for whom the best lawyers are those who do not need to argue aggressively, who will delve into moral complexity, who are emotionally aware and whose values prioritise fair and less-expensive resolutions. Parker expresses the reality of ethical complexity and the need on occasion to move beyond client demands in these terms. As he concludes: ‘Concerning civil litigation only . . . many people now think that there is more to be said for truth-telling and less for game-playing . . . This is all the more so when the real issue is about allocating losses between insurers.’86 He reminds us that the fiduciary obligations of the substantive law anchor legal ethics87 and therefore,

84 Carrie Menkel-Meadow, ‘The Limits of Adversarial Ethics’ in Rhode, op cit, n 81. Menkel-Meadow observes (p 127) ‘ . . . but if we have learned anything from twentieth century and post-modern theories of knowledge it is clear that many questions are not reducible to single, simple truths. This does not mean that answers are entirely indeterminate, but rather that there may be a “spectrum” of truths and a continuum of solutions, some of which may be better than others.’; and also (p 132) ‘For many modern legal problems, adversarial, dualistic legal structures cannot take account of the complexity of multiparty, multi-issue controversies with broad social consequences. Consider matters such as labor management disputes, environmental siting, billion-dollar mass torts, international trade agreements, corporate re-organisation, or municipal budgeting processes. Such matters involve a matrix of possible parties, interests, issues and responses. A crucial question for legal policy and legal ethics is how to adapt current institutions to meet these complex challenges of contemporary dispute resolution.’ 85 See, for example, Michael King, ‘Restorative Justice, Therapeutic Justice and the Rise of Emotionally Intelligent Justice’ (2008) 32 MULR 1096; Denis P Stolle, David B Wexler & Bruce J Winick, Practicing Therapeutic Jurisprudence: Law as a Helping Profession, Carolina Academic Press, Durham, NC, 2000. 86 Stephen Parker, ‘Introduction & Ch 4: Change, Responsibility and the Legal Profession’ in Parker and Sampford, Legal Ethics and Legal Practice: Contemporary Issues, Clarendon Press, Oxford, 1995, pp 73–86. 87 Parker, op cit, p 3.

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‘To some extent . . . lawyers individually have moral autonomy . . . [and accordingly] . . . it is not unreasonable to regard them as also having a degree of moral accountability’.88 Writing in 1995, Parker anticipated the calumny of White Industries v Flower & Hart,89 McCabe v British American Tobacco,90 Enron91 and many other notorious cases in an uncanny manner. Citing the lack of code restrictions in the area of civil litigation (particularly in document discovery) as having the potential for much abuse, he commented on ‘the interesting literature [which is] emerging on the theme that lawyers should retain some ethical discretion so that they might, for example, decline to perform a lawful act on behalf of a client by reason of its immoral consequences’.92 Parker’s most useful insight, however, is likely to be his characterisation of the non-criminal environment as an ethical outland in which lawyers are, whether they know it or not, the only umpires: [M]any of the justifications for the standard conception of the lawyer’s role are dependent on factual premises about dispute resolution which are now considerably in doubt. In brief, such a small proportion of matters reach a contested trial that arguably legal ethics should be organised on the assumption that a settlement will occur without any scrutiny by a neutral umpire, rather than that the full panoply of the adversary system will be invoked . . . The blurring of the boundaries between law, morality and prudence, and the view of the world as comprising more than self-absorbed right-holders, suggest that fewer institutional excuses will be accepted.93

The list of those who view the traditional conception (of role morality) as deficient as compared with what may be called ‘complex judgment’ continues to proliferate. Lewis refers to trust as a factor in the latter conception, but also to something more than trust; that is, ‘the sense of making decisions for the right reasons.’94 In a similar vein, Hutchinson is critical of ‘Reliance on codes [which] atrophies the moral intelligence and leaves lawyers adrift without a moral compass when those professional rules run out or give conflicting advice’.95 88 ibid. See also RG Pearce, ‘Foreword – the Religious Lawyering Movement – an Emerging Force in Legal Ethics and Professionalism’ (1998) 66 Fordham Law Review 1075, 1079: asking ‘whether religiously based disobedience of professional norms should be exempt from sanction’. 89 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. 90 McCabe v British American Tobacco [2002] VSC 73. 91 See generally, Paul H Dembinski (ed) Enron and World Finance: A Case Study in Ethics, Palgrave Macmillan, Houndmills, New York, 2006. 92 Parker, op cit, pp 81–2. Other authors holding similar views are listed by Parker: David Luban, Lawyers and Justice: An Ethical Study, Princeton University Press, Princeton, 1988; Deborah Rhode, ‘Ethical Perspectives on Legal Practice’ (1985) 37 Stanford Law Review 589; William Simon, ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1083; Richard Wasserstrom ‘Lawyers as Professionals: Some Moral Issues’ (1975) Human Rights 1. See also M I Swygert, ‘On Teaching Morality to Law Students: A Response’ (1992) 21 Stetson Law Journal 559, where the choice between role morality and ‘complex judgment’ is affirmed as exposing ‘ . . . the danger that focussing simply on the professions’ ethical rules can lead to moral blindness.’ 93 Parker, op cit, p 85. Here, ‘institutional excuse’ is used in the Luban sense as a part of the discussion on role morality. 94 Philip Lewis, ‘Afterward – [Trust and Professionalism]’ (1999) 2 Legal Ethics 214. 95 Allan C Hutchinson, ‘Legal Ethics for a Fragmented Society’ (1998) 5 International Journal of the Legal Profession 175. Hutchison is blunt (pp 187–8): ‘Strict adherence to a strong role-differentiation asks lawyers to engage in a form of moral schizophrenia. This has considerable costs for lawyers – their sense of moral judgment atrophies; they lose track of what is and is not important; and their clients are reduced to nothing more than fee-generating opportunities.’ His sense of the complexity comes out in this way (p 186): ‘ . . . the


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As is often the case, Rhode has a great deal to offer in this area. She seeks to deal with the following common objections to ‘complex judgment’ as the basis for ethical decision-making, by observing that: Terms like justice and good faith can mean anything – to which she responds ● that these generalisations are common in the courts and statutes where acting ‘reasonably’ and ‘in good faith’ are acceptable.96 It is not the lawyer’s role to interpret conflicting requirements for justice ● and morality, but ‘to defend an individual . . . ’ – yet this begs the question as to what the role actually is and who is it that defines it, if not the lawyers themselves?97 ‘In many legal contests, if lawyers decline to pass judgment, no one else will ● be available to do so. When mechanisms of formal institutional accountability [that is, outside the scrutiny of a court] are absent, the need for informal, internalised standards of moral accountability becomes particularly compelling.’98 As foreshadowed earlier, Christine Parker takes this whole process to its logical conclusion in her refinement of Atkinson’s categories in two ways. By developing his three classifications (describing them as, sequentially, the ‘zealous advocate’ who lives for a utilitarian role morality; the ‘responsible lawyer’ – who pines for Kantian nobility of legal practice by devotion to ‘the rules’; and the ‘moral activist’ – who can see ethics in strongly Kantian, utilitarian or virtuous terms, providing justice is achieved and clients prevailed upon to take a ‘moral’ course of action),99 and adding Gilligan’s fourth ‘ethicist (or relationship) of care’ approach,100 she has been able to seriously suggest that the value of law and other institutions to society derives at least in part, from lawyers’ relationships. Secondly, by incorporating more of the virtuous complexity demanded by the values of relationship, care and emotional intelligence,101 she requires of the challenge is neither to abandon a sense of personal morality and defer all ethical responsibility to the unique role and status of the legal professional nor to adhere entirely to the dictates of one’s personal conscience and ignore the special responsibilities that attach to being a professional. It is a matter of creating a balance between the two such that it is possible to bring together the professional and the personal in a legal ethics that satisfies the pushes of personal morality and the pulls of professional conduct.’ This sentiment is also expressed in the more straightforward language of Christopher Whelan, as follows: ‘Professional responsibility means . . . making judgments guided not exclusively by money, convenience, or what the client wants, but also by a professional ethic. Arguably, true professionalism is: “independence [as] a matter of ethos, professional discipline and frame of mind, rather than a matter of how a lawyer is engaged or paid”.’ See Christopher Whelan, ‘Ethical Conflicts in Legal Practice: Creating Professional Responsibility’ (2001) 52 South Carolina Law Review 697, 719. 96 DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000, p 68. 97 ibid. 98 ibid, p 69. 99 Parker, op cit. See also Baron, et al, op cit, n 27, which underpins Parker’s four types of ethical lawyering by a consideration of the three well-known ethical methods – Kantian, utilitarian and virtue ethics. 100 This fourth category was first developed by Carol Gilligan. See Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development, Harvard University Press, Boston, 1982. Gilligan was concerned to identify with the different priorities of women in her psychological conception of the carer, but her insight has long since expanded into a non-gender specific descriptor. 101 Parker, op cit, p 68. Carrie Menkel-Meadow discusses ‘Proposals [which] have emerged for different kinds of lawyers – “collaborative” lawyers who will work under assumptions of good faith, fair dealing and full disclosure of relevant facts – to solve the problem.’ See Carrie Menkel-Meadow, ‘The Limits of Adversarial Ethics’ in Rhode, op cit, p 135, citing Robert W Rack, ‘Settle or Withdraw: Collaborative Lawyering Provides Incentive to Avoid Costly Litigation’ (1998) 4 Dispute Resolution Magazine 8. The collaborative lawyer is a

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Necessity to care for the rights of the willmaker and potentially defrauded beneficiaries

Responsible Lawyering Confidentiality of your client’s intentions is paramount – keep silent!

Zealous Advocacy

Ethics of Care Your client may do nothing at all – better to write to her counselling that she desist

Duty to avoid a miscarriage of justice – report

Point of intersection of ethical principles

Moral Activism

Figure 3.3: Example of competing ethical priorities

ethically aware lawyer a personal sensitivity which transcends other categorisations and which is at least as important as the rules of conduct. Figure 3.3 above tries to represent where the truth might lie in an ethically demanding fact situation. Four axes, each one representing a different legal ethical type, are used to plot an ethical decision-making process designed to give (at least) two-dimensional recognition to the reality of complexity in the following case: You are consulted by a client who claims to have been left a large estate under an uncle’s will. On examining the will you notice that a number of other close relatives receive nothing and that only one witness has witnessed her uncle’s signature (where two are required). You tell your client that for this reason the will is invalid and that, if her uncle dies without a valid will, she will inherit only a small portion of the estate. Your client is very annoyed and suggests you put your signature on it, as a second witness. Naturally, you refuse. As your client leaves the office with a determined look on her face, you ask her what she will do. She glares at you and says she might obtain another signature and then consult another solicitor.

The competing ethical priorities facing the lawyer in this situation can be plotted visually by that practitioner in such a way as to show that, before any consideration of the applicable rules of conduct, there are a number of relevant ethical principles and they are unlikely to have an equal claim on the lawyer’s subsequent decisions. variation on Atkinson’s ‘Type 2’ and Gilligan’s ‘ethicist of care’, though the correlation is not exact in either case.


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This axis approach to ethics-enhancement can be used with any demanding ethical situation to make the choices clearer in deciding what action to take. Where and how the lawyer chooses to record their own priorities on such a grid is entirely up to them in each case, because the process of recording is the key reflective tool. It is suggested that, if a particular quadrant is centrally bisected by a particular ethical concern as is the case with the Ethics of Care/Responsible Lawyering quadrant in Figure 3.3 then the concerns of that quadrant are likely to represent the strongest ethical preference of that lawyer in that situation. It might then be supposed that, unlike the other quadrants which are not centrally bisected and reflect only one area of ethical concern with any strength, this quadrant has the greatest claim to the lawyer’s ethical loyalty, in this situation. Would relocation of James Hardie Industries from Australia to the Netherlands, in an attempt to deny compensation to future victims of asbestosis,102 have proceeded at all if Hardie’s lawyers had reflected on such a grid and said to each other, if not to the company Board: ‘No, people are being killed by our products and I will not be a party to their future suffering’? But in answer to the question: Why should a dubious client pay for such divided loyalties? there is still the probability that complexity-aware lawyers are of more use to clients than those who pretend not to see deceit or care less about justice. If lawyers are faced with a moral obligation that the client dislikes, their ‘resignation’ and replacement by someone less scrupulous is not to be assumed. Clients do surprise by respecting their lawyers’ dissent and even understand that their reputation for integrity will be important in representing their interests.103 The process of ‘adding value’ – by occasional dissent from a client’s proposed means to an end – will increase respect between lawyer and client and lead in the long term to an enhanced reputation.

3.6 Ethical complexity and moral courage: The requirement to judge So how do we teach lawyers to recognise moral complexity and then have the courage to model it before a reluctant or hostile client? The axes and grid in Figure 3.3 is one approach, a forerunner to the teaching of judgment, which requires placing law students and lawyers in a position to confront their true self, or more prosaically, experience conflict at ‘both intellectual and emotional planes.’104 This observation may seem facile, but only when a law student or lawyer is clinically confronted with moral complexity (in a simulation, or preferably an experiential and clinical legal education context) and then debriefed, are they 102 Richard Ackland, ‘Irresistible Charms’, Buisness Review Weekly, Sydney, 30 September–6 October 2004, 48–50. 103 ibid. 104 See, for example, Douglas Frenkel, ‘On Trying to Teach Judgment’ (2001) 12 Legal Education Review 19.

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likely to understand the stakes involved and hence experience the difficulty of moral choice.105 They may not necessarily choose the best course, but conscious bona fide choices are personally strengthening and morally clarifying. That clarity may be enough for some lawyers to also act courageously. Simon sums up the need for judgment and courage concisely in his characterisation of most conceptions of legal ethics as simplistic tendencies, either to a blind faith in disciplinary codes or a desire to try to identify some ‘all encompassing’ personal morality for individual lawyers. In company with Nicolson and Webb,106 he sees ‘the application of general norms to specific circumstances through complex, creative judgment’107 as the ethical component of the ideal lawyer. These general norms do depend on an understanding of ethical methods and on fundamental values awareness, but judgment is still needed in their application. Luban would concur and illustrates his agreement powerfully by reference to the notorious set of experiments conducted some decades ago at Yale University. In the early 1960s, Yale psychologist Stanley Milgram set out to discover how an individual’s sense of judgment might be affected or even corrupted in certain adverse circumstances.108 Volunteers were recruited and told that there was to be an experiment into the effect of punishment upon memory and learning. In teams of two, one volunteer was asked to memorise word pairs and the other was requested to administer electric shocks, in steadily increasing voltages, each time the first volunteer made a mistake in reciting a word pair. In fact, the subject ‘volunteer’ (the person attempting to use their memory) was secretly a part of Milgram’s team. The real volunteer was told (spuriously) that they must administer the shocks because one aim of the process was to test how different kinds of people administer punishment. The ‘shock generator’ was a formidable looking device with big switches and prominent labels that began with ‘slight shock’ (15–60 volts) and went all the way up to ‘XXX’, at 450 volts. The experiment was rigged, of course, but over 1000 volunteers participated over the course of the study and administered apparently increasingly painful shocks (following frequent ‘mistakes’ of memory by the supposed other ‘volunteer’), notwithstanding increasingly distressing grunts, screams and the final ‘collapse’ of the other person. In each case, the subject was told by the experimenter that there was no permanent damage occurring and ‘the experiment requires that you continue’.109

105 Many clinical legal education programs work on the principle of students’ personal exposure to client poverty as the only truly effective method of confronting future lawyers with the realities of the justice system and hence, what may be necessary for them to personally accept in a decision to practise law. See for example, Jane Aiken, ‘Striving to Teach Justice Fairness and Morality’ (1997) 4 Clin L Rev, 1. 106 Donald Nicolson and Julian Webb, Professional Legal Ethics: Critical Interrogations, OUP, Oxford, 1999, pp 245–6. 107 William H Simon, ‘The Trouble with Legal Ethics’ (1991) 41 Journal of Legal Education 65. 108 Stanley Milgram, Obedience to Authority: An Experimental View, Harper-Collins Torchbooks, New York, 1974. Ironically, these experiments would now be regarded as completely unethical. 109 David Luban, ‘The Ethics of Wrongful Obedience’ in Rhode, Ethics in Practice, Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000, pp 94, 96.


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Astoundingly, compliance with the experimenter’s request was recorded on average for 63% of volunteers, regardless of gender, with confirming follow-up studies occurring in many countries, including Australia. This finding, although arising from a starkly different context, might be important in understanding why employee lawyers find it difficult to assert ethical independence. Luban thinks that, despite Milgram’s volunteers’ established sense of right and wrong, a ‘corruption of judgment’ was to blame.110 The volunteers, having administered progressively more painful shocks on an incremental basis, rarely asked the question: Is it wrong to administer this particular shock? They experienced a lack of situational judgment. Thus, if 15 volts did not violate the no-harm principle (since ‘that’s only a slight tingle’), then the volunteers were on a slippery path, because, ‘how could 30 volts cause harm if 15 did not?’ and so on. In the conventional law firm, a general injunction to behave ethically may be diluted when incremental ‘devices’ such as Milgram’s voltage increments effectively dull even well-established ethical consciousness. Thus, if it is acceptable to round-up some clients’ bills by a small amount from time to time, it can become routine to round-up all bills by a set percentage, as a matter of course. That process is also similar to Alfieri’s observation that the minutiae of quality control mechanisms can suffocate the sense that moral choices must still be made every day.111 And a lack of situational judgment is not helped a great deal by a general instruction or rule to ‘act fairly’, because ‘[a]s Kant first pointed out, you can’t teach good judgment through general rules, because we already need judgment to know how rules apply’,112 and ‘[g]ood judgment lies in drawing distinctions between near-indiscernibles, whereas authoritative instructions reinforce the theme that indiscernibles are identical.’113 Now consider the predicament of the debt-laden trainee or hungry law firm associate: when an authoritative instruction is received to treat a document

110 ibid. Of even more significance, in other follow-up studies where different volunteers were asked to guess what percentage of volunteers would comply with the direction to administer pain (p 97), ‘people typically guessed that only one out of a thousand would comply [and] no one believed that they themselves would’; and see Arthur G Miller, The Obedience Experiments: A Case Study of Controversy in Social Science, Praeger, New York, 1986, pp 13 and 21. In ‘cognitive dissonance’ terms, Luban argues that we vary our attitudes to account for actions, rather than admit to fallibility in those actions, because we want to believe ourselves to be ‘good’ (p 97). ‘[I]n the right circumstances, we are quite prone to destructive obedience, but . . . we don’t believe this about ourselves, or about our neighbours.’ According to Luban, Milgram thought the most likely explanation was that we consider ourselves as mere agents of others and therefore not accountable, but this is not convincing to Luban. Neither is the view that most respondents admired authoritarian personalities or were sadistic, since many volunteers were in anguish as they followed the direction to keep administering pain. (p 99). Also it is tempting to believe that many deferred to Milgram because of the tendency to believe that the other knew what they were doing – the deferential personality – but participants’ compliance continued even in experimental variations where one of the identified researchers was placed in the role of the learner and demanded, while ‘screaming’, that the experiment stop. The most radical suggestion is that (p 101): ‘ . . . nothing in the subject’s personalities accounts for their compliance.’ This so-called situationist view is that even though people respond similarly to different situations, they still perceive things differently from one another, so that idiosyncrasy operates at the level of perception, not behaviour. Yet there is no evidence for the diversity between perception and behaviour, so this also is unsatisfying to Luban. 111 Anthony Alfieri, ‘The Fall of Legal Ethics and the Rise of Risk Management’ (2006) 94 Geo LJ 1909. 112 ibid, p 102. 113 ibid, p 104. It may not be too flippant to suggest that this is the reason we (still) have judges rather than computers, as decision makers.

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as either privileged or to be destroyed immediately and the working context requires a quick decision, an already struggling sense of judgment can be kept in a relatively subdued state and neatly outmanoeuvred. Thus, if Luban is correct, the ethical judgment of employee lawyers requires several conditions: a nose for ‘near indiscernibles’ (particularly when adversely conditioned by the ‘thin edge of the wedge’ approach described above); a supportive policy structure inside the firm; instinctive reservations about an employer’s authority and (pragmatically the most difficult thing to achieve in a pressured legal workplace) time to consider decisions.114 Finally and most importantly, lawyers need courage. Professionalism may be so difficult to achieve because, in part, the courage to make an ethical judgment, once all the cards are face up, is difficult to encourage. Former Judge Einfeld was confronted with his moral flaw but never sufficiently debriefed, or if debriefed, was still unable or unwilling to show courage and admit his selective dishonesty. A lack of any of complexity awareness, time to consider or courage, and especially the absence of all of them, can lead to an inability to prefer right to wrong in specific circumstances. As Luban says: Soon, if the lawyer isn’t very careful, every damaging request seems too broad or too narrow; every smoking-gun document is . . . privileged; no adversary ever has a right to our documents. At that point the fatal question is not far away: Is lying really so bad when it is the only way to protect ‘our’ documents from an adversary who has no right to them?115

The point of ethics awareness assessment is that, once a lawyer is aware of the psychological process involved in avoiding judgment, there is no excuse and no going back. Only a few could consciously live with the psychological conflicts such awareness would create if action did not follow on awareness. The aware law student or lawyer, if exposed to this pathology, has every reason to examine their own thought processes to more closely identify the slippery slope when it presents itself the next time. A possible ethical ‘vaccine’ may be to throw some light on this process of ethical desensitisation. When the techniques of moral manipulation are explained (even if practised tacitly), they may be ‘outed’ as a device and might lose the power to control; or at least, leave sufficient doubt to undermine any immoral strategy in others. 114 One focus group participant in the Australian Lawyers’ Values Study made a point of mentioning that there is no time sheet code for ethical reflection. Luban has elsewhere also prescribed four similar strategies for corporate lawyers who seek to be able to withstand the pressure to incrementally ‘give in’ to inducements to lose their way in moral terms: 1. Since ‘all the experimental studies suggest that cognitive dissonance disconnects the wires of conscience slowly and one step at a time’, it is important to identify a personal warning sign that you will not ignore, for example, ‘never backdate a document’ or arguably even leave a date blank (because that might allow others to backdate)! 2. Notice when you blame someone else for a failure – that’s a sign that your conscience is on the road to perdition. 3. Entertain a certain amount of self-doubt and self-criticism, particularly if all those around you show none of it, because such reflection might keep you safe. 4. Advise your client what is consistent with what is right, even if that is not what they want to hear – that will add value in the long term. See David Luban, ‘Making Sense of Moral Meltdown’, in Susan Carle (ed) Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader, New York University Press, New York, 2005, p 355, at p 369. 115 ibid, p 106.


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It is suggested that the best lawyers can and do vary their ethical approach, in the pursuit of ‘complex judgment’ and, authenticating Nicolson and Webb’s insight,116 combine ethical approaches as their sense of judgment requires it in varying situations. A capacity for or understanding of moral complexity is a key ingredient in legal ethics and, ideally, ought to be assessed in lawyers.

3.7 From virtue to courage Ethical concepts or ‘methods’, and particularly virtue ethics, have affected the recent development of legal ethics in a profound manner. The knowledge that individual character, overall context and immediate situation all intersect to provide cues on how lawyers ought to behave is a critical first step to ‘good’ decision-making. And awareness of this overall complexity within legal ethics, which incidentally considers what any relevant rules of conduct might state but is not governed by them, is the next fundamental step to ‘growing’ the courage to make moral decisions in nerve-wracking legal workplaces. The domination of the market-regulated State or even of the more recent State-dominated market need not relegate debates about lawyers’ values and ethics to the dustbin. When marginalisation of appropriate values does occur, the pendulum swings back because of scandal and a values debate once again dominates the legal services market, at least until further correction and measurement is re-inserted by the State or, it is to be hoped, by responsive law societies. Measurement/assessment in this context should become part of the discourse of legal ethics. If legal ethics – however fluid – is to retain or recover its socially stabilising role for lawyers and their clients, then it must move towards a measurable entity, utilising whatever tools exist to achieve the best mix of principle and practicality. Nevertheless the dominant, role morality approach to legal ethics, even in nonlitigious legal work, cannot be relegated to second place without considering the reality that law is a business as well as a profession. Thus, if legal practice is increasingly a service industry rather than a professional function and lawyers’ major priority becomes the business of law, role morality becomes a natural ally. Mechanisms are then needed to offset internal law firm business pressure on legal ethics. 116 Nicolson and Webb, op cit, n 106, pp 245–6, advocate a ‘Decision-Making Schema for Morally Activist Lawyers’ which involves first ‘ . . . examining the justifications for neutral partisanship in the a particular context . . . second . . . evaluating a number of ‘generic’ ethical considerations [such as the problem of lawyer control, and third, consideration of] . . . ‘specific’ ethical considerations [such as the harm likely to be caused by zealous representation]’. Their schema is intended to provide a systematic framework for the often intuitive assessments which lawyers undertake in a few seconds (sometimes but not always with the assistance of codes of ethics), when deciding whether or not to act for a client and if so, on what basis and with what conditions.

4 Mechanisms to offset business pressure on legal ethics

4.1 Virtuous lawyers as acute businessmen and women Discussion of lawyers’ ethical types and the confidence needed by a virtuous lawyer to consistently make ethically difficult decisions is one thing, but shortterm business priorities of legal practice can undermine such determination. A common view among some lawyers, regulators and the judiciary is that law has become so business oriented that ethical lawyers of any type (other than zealous advocates) are as good as lost in space. Can any ethical system offer an alternative to the relentless culture of six-minute billing intervals and the allure of a faster route to partnership? While it is true that the legal professional must operate confidently and with considerable autonomy, constantly encountering inherently contentious ethical situations, those encounters need not involve irreconcilable differences. The virtuous lawyer is not a figment of the imagination. They are zealous when necessary, responsible to the courts and caring in the widest sense, seeking reform where that is needed, all the while gaining and building the trust of more clients than they lose as a result of occasionally having to say ‘no’. Many lawyers with this profile are conventionally successful in the law as well as engaged in their (legal) businesses because their focus is contextual, long term and courageous. The misconception that sets ‘Law as a Business’ and legal ethics at complete odds with one another is pervasive, but it can be addressed if the so-called short-term business priorities of lawyers are examined and challenged. It is possible that assessment of virtuous qualities, as discussed in Chapter 3, will help to align long-term financial success in legal practice with lawyers’ virtue. Achieving this alignment begins by recognising that the stereotype of business’ 92

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only objective as profit maximisation and the idealised professional objective of pure service with integrity are both generalisations which obscure more complex interactions. But they do conflict when law firms forget that their long-term profits and ethical behaviour are indispensable partners. Yet such forgetfulness is also a simplification: firms neither ‘remember’ nor ‘forget’, even when they have comprehensive risk management and ethical infrastructures and are subject to legal regulators’ ethics audits. The individuals controlling law firms change places all the time and it is their values, ethics, experiences and memories that decide whether their firm pursues short- or long-term profit objectives. Law societies and bar associations know this full well. They ought to feel prodded by judges’ complaints about firms’ poor behaviour, but too many still fail to assert and reassert the reality in their practice management programs that law firm profit can be secured over the long term only with ethical behaviour. Such ‘de-linking’, perhaps more powerfully put as a professional reluctance to promote ‘law as a long-term business,’ is painfully real.

4.2 Information barriers as paradigms of ethics versus business Perhaps the most potent example of the disconnection between some lawyers’ short- and long-term business priorities is provided by the too well-known phenomenon of the information barrier or ‘Chinese wall’. These institutional (and sometimes supported)1 fictions or devices are managerial structures designed to physically and electronically separate one or more lawyers from another individual or group of lawyers, in the same firm. The decidedly short-term objective of the firm is that each group may then represent different clients who are engaged in mutual ‘transactional work’, or permit one lawyer/group to represent a current client in a litigious situation, against a former client who was, in the past, represented by the other group of lawyers. In the latter case, the separation is necessary because the former client is owed a duty of confidentiality which survives the termination of the lawyer–client relationship and the lawyer(s) who represented that former client must not be put in a position where that client’s confidences would or could ‘leak’, in discussion with the lawyers representing the current client. Numerous cases and articles2 have attempted to deal with the ethical minefield created by the fact that the only real reason for an information barrier is to allow a relatively few medium and a considerable number of large law firms to 1 See, for example, Fruehauf Finance Corporation Pty Ltd v Feez Ruthning (a firm) [1991] 1 Qd R 558; Bureau Interprofessionel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588. 2 See, for example, Chief Justice James Spigelman, ‘Are Lawyers Lemons? Competition Principles and Professional Regulation’. 2002 Lawyers’ Lecture, delivered to St James Ethics Centre, Sydney, 29 October 2002, references to these cases and articles about Chinese walls. On the difficulties of Chinese walls see Janine Griffiths-Baker, Serving Two Masters, Hart Publishing, Oxford (2002); Mallesons v KPMG Peat Marwick (1990) 4 WAR 357, esp at 371; C Holander and S Salzedo (eds) Conflicts of Interest and Chinese Walls, Sweet & Maxwell, London, 2000, esp [7–10]; H McVea ‘Heard it Through the Grapevine: Chinese Walls and Former Client Confidentiality in Law Firms’ (2000) 58 Cambridge LJ 370, 377, 387, 384.

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immediately generate fees from two clients, where otherwise they would have to be satisfied with those from just one. Never mind that at least one of the affected clients’ interests must to some extent be compromised, even if they consent or if they say they prefer it because they want to retain as their lawyer the partner who has always looked after them. One of these clients will feel sidelined sooner or later and that perception will hurt the medium and sometimes longer-term interests of the firm. In a recent Australian case, Allens and Big Pharma,3 the fallout did damage the firm’s reputation considerably and other cases have done likewise in many jurisdictions.4 Lazy short-term thinking by such clients’ corporate counsel is only partly to blame: despite widespread judicial scepticism about the ethical implications of information barriers,5 law societies and bar associations’ councils seem thus far determined to accommodate rather than condemn the concept.6 NSW Chief Justice Spigelman has voiced scepticism about information barriers in the context of the conflicts of interest surrounding multidisciplinary partnerships (MDPs).7 Spigelman complains: I do not know how a multidisciplinary practice will cope with the major differences in occupational culture about conflicts of interest. Accountants, who see no conflict in combining audit and consulting services . . . and merchant bankers, who have no fiduciary constraints, would regard lawyers’ sensitivities as un-commercial. There is no doubt that fiduciary obligations often interfere with maximising income. The widespread affection for the ‘Chinese wall’ indicates the direction in which competitive pressures and commercial convenience will drive behaviour. The terminology of a ‘Chinese wall’ carries a connotation of ancient wisdom and inscrutable impenetrability. In Australia we should call it the ‘dingo fence’.8

It is not clear whether Chief Justice Spigelman’s reference was to dingoes as lawyers, or to such fences as permeable,9 but it is certain that he regards 3 Christine Parker and Adrian Evans, Inside Lawyers’ Ethics, CUP, Melbourne, 2007, p 172. 4 See, for example, Marks and Spencer PLC v Freshfields, Bruckhaus Deringer [2004] EWCA Civ 741. The very large UK retailer Marks and Spencer (M&S) were the subject of a takeover bid. Their former lawyers, Freshfields, sought to continue representing a bidder for the retailer by proposing to erect an ad hoc Chinese wall in order to protect a great deal of M&S’s confidential information known to Freshfields. M&S had understandably objected. The Court comprehensively demolished Freshfields’ attempt to continue the bidder’s retainer owing to the volume of confidential M&S information already in wide circulation within the firm, much of which would have been of obvious benefit to a bidder seeking to take over M&S, and also because of the lamentably inadequate proposal by Freshfields to quarantine that information via an ad hoc wall. 5 See, for example, the House of Lords in Prince Jefri Bolkiah v KPMG [1999] 2 WLR 215, the Victorian Supreme Court in World Medical Manufacturing v Phillips Ormonde & Fitzpatrick (a firm) [2000] VSC 196, and the West Australian Supreme Court in Newman as Trustee for the Estates of Littlejohn v Phillips Fox (a firm) (1999) 21 WAR 309. 6 For example, the Victorian Law Institute has recently released a set of guidelines designed to allow firms to set up ‘effective’ information barriers. See Information Barrier Guidelines <www.liv.asn.au/regulation/ ethics/pdf/guide infobarrier.pdf> at 8 December 2006. 7 The National Legal Profession Model Laws Project, Standing Committee of Attorneys-General, Canberra, 2004, Model Provisions, Cll. 1336–1353, agreed to in April 2004, attempted to create a template for uniform national legislation in relation to MDPs. See <www.ag.gov.au/www.agd.agd.nsf/Page/Publications> at 5 December 2006. The template was never fully implemented, due in part to a South Australian dispute about client compensation mechanisms following a major defalcation in that State. 8 Spigelman, n 2, p 7. See also Julian Webb, ‘Legal Disciplinary Practices: An Ethical Problem in the Making?’ (2005) 8 Legal Ethics 185. 9 The Australian outback dingo fence bisects much of South Australia, traverses the South Australia/NSW and NSW/Queensland borders and on through central Queensland for thousands of kilometres. The fence was a forlorn attempt to prevent dingoes (native dogs), from invading sheep pasture in the early 20th


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information barriers and MDPs as inhabiting the same twilight of ethical legitimacy, in the interests of short-term profit and loss statements rather than longerterm professional success: Chief Justice Gleeson posed the rhetorical question: ‘How does a person in the service of a multidisciplinary business operation, temper the pursuit of economic success?’ His Honour said: ‘The professional associations, if they are to preserve the characteristic of professionalism, will need to ensure that the standards of behaviour they seek to impose and enforce will include such matters as not encouraging fruitless or merely tactical litigation, however profitable it may be to the corporate employer, accepting an obligation to take a reasonable share of pro bono work, and insisting upon full observance of duties to the court as well as to clients, in all aspects of the administration of justice. Of course, there are already lawyers whose observance of professional obligations of this kind is, to say the least, imperfect, but that is a reason for emphasising the obligations, not for relaxing them.’10

4.3 The apparent conflict between law as a profession or as a business Information barriers are an acute case of short-term business and professional objectives in competition, but the wider debate takes in all business objectives. The influential American economist Milton Friedman was well-known for his view that ‘the social responsibility of business is the business of making profits’,11 a perspective which may have encouraged many business-focused legal professionals to sideline their distinctly professional roles in favour of a profit motive in their careers. Yet the apparent dichotomy between business and ethics promoted by Friedman is false12 and certainly inadequate to achieve sustained century. Its success, in the end, was limited, with dingo control now managed by poison injected baits, often delivered aerially. See the NSW National Parks and Wildlife Service <www.nationalparks.nsw.gov.au/npws. nsf/Content/The±dingo> at 8 December 2006. 10 Spigelman, n 2, pp 36–8, citing Chief Justice of the High Court of Australia, Murray Gleeson ‘The Changing Paradigm’, Address to the Women Lawyers’ Association of NSW, 26 October 1999 <www.hcourt.gov.au/ speeches/cj/ wo261099.htm> at 19 December 2006. Of course, the decision of the High Court in Daniels reaffirmed privilege as a substantive rule of law and has helped to reserve work to lawyers and enhance the importance of the legal profession vis-` a-vis accountants and merchant bankers. Note however that the Australian Law Reform Commission has received a reference to investigate privilege at every level. See Marcus Priest, ‘Legal Privilege to be Reviewed’, The Australian Financial Review, Sydney, 1 December 2006, 3. This reference came in the wake of the extensive criticism of the use of privilege by lawyers representing AWB Limited, during the Cole Commission Inquiry into the UN Oil-for-Food ‘kickbacks’ scandal. See Australia, Inquiry into Certain Australian Companies in Relation to the UN Oil-For-Food Programme (The Cole Commission), Report, 2006, Vol 1 [7.42] Legal Professional Privilege; Vol 4 [31] Findings: AWB and Associated Persons. 11 Milton Friedman, ‘The Social Responsibility of Business is to Increase its Profits’, The New York Times Magazine, New York, 13 September 1970; Richard Lambert, ‘Social Investment Is Smart Business’, The Australian Financial Review, Sydney, 18 March 2003, 60. In the business context, it is at first tempting to disregard wider ethics for many reasons, not the least of them being the notion that the conventional goal of business is relatively short-term profit maximisation, while ethics often appears to focus on everything else. In contrast to Friedman, see Douglas S Sherwin, ‘The Ethical Roots of the Business System’, November– December 1983, Harvard Business Review, 183, who argues that ethical management (which involves an obligation to ensure that all stakeholders in a business, including employees, share in its prosperity) is a condition of the societal decision to leave a place for business among its institutions. 12 See Sharon Dolovich, ‘Ethical Lawyering and the Possibility of Integrity’, (2002) 70 Fordham Law Review, Chapter 1, n 27.

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business success,13 a balanced life14 and the relief of major injustices. Taking a Kantian perspective: justice, a successful business and ethical process are longterm partners, not opponents. Paine puts it thus: ‘The question is whether an ethical orientation enhances or diminishes the organisation’s ability to sustain itself and create economic value over time.’15 Paine continues ‘consider how we would bring up a child if our only objective were to promote that child’s interests and well-being’,16 and ‘if your only objective were to secure the long term survival and profitability of your company, what would be your stance on ethics? . . . Anyone who has thought through what it takes to achieve sustained profitability would [actively support ethics].’17 Ethics thus understood has everything to do with conventional business selfinterest and this association is recognised by the many successful lawyers who have low complaint profiles and few cost disputes in their histories. Nevertheless, the relative simplicity of the proposition that ethics and successful legal practice can be, and very often are, successfully combined, obviously does not guarantee that business and professional ethics are pursued simultaneously or with ease by lawyers. In the pure business context, one author comments: As former editor of [the Harvard Business Review], I am acutely aware of how difficult it is to persuade business-people to write or speak about corporate ethics . . . To generalize the ethical aspects of a business decision, leaving behind the concrete particulars that make it real, is too often to sermonize, to simplify, or to rationalize away the plain fact that many instances of competing ethical claims have no satisfactory solution.18

In the context of the false dichotomy of law as a profession or as a business, the operative issue is the positivist catagorisation between ‘ethics’ and ‘law’. Culturally and educationally, lawyers are still expected to separate out the two, as night from day. As Thornton has reasoned: Corporatisation and globalisation have numbed ethical sensibilities so that the evaluation of social goods solely in market terms has become normative . . . This fragmentation and indifference is fostered by global lawyering with its focus on a ‘fly-in, fly-out’ method of service delivery . . . Legal positivism endeavours to mask the dilemmas of practice by drawing a line of demarcation between law and morality . . . Legal practice becomes bearable if it can be conceptualised as no more than a series of rules, game plays or set pieces. The technocratic has always been a nifty mechanism for occluding the violence of law, a project in which a doctrinally oriented legal education has been complicit.19 13 See, for example, the coverage of the global financial crisis by the Financial Times at <www.ft.com/ indepth/global-financial-crisis> at 4 January 2010. 14 Rob Ferguson, ‘The Money Culture’, in ‘Business, Ethics, Values and Education’ (2001) 10 BHERT News. Ferguson comments that the post-modern money culture could be characterised by confronting business leaders with the hypocrisy of one set of values for home and another for the office. 15 Lynn Sharp Paine, ‘Moral Thinking in Management’ in DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000, p 59. 16 ibid, p 71, citing RM Hare, Moral Thinking: Its Levels, Method and Point, Clarendon Press, Oxford, 1981. 17 ibid. 18 Kenneth Andrews ‘Ethics in Practice’, Harvard Business Review, September–October 1989, 1. 19 Margaret Thornton, ‘The Demise of Diversity in Legal Education: Globalisation and the New Knowledge Economy’ (2001) 8 International Journal of the Legal Profession 37, 41–2.


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Thus, Gleeson has correctly observed that ‘because an action is legal it does not mean it is ethical.’20 In 2003, Clayton Utz was trying to deal with Victorian Supreme Court criticism that the firm had aided its client British American Tobacco in destroying documents relevant to likely court action by a sufferer from lung cancer. The firm’s CEO was clear, as mentioned earlier, that legal ethics is no more than compliance with the law and that Clayton Utz was behaving ethically,21 but he did not convincingly explain why ethical consciousness was no more than legal compliance within his firm. The omission was instructive. In 2004, the Chair of the US Securities and Exchange Commission, William Donaldson, was concerned to re-emphasise that, while corporate governance had improved following the wave of financial scandals which afflicted the US economy around the turn of the millennium, there was still a failure of ethical leadership at the top of corporations. Donaldson asserted that, in any commercial undertaking, there had to be a clear recognition of ethical obligations which transcended the law: ‘The tone is set at the top. You must have an internal code of ethics that goes beyond the letter of the law to also encompass the spirit of the law.’22 The Wall Street financial meltdown and global recession of 2008–09, occurring against the backdrop of huge executive payouts to those who managed failed companies, make this observation painfully prescient. If business now reaffirms a need for an internal code of ethics, how much more important is the same consciousness within law firms? Lawyers’ continuing ability to divide legality and ethical consciousness can cement notions of business and ethics as separate endeavours, never requiring reconciliation. Many writers think it a foregone conclusion that law is no more than a business and that, by implication, it is just easier to keep quiet rather than acknowledge either the ascendancy of ‘business’ over ethical functions or the inherent complexity of ethical functioning.23 But if a lawyer has ‘good’ personal values and understands that they have choices about which ethical methods and lawyers’ types they will adopt, they will more easily recognise the connections between those choices and the longer-term profitability of their firm. Further, the law society or bar association that promotes and assesses these connections will be adding considerably to the longer-term viability of their sector of the profession. 20 Gerald Gleeson, ‘Ethical Responsibility’ (2001) 10 BHERT News. 21 Margaret Symons, ‘Justice Inc.’, The Sunday Age, Melbourne, 4 August 2002, 1, citing Professor Marie Joyce, then chair of the Australian Psychological Society’s ethics committee, n 28. Mr Fagan was responding to suggestions that Clayton Utz were bound by ethical obligations to preserve BATAS-related documents. In a subsequent Victorian Court of Appeal decision (BATAS v McCabe [2002] VSCA 273), the express criticism of Clayton Utz was reversed. For a period, any formal regulatory investigation of the firm’s alleged behaviour, dealing with the conduct issues raised by the initial and highly critical Supreme Court judgment ([2002] VSC 73), was made redundant by the Court of Appeal decision. 22 David Wighton and Andrew Parker, ‘SEC Boss Hits Back at Critics of Reform’, The Australian, Sydney, 21 September 2004, 25. Donaldson was concerned that critics of the US Sarbanes–Oxley agenda were resorting to cries of ‘over regulation’ in order to safeguard company secrecy as to the level of directors’ and senior managers’ remuneration. 23 Andrews, op cit, n 18, p 6. Andrews states: ‘The impediments to explicit discussion of ethics in business are many . . . That persons with management responsibility must find the principles to resolve conflicting ethical claims in their own minds and hearts is an unwelcome discovery. Most of us keep quiet about it.’

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Fortunately, the sheer weight of business pressure has not stopped calls for lawyers’ ‘professional’ rather than commercial behaviour24 when the two are in apparent conflict25 and the consistency of these calls over the years testifies, if nothing else, to the continuing aspiration to remain ethical despite the shorter-term commercial pressures of legal practice. Dolovich goes a bit further and refers (almost approvingly) to Luban’s endorsement of the ‘“betrayal by the lawyer of a client’s projects, if the lawyer persists in the conviction that they are immoral or unjust”’26 and calls for institutional support in the cultivation of integrity, which in turn requires ‘a broad-based collective commitment to meaningful institutional change’.27 Might this ‘institutional support’ include methods of entrenching better behaviour within the profession?

4.4 Connecting personal values to ethical consciousness How might the profession engage in morally ‘re-arming’ its members? Recall Longstaff’s comment that regulation alone is simply too expensive in cost-benefit terms.28 Or, as expressed by the Royal Commissioner who inquired into the collapse of Australian insurer HIH: ‘The black letter of a corporate governance model will not be effective unless there is a culture of compliance’29 and must be accompanied by strategies designed to encourage trust, respect, integrity and altruism; that is, ethical accountability. Arthurs believes that globalisation has changed the ‘tacit and explicit assumptions about lawyers’ ethics, behaviour, affiliations and mentality’30 so much that 24 The view of lawyers as wedded to overcharging is not just that of the usual suspects – academics. Note this observation of Brian Gilbertson, ex-CEO of BHP-Billiton, commenting on the delays in securing his final payout from BHP (extracted from James Chessell, ‘Lying Low for BHP Cheque to Arrive’, 25 April 2003, The Age, Business, p 1): ‘These things are normally resolved in an hour or two . . . however, my lawyers are paid by the hour, which means I’m not sure this will be resolved in my lifetime.’ Dolovich, Chapter 1, n 27, describes the billable hour as the concrete expression of the systemic concern for profit maximisation – where 3000 hours pa of billable time ‘hardly raises eyebrows’ (citing Ross Guberman, ‘Running from the Law’, Washingtonian, Washington DC, October 2001, 52) and, at even 2400 hours, if every two billable hours requires three hours in the office, the lawyer concerned is working 10 hours a day, 7 days a week, 365 days a year. Such levels are in fact practically impossible and therefore, evidence of over-billing/dishonesty or lack of integrity. Deborah Rhode and David Luban, Legal Ethics, The Foundation Press Inc, Westbury, New York, 2nd ed, 1995, p 43, concur: ‘Laments about professionalism and the erosion of professional ideals have recurred throughout the last century. However, the current sense of disquiet does have certain distinctive features. It is mirrored by vocal public criticism of the profession and responsibility is being assigned to the bar as a whole, not to some single sub-group of offending practitioners . . . The lawyer-statesman is losing ground to the lawyer-entrepreneur. In many professional contexts what is most consistently regarded is less character and craft than rainmaking and billable hours.’ Efforts by major clients to move from hourly billing to the amorphous concept of ‘value’ billing in the wake of the 2008–10 global financial crisis have yet to result in measurable change to the dominant billing practice. 25 James McConville ‘Professionalism, Commercialism and the Practice of Law’ (2001) 75 LIJ 69. 26 Dolovich, Chapter 1, n 27. 27 ibid. 28 Longstaff, in Fiona Buffini, ‘The Decline of Ethical Behaviour’, The Australian Financial Review, Sydney, 19 April 2002, 57, Chapter 1, n 20. 29 Stuart Fagg, ‘Jury out on CLERP 9, Says Justice Owen’, Lawyers Weekly, Sydney, 27 August 2004, 4. 30 Harry Arthurs, ‘The World Turned Upside Down: Are Changes in Political Economy and Legal Practice Transforming Legal Education and Scholarship, or Vice Versa?’ (2001) 8 International Journal of the Legal Profession 11.


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it’s difficult to say what ‘norm of lawyering’ should now be promoted and what approach to professionalism is now appropriate? He thinks that this question may be simply obsolete. Thus ‘[a]ll too often, constitutions are adopted, judicial institutions are established, rights are declared, remedies are created, litigation is commenced, landmark judgments are pronounced . . . [and] not much changes’31 because all these positive outcomes (favouring the rule of law) are occurring inside the larger and more influential trend to globalisation. Consequently, Arthurs thinks that, nowadays, hardly anyone believes in the progressive potential of law,32 and if this is true, we have to ask why anyone would think there is much to be gained from attempts to redefine and encourage legal ethics? The response can only be an existential and continuing ‘because there is no alternative.’ Gerber observes that, among US lawyers, the struggle to uphold their ethics is a constant part of everyday practice.33 Lawyers, according to Gerber, are constantly crossing the border to work in the land of commerce, but must maintain their diffidence about doing so. They must be ‘never quite at ease, never at home’,34 or as Kronman put it: ‘A lawyer who is doing his job well, dwells in the tension between private interest and public good and never for a moment overcomes it.’35 At the individual firm level, if a lawyer’s exemplary personal values are not reflected in the culture of the wider firm, then the firm may never truly succeed in the sense of performing at its best. As a firm it may still make money, but its lawyers will not maximise their income, their sense of satisfaction and especially, any sense of loyalty to those around them. In this sense, the individual lawyer’s ethical consciousness can only contribute to sustained firm profitability if all fee earners have similar, consistent personal values and indeed, those are the values of the firm. If all this is logical, what general approach to encouraging professional ethics is most likely to succeed? One view is that it’s all about publicity – publicity about reputations. Chief Justice Spigelman for example has firm views on the difficulty that clients face in assessing the quality of the professional services they receive, which he defines as ‘information asymmetry.’36 His suggested remedy for this 31 ibid. 32 ibid, p 13. 33 Leslie Gerber, ‘Can Lawyers be Saved? The Theological Legal Ethics of Thomas Shaffer’ (1994) 10 Journal of Law and Religion 347, referring to and approving of TL Schaffer, Inaugural Howard Lichtenstein Lecture in Legal Ethics: Lawyer Professionalism as a Moral Argument (1990) 26 Gonzaga L Rev 395 in the following terms: ‘Philosophically, the American lawyer operates with only two realities: the free individual and the rights-insuring state. Theologically, argues Shaffer, this is nothing less than an invitation to idolatry’. 34 ibid, p 365. 35 Anthony Kronman, ‘Professionalism’ (1999) 2 Journal of the Institute for the Study of Legal Ethics 89. 36 Spigelman, op cit, n 2, pp 9–10. Spigelman CJ states as follows: ‘Justice Souter who delivered the judgment of the majority in California Dental Association drew expressly on Akerlof’s analysis of the market for lemons and its identification of the significance of asymmetric information. His Honour said: ‘ . . . The quality of professional services tends to resist either calibration or monitoring by individual patients or clients, partly because of the specialised knowledge required to evaluate the services, and partly because of the difficulty in determining whether, and the degree to which, an outcome is attributable to the quality of services (like a poor job of tooth filling) or to something else (like a very tough walnut) . . . Patients’ attachment to particular professionals, the rationality of which is difficult to assess, complicate the picture even further . . . ’ [California Dental Association v Federal Trade Commission, supra, at 772–773].’

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problem – the assessment and publication of information about lawyers’ reputations37 – is clearly relevant to the encouragement of greater ethical accountability. Thus: In the legal profession, reputation is determined to a large extent by [informal] peer assessment. Other lawyers are in a better position to judge both skill and integrity than clients, [except in the case] of those who can afford in-house counsel or second opinions. The mechanisms by which reputation is assessed by fellow professionals perform important functions for the entire body of users of legal services.38

Spigelman further enumerates the factors that, in his view, improve and encourage professional function. Notice that his list has far more to do with personal qualities than with the traditional focus on technical competence alone: [E]ducational qualifications, manifest personal integrity, enforceable professional ethical obligations, the fiduciary relationship, the role of reputation, compulsory insurance, fidelity funds, retrospective control of fees . . . have a cumulative effect which attenuates to a substantial degree the problem of information asymmetry.39

This list is more than just wishful thinking: it goes to the elements of the ethical mix or paradigm and that paradigm can be chosen. What would it take for the profession to voluntarily establish its own institutions for monitoring legal ethics? Is it plausible that the combination of some external stimulus (that is, an ethical conduct crisis), a threateningly interventionist government and the emergence of an innovative professional leader will be necessary? Rather than simply assuming lawyers’ success to be the result of some dimly perceived process of enhancing social capital through natural selection,40 the profession ought to be consulted as to an expanded set of criteria for ethical assessment and, having been consulted, might then be open to change, whether or not it is pushed. Remembering that there is still much innovation and determined, humane activity occurring within legal institutions,41 and despite the effects of 37 ibid, p 13. Spigelman CJ says: ‘As Joseph E Stiglitz, who shared the 2001 Nobel Prize with Akerlof, said: “ . . . markets for information are inherently characterized by imperfections of information concerning what is being purchased; and mechanisms like reputation – which played no role at all in traditional economic activity – are central.”’ 38 ibid. 39 ibid, p 15. 40 Perhaps, since there are many suggestions that the common law ‘evolves’ (for example, Allan C Hutchinson, Evolution and the Common Law, CUP, New York, 2005) so also the ‘legal system’ might select those lawyers with the most aggressive traits and reward them with survival? Even if this inheritable connection is plausible, the natural system is now also heavily modified by humans who are free to decide which elements of professionalism are desirable to advance (including, if the analogy holds water, to advance in an evolutionary sense). 41 See generally, Michael J Powell, ‘Elite Professionalism in Modern Society: Its Persistence and Its Limits’, in Richard L Abel (ed), Lawyers: A Critical Reader, The New Press, New York, 1997. Powell asserts that professional associations, as distinct from a profession itself, are key players in public interest initiatives. According to Powell, the activities of the elite Association of the Bar of the City of New York (ABCNY) is a paradigm case of the mix of self-interest and public interest, including on occasion more public interest activity than its constituent client group – large corporations – would require or agree with. Although ‘ . . . lawyers even in their collective associations find it difficult to distance themselves from their clients’ interests.’, [this is because of] ‘ . . . their close identification with, and sharing of, those interests.’ (p 167). Powell says that despite these synergies, elite bars such as the ABCNY, advocated civil rights, indigent defence, mental health and divorce law reform: all issues upon which they could have remained silent. To this extent (p 171): ‘Civic professionalism provides a timely correction to the popular debunking of professionalism as mere ideology, masking occupational self interest.’


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globalisation, it is possible that renewal in legal ethics may be a bridge between the amoral tendencies of globalised legal practice and the ordinary, everyday legal needs of the wider society. Arthurs’ insight about motivation is, however, crucial. Accepting that the question is not so much whether there is a social need for better legal ethics, but whether there is now much point to any effort directed towards change, the personal attitudes of legal practitioners are of renewed importance in the re-identification of law as a ‘moral business’. Essentially therefore, while legal ethics may be defined and encouraged in the manner he has suggested, if specific techniques of encouragement are likely to be rejected by practitioners, the model may not be worthwhile at all or may require significant modification. The operative issue is how to determine what assessments of legal ethics will be acceptable to practising lawyers? In one critical area, the profession has long accepted that its performance can be monitored and assessed. Nearly all lawyers will concede that their technical competence ought to be periodically enhanced through Continuing Legal Education (CLE) or Continuing Professional Development (CPD) programs. Some also understand that their competence should be assessed when they seek Specialist (or Specialism) Accreditation and actively seek endorsement under several now well-established schemes.42 The profession accepts that there is a high likelihood that competence can be improved (and negligence reduced) by appropriate assessment through specialist schemes. So also lawyers will come to accept ethics assessment in due course, just as has occurred in medicine. Even if law still has a long way to go in the assessment field as compared to, for example, medicine, many lawyers already appreciate that their continuing reputations depend on at least some ongoing assessment, formal or otherwise, of their technical capacity. In the next section the various approaches to assessing and testing competence are outlined in order to demonstrate what norms already apply within the key comparative profession of medicine and to illustrate the possibilities for post-admission assessment of lawyers’ ethics.

4.5 Testing lawyers’ competence, and indirectly their ethics While this present discussion is primarily concerned with testing for competence, competence and ethics are key lawyer attributes and can only be separately considered with some artificiality. Their connectedness is often overlooked. Both competence and ethics are needed to deliver services sustainably, so the competent lawyer is one who is also ethical. The ‘technically’ competent but unethical lawyer is arguably incompetent, even if this deficiency is only discernible over the medium to longer term as bad behaviour is sanctioned after a complaint is adjudicated. Similarly, the ethical lawyer must be one who claims competence; for 42 Adrian Evans and Clark Cunningham ‘Speciality Certification as an Incentive for Increased Professionalism: Lessons from Other Disciplines and Countries’(2003) 54(4) South Carolina Law Review 987–1009.

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to allow technical proficiency to evaporate over time shows insufficient (ethical) care for clients. Succeeding sections of this chapter explore several dimensions in assessing the competent and ethical lawyer. In the measurement of competence many research issues have had to be tackled and these often enter into ethics territory. These interrelationships involve differing terminologies, echoing earlier discussion about assessment in legal ethics. The comprehensive effort to take medical ethics seriously by exploring the meta-concepts of quality and medical professionalism is instructive, as are sections that deal with the difficulty of assessing lawyers’ competence. A number of UK studies of ‘transaction criteria’ have attempted indirect measures of ‘competencies’ by looking at client satisfaction. A so-called ‘standardised client’ protocol has been used to assess lawyers’ allimportant interpersonal skills. The significance of clients’ views about lawyers’ performance are discussed, as is the positive impact of insurers’ risk management, which assigns a predictable financial benefit to negligence prevention and cannot fail to have implications for greater care about legal ethics at the organisational level of law firms. Taking the above factors into account, consideration of whether regulatory accountability for competence is adequate precedes a final discussion about whether continuing legal education improves competence, concluding that while such training achieves something, we really do not know what that is in the absence of an assessment regime.

4.5.1 Overview of ‘competence’ research Promoting lawyers’ competence has been a constant theme of common law jurisdictions over the last 25 years. Paterson has sourced the discussion about competence to the need of law firms to compete on something other than price, which was forced on them by what he describes as the ‘re-negotiation of professionalism’,43 consequent on the rise of consumerism and changes in industry regulation.44 In the criminal, family law and personal injuries fields, access to law was often mediated through public legal aid funds and these funds were, coincidentally, under restriction from conservative governments. Concerted efforts were made in the United Kingdom in the early 1990s to work out how to save public funds by differentiating quality service delivery among the firms competing for public funding and then ‘franchising’ or contracting only those which met minimum quality criteria. At the legal aid level, the reason for this early energy for increasing quality or competence in lawyers is hard to pin down. Whether financial stringency or more subtle ‘value for money’ arguments dominated among the drivers of quality enhancement is a moot point. Certainly, ‘total quality management’, and 43 Alan Paterson, ‘Editorial’ (1994) 1 International Journal of the Legal Profession 131, 133. 44 ibid, p 133. ‘The enhancement of quality and the empowerment of consumers is an important part of the renegotiation of professionalism . . . [A]s competition follows deregulation so the dangers of competing on price have become apparent. Competition on quality has become the only sensible route for most practitioners.’


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other iterations of that term were well advanced in law firms of all sizes,45 but public funding complicated the situation at the other (legally-aided) end of legal markets. Value-for-money certainly incorporated notions of greater respect for client outcomes, but it is unlikely that that factor alone has driven a concern for competent ‘public’ practitioners. Sommerlad, commenting in 1995 on this ‘managerialism’ trend, said that: whilst the case for increased control over the spending of public money and a defence of the interests of the recipients of legally aided services is unexceptional, the degree to which the latter is likely to result from, and whether it is indeed the primary objective of, franchising/contracting must be questioned.46

Various research experiments (detailed in 4.5.3) were undertaken to ‘measure’ lawyers’ knowledge, competence and excellence, or, more generically, ‘competence’. And client satisfaction with that competence was explored, mostly in the United Kingdom. Such measurement now has a pedigree and is not as revolutionary as it might appear. Competence research has been focused on the legal aid environment above all else. This might indicate that client outcomes alone, rather than ethics and process issues (that is, how the lawyer achieved the result), were important to funders. But this is too simplistic a position. Although there has been a lot of effort put into testing and, if possible, defining appropriate ‘transaction criteria’ of competent performance, ‘performance standards’, badges of quality – including ‘quality marks’ and ‘certification standards’ – and working out how to assess ‘competencies’ within practical legal training environments, there was also a concern to treat client opinion seriously and understand client ‘satisfaction’ with their lawyer and the services received, especially levels of satisfaction among legally-aided clients. The concept of client satisfaction in particular was seen as a link between competence and broader ethical accountability. Researchers who were contracted to legal aid providers began to grope for some consensus as to the best assessment techniques, but also recognised fundamental limitations on the quantitative assessment of quality. Implicitly, these concerns were driven by a respect for legal aid clients not as case numbers, but as citizens of as much worth as private and corporate clients. Quality assessment in law has often had a background element of wider social accountability built into its (superficially mechanistic) methods and these investigations were no exception. To the extent that legally aided clients are often also the patients of the public health system, it is not surprising that efforts at addressing quality within medicine tend to use a similar nomenclature and offer a similar analysis to the qualities expected of legal aid practitioners, as the following comparative discussion illustrates. 45 See, for example, Kriss Will, ‘Formal Quality Systems: An Introduction’, (1996) 70 LIJ 31. 46 Hilary Sommerlad, ‘Managerialism and the Legal Profession: A New Professional Paradigm’ (1995) 2 International Journal of the Legal Profession 159, 181.

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4.5.2 A comparative assessment of quality measurement in medicine Medical quality assessment has travelled considerably further than in the legal profession. Firstly, in relation to the frequency and timing of assessment, the norm in medical education, not just at the undergraduate level but postgraduate as well, involves sequential stages of learning and testing. Although most of the concentration in medical education is still upon competence, that discipline is comfortable about including elements of both competence and ethics within quality assessment. Stern considers that the key to assessing quality is in the use of multiple assessment tools of multiple issues over time,47 a ‘triangulation’ approach that is reflected in the variety of ethical issues and techniques and is addressed in the pre-admission and post-admission phases advocated in this book. Medical practitioners are acclimatised early to ongoing assessment. It is uncommon, perhaps even negligent, for new medical graduates in Western cultures to decline to improve their knowledge and skills after first being licensed, yet such refusal is commonplace within law. Traditional approaches to monitoring the quality of medical practitioners have mirrored law’s reactive approach, concentrating on disciplinary enforcement and some publication of that information. This emphasis continues with somewhat more publication, particularly in the United States. Some states now require doctors to provide pertinent information on a central website. This includes: names and dates of medical school(s); where the practitioner has rights of practice; primary practice address; specialty board certificates; year commenced practice; medical school faculty appointments; pleas of guilty or convictions for criminal offences; any disciplinary action or retraction of privileges in the last 10 years; confirmation of minimum levels of professional indemnity insurance and any civil action resulting in a payout of more than $5000.48 In some medical specialities, comparisons have extended to the most acute issues of patient survival. In the United Kingdom, cardiac mortality ‘score cards’ have begun to be used to allow potential cardiac patients to choose those cardiac surgeons and potentially hospitals whose prior patients have survived the longest.49 This ‘baseline’ information is perhaps secondary in its quality indication, but it is readily comparable, relatively easy to collect and highly accessible.

47 David Stern, Presentation to Georgia State University Law Review Symposium (Jan. 29, 2004) (morning transcript available at , at 10–13). 48 See, for example, the Florida Practitioner Profile <www.doh.state.fl.US/mqa/Profiling/index.html> referred to in Steven K Berenson, ‘Is It Time For Lawyer Profiles?’ (2001) 70 Fordham Law Review 645. In Florida, additional opportunity exists to optionally list a range of awards, languages and publications, as a concession to the competitive spirit, as well as providing further information relevant to patient choice. 49 Performance information about individual cardiac surgeons was made available in the UK in 2004. See D Neil, S Clarke and J Oakley, ‘Public Reporting of Individual Surgeon Performance Information: United Kingdom Developments and Australian Issues’ (2004) The Medical Journal of Australia 181, 266. Clarke and Oakley have also argued that comparative information about surgeons’ performance should be made available to potential patients in the exercise of the principles of informed consent – Steve Clarke and Justin Oakley, ‘Informed Consent and Surgeons’ Performance’ (2004) 29 Journal of Medicine and Philosophy 11, and are preparing to publish a wide-ranging examination of the ethical issues involved.


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Stern also supports the US ‘National Practitioner Data Bank’, (similar to the NSW Office of Legal Services Commissioner website record of proven disciplinary offences)50 recording malpractice actions against medical practitioners and ‘adverse actions’ such as substance abuse, felony, fraud, mental disorders and unprofessional conduct. These are the easily recorded ‘negatives’ that also play an elimination role in the assessment of lawyers’ ethics. He is more cautious about adequately measuring the ‘positives’ – altruism, responsibility, confidentiality and integrity – but agrees that that task must be attempted and notes that other US medical researchers have ventured into statistical analyses of medical practitioners’ responses to questionnaires which look at these less tangible qualities. Within the field of internal medicine, the positive qualities of professionalism (which seem to cover both competence and ethics in this context) have been defined in one study as ‘aspiring towards altruism, accountability, excellence, duty, service, honor, integrity and respect for others.’ This 1995–96 study classified competence as ‘excellence’ in professionalism,51 and surveyed medical students and residents from five medical institutions in the north-east region of the United States. Their aim was to assess respondents’ attitudes to the relative importance of different elements of professionalism associated with both the medical education and residency training environments. Of the 757 distributed questionnaires, 565 were returned (75% response rate). Of those, 529 (94%) were used in the analysis. A factor analysis identified the following three sub-scales (elements) of professionalism as the most important to these residents: excellence, honor/integrity, and altruism/respect,52 all qualities which can be readily identified as a part of lawyers’ ethics. The authors interpreted the results ‘as an encouraging first step toward the development of a reliable scale that measures professionalism within the environment of medical education and residency training.’53

50 See Legal Services Commissioner, NSW, <www.lawlink.nsw.gov.au/olsc/nswdr.nsf/pages/index> at 12 December 2006. 51 EL Arnold, LL Blank, KEH Race, N Cipparrone, ‘Can Professionalism Be Measured – the Development of a Scale for Use in the Medical Environment’, (1998) 73 Academic Medicine 1119. For the 529 (94%) questionnaires analysed, the mean score for the measured 12 indicators of professionalism was 92.9 (Standard Deviation 11.9), with higher scores indicating more positive perceptions. The internal reliability of the scale was moderately high (alpha =.71). The three ‘highest’ categories displayed Eigen values (alpha coefficients) of 3.18 (SD.72), 1.70 (SD.60), and 1.20 (SD.59), respectively. In other words, excellence, honor/integrity and altruism/respect were statistically important to health professionals as indicators of their own professionalism. In a subsequent 2001 study modelled on Arnold (JA DeLisa, ‘Measuring Professionalism in a Physiatry Residency training program’ (2001) 80 American Journal of Physical Medicine & Rehabilitation 225), these professionalism priorities were substantially repeated in a group of Physiatry (sic) residents. A 12-item questionnaire was sent to 122 psychiatry residents with a 59% response rate. The mean item score was 7.7 (SD=1.0) on a 1–10 scale, where 10 represented the highest level of professionalism. Internal reliability was adjudged satisfactory (Cronbach’s alpha =.75). Factor analysis put the same three factors (excellence, honor/integrity, altruism/respect) as responsible for 64% of variance. Eigen values were 3.35, 2.37, 1.31 respectively. In other words, ethical dimensions of practice were statistically important to self-perceptions of professionalism among US psychiatrists-in-training. 52 ibid. This list also constitutes the definition of professionalism reached by The American Board of Internal Medicine. 53 ibid, Abstract.

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It would be a surprise – and lead to questioning of the results – if excellence (or competence) were not rated by health professionals as the most important element in medical professionalism. Their professionalism begins, particularly for students, with the notion of competency in patient interaction. The focus of US medical students on the importance of the one-to-one experience is understandable, but the significance of US medical assessment for present purposes is that it has come to see technical medical competence as no more important than the whole range of complementary competencies. Theory, skill and (moral) behaviour all have their place within assessment. Thus Stern defines the domains of professionalism (of US medical practitioners) as excellence (competence), duty, integrity, compassion, confidentiality and self-improvement.54 He is confident that it is not just possible but appropriate to measure knowledge (facts) via written examinations; skills (techniques) via clinical skills tests and behaviours (that is, in the US context, ethics) through three specific techniques: 1 Near context observations with standardised or dummy patients,55 2 In-context observations, first from supervisors; secondly from peers (who can identify duty, responsibility, inter-professional respect, confidentiality and integrity); and, thirdly patients (who can identify compassion, respect, communication skills and timeliness),56 and 3 Administrative data sets (quality of patient records, clients’ files) which can record administrative and regulatory compliance, attention to detail and altruism (via disclosed voluntary contributions to the profession and to wider society). These techniques have clear parallels as well as differences for potential legal ethics assessment. The utility of in-context peer and patient observations (or of legal supervisors in clinical settings)57 and the usefulness of secondary data such as patients’/clients’ files are obvious parallels, but the emulation of standardised or dummy patients (clients) to assess lawyers’ professionalism would have considerable practical and political difficulty. Standardised clients are conceptually attractive and have been used in impressive research environments and in the small jurisdiction of Scotland to assess lawyers’ communication skills (see section 4.5.3.3), but the expense and considerable organisation required is likely to make law societies wary of wholesale adoption across the profession. Legal professional leaders can clearly pressure the larger firms to commit more money to the post-admission education environment than they currently do, but that 54 David Stern, Conference on ‘Enhancing the Accountability of Lawyers for Unprofessional Conduct’, Transcript of Proceedings on ‘Measuring Professionalism’ (2003) 54 South Carolina L Rev 943. See also DT Stern (ed) Measuring Medical Professionalism, OUP, Oxford, 2006; JGWS Wong and EPT Cheung, ‘Ethics Assessment on Medical Students’, (2003) 25(1) Medical Teacher 5–8. 55 Actors who play a secret role as a patient for purposes of an assessment process. 56 This list is very close to the list of qualities measured in similar research within the legal client environment. See C Cunningham and P Maharg ‘Effective Lawyer Client Communication’ (ELCC) project. See at 20 October 2005. 57 Supervisor in-context observations of student–doctor performance may be functionally indistinguishable from those of clinical legal supervisors’ observations of the learning processes of student lawyers.


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will never be as much as is available through the public subsidies provided for continuing medical education. Nevertheless Stern has identified several key requirements of effective medical ethics assessment, all of which are transferable to legal ethics assessment: . . . realistic context, a situation that involves conflict (i.e. choices between equally worthy values), [and] evaluation of reasoning strategies rather than only the ‘correct’ resolution. On top of this, transparency and symmetry (all levels are evaluated using the same methods) are important.58

Legal scenarios and anecdotes within peer interviews of lawyers would readily include ‘realistic content’ and most, if not all of these, involve choosing between competing ethical types and choices, some of which will go well beyond the nominally ‘correct’ position that might be suggested by a professional conduct rule. But it is in ‘peer observation of lawyers’ duty, responsibility, inter-professional respect, confidentiality and integrity’ (to use Stern’s categories), where transferability to legal education is desirable and most promising.59 Although (postadmission) continuing assessment in law through such observation would cost more than the profession’s comparatively tiny current expenditure on continuing legal education, the positive experience of medicine is enough at least for some US legal academics to observe that final admission to legal practice should not occur until a further bar exam is taken, not less than three years after initial admission to practice.60 Barnard, who has since been followed by Stuckey,61 puts the issue succinctly: If the typical bar-applicant is twenty-something years old, and the typical bad lawyer is at least twenty years older, then it is little wonder that the character and fitness screening process usually fails to detect those lawyers who will get into trouble.62

Importantly, Barnard has identified that post-admission assessment extends well beyond medicine. If, in the United States: airline pilots, public school principals, orchestral musicians, police officers, firefighters, systems engineers, accountants and trial judges are already subject to systematic periodic performance evaluations of one type or another . . . Where . . . are the lawyers?63

The question as to which attributes the legal profession would be willing to assess if ‘push came to shove’, is addressed in Chapters 4 to 8. In medicine, 58 Stern, op cit, n 354, pp 8–9, cited in Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’, Section 3: The Challenge of Ethical Assessment, The Law Society of England and Wales, February 2009, unpublished, n 44. 59 Peer assessment of lawyers is addressed reasonably well in Ontario, parts of the United States and several Australian states, but only in the context of specialisation schemes that have yet to penetrate the general practitioner population to any significant degree. 60 Jayne W Barnard and Mark Greenspan, Incremental Bar Admission: Lessons from the Medical Profession, (2003) 53 J. Legal Educ. 340. 61 Roy Stuckey, ‘The Evolution of Legal Education in the United States and the United Kingdom: How One System Became More Faculty-Oriented While the Other Became More Consumer-Oriented’ (2004) 6 International Journal of Clinical Legal Education 101, 144. 62 Jayne W Barnard, ‘Renewable Bar Admissions; A Template for Making “Professionalism” Real’, (2001) 25 J Legal Prof 5. 63 ibid, p 13.

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performance measurement is both expected and accepted, while in law the assessment issue is still systematically shunned. Clearly, the experience of the medical profession shows that there is great scope for improvement in legal professional education and assessment and the leading edge among lawyers has come from research into the subtle aspects of behaviour which coalesce in legal ethics: notions of transactional competencies and ‘dummy’ clients views about their lawyers’ interpersonal skills. The next sections of this chapter deal with prior investigations into these higher-level qualities.

4.5.3 Research into knowledge-competence-excellence of lawyers 4.5.3.1 Differing terminology in the improvement of competence As with the complex term ‘ethics’, any discussion about lawyers’ competence or quality must recognise their indeterminacy. Sherr has referred to Cooper’s caution in defining notions such as competence or quality, since ‘[a]lmost all such attempts are doomed to syllogism and ellipsis: a competent person is a person who is competent’,64 adding that: Quality in the abstract implies excellence . . . [but] . . . quality in terms of client satisfaction provides only a partial, and potentially misleading, basis for defining quality. Furthermore, the definition and measurement of quality is contingent on the economic context of the service being provided, the nature of the approach taken to assessment and the method of formulating and implementing any standard. It is fair to say that there is no agreement on what constitutes quality within the profession itself.65

Sherr, together with Moorhead and Paterson, are at pains to point out that quality (read ‘competence’ in that context) is a continuum ranging ‘down’ from excellence to competence-plus, to threshold competence, to inadequate professional services and finally, to non-performance.66 Giddings also refers to the vague nature of quality definitions in their range from idealism at one extreme to minimalism at the other, but in so doing implies that neither extreme is useful for purposes of behavioural improvement. In a description which echoes the remarkably similar difficulty in attempting to define acceptable ethical behaviour, he observes: The literature on quality and quality management is replete with obscure definitions of quality. At one level, quality is an aspirational impossibility; something which is pursued but never achieved, a continual striving for excellence. At the other, quality is 64 Avrom Sherr, Richard Moorhead and Alan Paterson, ‘Assessing the Quality of Legal Work: Measuring Process’, (1994) 1 International Journal of the Legal Profession 135, 148, referring to Jeremy Cooper, ‘What is Legal Competence?’ (1991) 49 Modern Law Review 323. 65 ibid, p 148. 66 Avrom Sherr, Richard Moorhead and Alan Paterson, Lawyers – The Quality Agenda: Vol 1: Assessing and Delivering Competence and Quality in Legal Aid – The Report of the Birmingham Franchising Pilot, Legal Aid Board, London: HMSO, (1994).


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simply the compliance with a standard, a ‘fitness for purpose’ or ability to satisfy the clients’ needs.67

The difficult nature of quality as a concept is simplified slightly if it is accepted that quality in legal practice follows the lead from medicine and includes both competence and ethical sensitivity. In this context, it is unhelpful to draw distinctions between the two. Thus Justice Rogers, a former NSW Supreme Court commercial law judge, commenting on the in-house lawyer’s unenviable task of keeping corporate secrets while adhering to wider professional standards of independence (arguably an ethical virtue), observed that ‘independence’ was more important and described that priority as simply a matter of ‘competence’.68 Similarly, Ravlic, writing about the Enron collapse,69 castigated Arthur Andersen as auditors not for their lack of independence, but for basic incompetence: ‘All professionals, including auditors, can be independent. Much better if they know what they are doing, rather than being independently stupid.’70 As observed earlier, competence surely includes ethical sensitivity, but the inclusive nature of competence as a term, like excellence and quality, can also allow confusion. Needless to say however, the professional function requires in the end, each of competence, ethics and certain attitudes and values. 4.5.3.2 Approaches to improving and assessing ‘competencies’: Transaction criteria In the United Kingdom serious efforts to measure competence commenced in the early 1990s when Sherr et al, contracted on behalf of the then UK Legal Aid Board, began to develop measures of ‘acceptable’ quality. They set quality at a level between ‘threshold competence’ and ‘competence-plus’, in order to get the realistic balance between what was possible to measure in resource terms and what would deliver minimally acceptable outcomes to clients.71 It was then important to understand if the impact of the proposed franchising scheme – a licensing of certain private law firms to receive legal aid payments – was manageable in terms of efficiency in legal aid delivery.72 Sherr recognised that the objectives were the quality middle ground and a concern for practicality. Case outcomes were discarded fairly quickly by Sherr as measures of quality. They were not considered to reliably indicate quality because they were the product of numerous variables, many outside the lawyer’s control. Thus the research reference point was to be the lawyer’s client file, a document that was accessible to the researchers, despite normal confidentiality concerns, because of 67 Jeff Giddings, ‘Legal Aid Services, Quality and Competence: Is Near Enough Good Enough and How Can We Tell What’s What?’ (1996) 1 Newcastle Law Review 67, 67. 68 The Hon. Andrew Rogers, Lawyers Weekly, Sydney, 17 April 2002, 17. 69 See generally Chapter 2, notes 39–43 and accompanying text. 70 Tom Ravlic, ‘Andersen was Stripped of Riding Colours Long Before Official Result was Called’, The Age, Business, Melbourne, 17 June 2002, 6. 71 Sherr, et al, op cit, n 66. 72 ibid, p 135.

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the disclosure conditions under which legal aid had been granted. Additionally, a file existed for every legal aid client because the lawyer could not otherwise be paid under the franchise agreements. The detailed process of defining, trialling, measuring and deciding on appropriate transaction criteria73 of quality proceeded in the context of three other implementation objectives, all very necessary if the whole managerial thrust was to succeed. Firstly, the criteria were to measure process not outcomes (because processes are more easily compared). Secondly, they had to be pitched at a level acceptable to the profession (since professional support was not to be assumed) and thirdly, they had to be affordable.74 These three ‘virtues’ of the research objective are instructive because they mixed the Kantian approach (in the focus on process) with the utilitarian (in the need for affordability). In so doing, Sherr increased the chances of the acceptability of their results to the profession. The lessons of that methodology are as relevant to the assessment of legal ethics as they are to measuring competence. While it was possible to use only summative assessment in the methodology (that is, the provision of yes/no answers to the presence of certain criteria, without delivering qualitative feedback on the file), the alternative ‘formative’ assessment process, which provides for such feedback, was chosen by Sherr. This choice was motivated by a wider concern to improve performance. The quality standards (‘transaction criteria’) were divided into three groups: 1 information obtained from the client (broken down into small bites of standardised factual information about the subject matter of the file), 2 advice given by lawyers based on that information, and 3 further action required, as identified by the lawyer. In the Legal Aid Board study by Sherr et al, 181 cases were assessed and analysed to display ‘omission rates’, that is, failures of lawyers to record information on the file where that information was critical to running the case. These rates were plotted on axes of case numbers x omission rate and the resulting normal distribution showed that the median omission rate was around 20–25%;75 that is, one-fifth to one-quarter of the lawyers surveyed omitted basic information from the client file. While this ‘omission rate’ seems high, it was considered acceptable and indicated – to the apparent satisfaction of the Legal Aid Board at any rate – that the overall standard of work was satisfactory.76 Today, a basic competence failure rate of one-quarter of surveyed practitioners seems unacceptable, but these researchers were more sanguine.

73 ibid, p 148: ‘[T]ransaction criteria represent the considered opinions of the profession on what constitutes quality of process in terms of each category of work’; (p 155) ‘as a measure of the basic material to be expected in a competent lawyer’s file, they appear to be providing a useful tool with which to discriminate between the competent and the incompetent.’ 74 ibid, p 144. Accordingly, the use of qualified lawyers as assessors was not feasible. 75 ibid, op cit, n 66, pp 144–5. 76 ibid.


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To provide balance, they turned to three other measures of quality to provide comparative information to the transaction criteria. Firstly, a number of file auditors were asked to ‘step back’ and provide an (intuitive) ‘gestalt’77 assessment of the overall quality of the file.78 Secondly, although clients’ views were acknowledged to be of limited use because of their lack of exposure to the actual legal work and the possibility that their opinions would in any event be swayed by outcomes, client assessment via a survey of client satisfaction rates was carried out and ‘significant, positive correlations [were observed] between client satisfaction and omission rates on the largest section of the criteria (facts).’79 This seems a strange result, but the omission rate did not appear to lessen client satisfaction. The unlikely correlation is not explained, but it may be that clients were basing their decisions about satisfaction on other factors, for example, their lawyers’ perceived empathy for their clients’ predicaments. Finally, peer review was used to cross-check transaction criteria results in 16 cases. Seven practitioners chosen by the Law Society of England and Wales (Law Society) were appointed as peers and, although they differed considerably among themselves as to the presence of quality, ‘both [practitioners and auditors] were in broad agreement that the cases were of a satisfactory standard (if we take an omission rate of 25% or worse as being cause for concern).’ 80 The peer review process could have been stronger if its case coverage was more extensive and augmented by the opinions of third parties such as court officials,81 but the peer comparison was still of value. Overall then, their cautious conclusion was that ‘on the evidence available, the transaction criteria do appear to be indicative of genuine levels of quality.’ 82 The researchers nevertheless also identified a number of limitations of those criteria as quality indicators. Firstly, such criteria could not measure a critical component of legal ethics; the ability to grasp complexity and make a judgment. Secondly, they did not directly assess lawyers’ interpersonal skills with clients.83 Thirdly, they probably did not encompass, to the satisfaction of the profession, the full range of quality concerns: In order to analyse a complex set of behaviours and performances the world of competence was divided into smaller areas of assessment. A danger with any such subdivision must be that the sum of its parts might never add up to the whole . . . In other words, breaking down the ingredients of lawyers’ competence into parts and then reporting 77 gestalt (plural gestalts). A collection of physical, biological, psychological or symbolic entities that creates a unified concept, configuration or pattern which is greater than the sum of its parts (of a character, personality, or being). Australian Oxford English Dictionary, 2nd ed, OUP, South Melbourne, 2004, p 523. 78 Sherr, et al, op cit, n 66, p 148. 79 ibid, p 148. It was observed that the advice and action sections showed poorer performances on the transaction criteria, and these were also more difficult for clients to assess. 80 ibid, p 153. 81 Third party input from judges, court clerks, barristers’ clerks, barristers, trained observers and disciplinary bodies is useful, except to the extent that client confidentiality must be maintained, the opinions tend to be particularly subjective and the collection of all this material is very expensive. 82 Sherr, et al, op cit, n 66, p 155. 83 ibid, pp 143–4.

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on assessment . . . may still only be approximate to the whole and may be difficult for legal practitioners to recognise and accept. Whatever system is arrived at must gain professional acceptability. Even the notion of assessment causes major difficulty to many professionals . . . [who see in the professional ideal a] . . . lack of external control and therefore assessment.84

If transaction indicators are secondary indicators of quality in the sense that they reflect only what a practitioner chooses to record, it might be thought better to focus on what really happens in the progression of a case.85 Logically, this is a straightforward position, but it also requires political and social will to implement. Direct measures of ethical judgment (for example, the extent of learning from ‘life’ experiences, breadth of professional experience, understanding of complex systems) are difficult and expensive to construct and measure, as compared with the secondary indications that may be provided by transaction and other criteria. On the other hand, and considering competence alone: documentation procedures, the thoroughness of case management systems, number of years in practice, accreditation as specialists, percentage of work done in the specified area and the existence of internal complaints processes,86 are relatively easy to collect, even if their value is limited to some inferences about performance. But it is not unreasonable to make inferences about performance if they are treated cautiously – as a part of the picture only – and observations of actual case or transaction behaviour are not practical. And peers’ opinions of colleagues’ ethical sensitivity fall into this category. Chapter 7 explains how such inferences can be drawn from such opinions. 4.5.3.3 A quantitative approach to assessing lawyers’ interpersonal skills As a counter to the dominance of the rational, objective and achievement foci, Silver suggested in 1999 that there was then a case for incorporating so-called ‘emotional intelligence’ – or interpersonal skills – into legal education curricula.87 Some effort has gone into qualitative assessment of the skills necessary for specialisation accreditation,88 but there has been little work on any methodologies by which assessment of emotional intelligence might be accomplished. 84 ibid, p 156. ‘It is inevitable however, that the definition and implementation of quality standards is contingent and partial. It will be difficult to define and articulate an all encompassing and assessable definition of professional competence.’ Note also that Sommerlad’s 1995 survey of 20 West and North Yorkshire practitioners confirmed their view that managerialism and the quality movement was but another way for the profession to lose its autonomy. See Sommerlad, op cit, n 46, p 181. 85 Secondary indicators of quality have other problems also. A practitioner who becomes comfortable in complying with such measures – ticking them off, as it were – can slip into a culture of minimalism and lose the benefit of their incentive to perform competently. 86 Christine Parker, Just Lawyers, OUP, Oxford, 1999, p 19 makes the point that the impact of Rule 15 of the LSE&W Rules – the ‘client care’ rule – to require all firms to have an in-house complaints handling procedure and to inform clients about same early on in the retainer, is not just to help clients, but is also to evidence an overall emphasis on quality control. 87 Marjorie A Silver, ‘Emotional Intelligence and Legal Education’ (1999) 5 Psychology, Public Policy and Law 1173. 88 Video assessment of candidates’ client-interviewing technique is a standard part of the various Australian specialist accreditation regimes.


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A clear exception is the lengthy series of surveys and trials conducted by Cunningham, Maharg and colleagues, who have for several years been investigating the constituent ingredients of an adequate client interview,89 in order to be clear which factors are most important to client satisfaction. They have sought to develop what they describe as a ‘standardized client’ technique90 with the aim of setting an objective standard by which lawyers’ interpersonal performance can be assessed. Their principal technique is similar to the ‘model client’ methodology of Moorhead, Sherr and Paterson and closely mirrors their concern to marry both satisfactory client outcomes with the broad ethical agenda of client satisfaction.91 Cunningham et al seek to apply culture-specific92 ‘standardized’ client profiles to briefings of the pseudo clients, who are required to put the same fact situation to a test group of lawyers in exactly the same way – that is, with identical body language, intonation and content – in the expectation of reliability and validity in comparing their performance on a full range of criteria of interpersonal sensitivity. Cunningham’s approach appears to get beyond the more narrow competence testing of the ‘managerial’ research conducted earlier by Sherr and, but for one circumstance, might therefore get closer to understanding how such interpersonal skills can be incorporated into the assessment of legal ethics. The qualification to this optimism comes from the fact that the role and purpose of Cunningham’s standardised client is and will be known to the student or lawyer being assessed: the secrecy inherent in Sherr’s method will be impossible. Although it is central to the Cunningham methodology that the predictive power of the standardised client has been proven in medicine,93 it is possible that some of Cunningham’s students and new lawyers might hide their true competencies or deficiencies in front of a standardised client. Nevertheless, Cunningham’s comparative methods94 expressly allow for the lack of secrecy and therefore provide what could be one of the first numerical systems to assess an aspect of legal ethics which was previously thought 89 Karen Barton, Clark D Cunningham, Gregory Todd Jones and Paul Maharg, ‘Valuing What Clients Think: Standardized Clients and the Assessment of Communicative Competence’ (2006) 13 Clinical Law Review 1. Such ingredients have been found to include greeting, explaining how the interview will proceed, encouraging disclosure, confirming understanding, identifying key topics, appropriate and systematic questioning, further fact identification, avoiding premature advice, explaining rights and applicable law, identifying fees and legal aid availability, outlining and evaluating openly all options, identifying and appropriate handling of ethical issues, confirming retainer and action plan, establishing and maintaining rapport, listening, avoiding jargon and demonstrating courtesy. 90 ibid. 91 Sherr, et al, op cit, n 66. 92 Participants in the research process have come from Australia, Israel, India and South Africa, as well as the UK and the US. See Barton, et al, op cit, n 89. 93 Barton, et al, op cit, n 89, Abstract. 94 Cunningham and his colleagues used intensively-trained law students who presented standardised client scenarios to other law candidates and then assessed the candidates’ performance, with assessment then compared to law teacher review of the interview videotape. These projects culminated in January 2006 with a graded interviewing exercise that students were required to pass in order eventually to be eligible for a law license. Over 250 students conducted this exercise with standardised clients (SCs), and the SC assessments were analysed and compared with law teachers’ evaluations of the interview videotapes. The results strongly indicated that assessment by SCs was sufficiently valid and reliable to be used for a high-stakes examination in legal education. [ibid]

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intractable to quantitative assessment. If Cunningham’s research methodology is subsequently accepted for general use, it may encourage the development of similar scales to address other less tangible elements such as altruism (perhaps through the number of pro bono hours contributed per week?), civility, and in due course, sensitivity to complex ethical dilemmas.95

4.5.4 Clients’ views about lawyers’ ethics Kilpatrick argues that legal ethics scholarship needs some research into what lawyers and the public see as behaviours that are professionally unacceptable.96 He suggests that the public view is important because there is little point in the profession working on problems that the public think are irrelevant and vice versa. Essentially, Kilpatrick takes a utilitarian view of bad behaviour, where the best arbiter of ethics is the client. But this attitude is deficient to the extent that deciding who ‘the client’ is, is in itself problematic. A Moral Activist might consider their only valid client to be society as a whole and even the Responsible Lawyer will question if their greater obligation is to the court system rather than the litigant sitting in front of them. Who would represent these ‘clients’ in providing feedback on an individual lawyer’s ethics? But even if Zealous Advocacy dominates most lawyers’ thinking and they consider themselves bound to listen to their clients’ views above all else, the attitudes of such people and corporations to many aspects of professionalism are highly coloured by results. The James Hardie case97 demonstrates, if any demonstration is needed, that a powerful corporate client will expect, even demand, favourable outcomes regardless of the ethical corners which their lawyers might cut to achieve them. There is also some difficulty with client understanding of legal process, at least among the mass of retail clients; so-called single shot players who have no real background in law and little understanding of its inadequacies. De Groot refers to Schon’s point that in measuring performance, such clients are of limited help because of their relative inability ‘to determine if legitimate expectations have been met’.98 Certainly, there is no shortage of published comment on issues of failure to communicate, overcharging, delay, negligence and rudeness,99 though much of this research is not attenuated or discounted for the effects of case outcome, client mental illness, tactical advantage in bill negotiations, illiteracy or 95 Cunningham states that ‘standardised clients can be trained to present situations that call for both effective communication skills and nuanced ethical judgment’. See Clark Cunningham, ‘Legal Education After Law School: Lessons from Scotland and England’, (2005) 33 Fordham Urban Law Journal 193, 208. 96 Dean Kilpatrick, ‘Professionalism from A Social Science Perspective’, (2001) 52 South Carolina Law Review 473. 97 New South Wales, Special Commission of Inquiry into the Medical Research and Compensation Foundation, Report, 2004, see Chapter 2, n 15. A succinct history of the James Hardie affair, up until the appointment of David Jackson QC to investigate the matter, may be viewed in the Australian Parliamentary Library at <www.aph.gov.au/library/pubs/rn/2004–05/05rn12.htm> at 22 November 2005; Marcus Priest, ‘ASIC Seeks Bans for Hardie Asbestos Directors’, The Australian Financial Review, Sydney, 16 February 2007, 1. 98 John De Groot, ‘Lawyer Competence and Professionalism’ in Producing a Competent Lawyer: Alternatives Available, Sydney, Centre for Legal Education, (1995) 15, 33, referring to DA Schon, The Reflective Practitioner: How Professionals Think in Action, Basic Books, New York, 1983, p 293. 99 See Chapter 2, n 32.


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client inattention. Further, even when it is important to know clients’ views, the requirement for client privacy often gets in the way. Nevertheless, Kilpatrick is probably correct in his insistence that clients (as consumers) have a right to comment on the behaviour of their lawyers and might be offered a pro forma opportunity to do so in an initial letter to clients, probably as a part of the pre-retainer cost information process now mandated in most Australian jurisdictions.100 Sherr et al, who have exhaustively explored ‘consumer’ client satisfaction as an expression of client accountability, would probably concede that such satisfaction is of limited use in its relationship to ethics assessment because most of these clients will not know enough of their lawyers’ elementary qualities such as truthfulness, respect for justice, capacity for complex ethical judgment or attitude to social responsibility. Corporate and other business clients have real capacity to comment on their lawyers’ ethics because, as discussed later, their sophistication and repeat-player status offers them a powerful vantage point. But their interest in outcomes over process may be just as real as that of retail clients and as a group, they cannot therefore be automatically enlisted for ethics assessment. Although some clients obviously want a lawyer to achieve an outcome regardless of ‘ethical nicety’, all want their lawyers to be good interviewers and communicators, to be prompt and to be efficient in their file handling. There is therefore a need to recognise that all categories of clients may demand one standard of ethics for their lawyer–client interaction while passively tolerating another in efforts to dominate the opposition. As previously discussed, Cunningham et al have determined that clients, through the ‘standardised client’ protocol, are in a position to comment fairly and validly upon certain communication aspects of lawyers’ behaviour.101 Kilpatrick might agree that Cunningham’s protocol provides a more focused accountability mechanism for communication skill compliance because their process allows for bias arising from adverse case outcomes and privacy issues.102 But Kilpatrick’s major contribution on this issue is his observation that behavioural improvement will not occur (from a sociological point of view), unless there are reasonably certain adverse consequences for lawyers from bad behaviour and attitudes.103 Innovative regulation is needed to reinforce ethics assessment.

4.6 Institutional structures in support of individuals’ ethics: Regulation of incorporated legal practices There is a great deal of scope to improve individuals’ ethical decision-making by placing structures around them that encourage careful reflection in ticklish 100 For example, see cost information provisions at the National Legal Profession Model Laws Project, Chapter 2, n 105. 101 Cunningham, op cit. 102 Kilpatrick, op cit, n 96, p 475 – ‘kind words, guns, carrots and sticks’. 103 ibid, p 476.

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situations. Some think that those structures could be more important than the autonomy of the individuals inside them. In fact, it is unnecessary to position either institutional structures or personal choice as more important to behavioural improvement, but since those structures and institutions must operate reflectively and transparently as institutions if the professionals within them are to retain an ethical priority,104 institutional ethics must exist to support individuals. Otherwise, ‘only the most heroic individuals can actively concern themselves with the ethical issues raised by their work. Professionalism requires attention to the ethical status of those institutions.’105 Reference has already been made to improvements in law firms’ ‘ethical infrastructure’106 as a contribution to the organisational structures which are needed to support individual ethical decisions. Notably, these include notions of the Incorporated Legal Practice (ILP) as an entity accepting disciplinary and even criminal responsibility for its actions107 as well as a range of regulator initiatives including the Australian ‘10 commandments’ for ILPs ethical performance.108 But there is another powerful institutional pressure point that is being applied to support lawyers’ individual efforts to be ethical: insurers’ risk management.

4.7 The credibility of legal risk management Risk management is becoming a favourite of regulatory innovation throughout developed legal systems because of its peculiar ability to link financial risk and behaviour in a manner that law firms cannot ignore. The emphasis inside risk management is the clear, collective articulation of the financial consequences of malpractice (negligence) in such a way as to require firms to emplace structures that try to control it.109 And there is good reason for this emphasis on transparency and collective decision-making around risky areas: The risk management perspective points to . . . Milton Regan’s extraordinary account of the John Gellene case, [see n 46, Chapter 2, referring to a law firm partner] convicted of perjury for failing to disclose the firm’s relationship with a creditor that might have prompted conflict objections to its representation of the debtor . . . Gellene was the classic ‘lone wolf.’ He was a solitary operator, given to ignoring firm rules (and even Bar rules) in accordance with his own judgment of their importance and legitimacy. 104 See further, William H Simon, ‘Past, Present and Future of Legal Ethics: Three Comments for David Luban’, (2008) 93 Cornell Law Review, pp 1374–5. 105 ibid, p 12. 106 Christine Parker, Tahlia Gordon and Steve Mark, Research Report: Assessing the Impact of ManagementBased Regulation on NSW Incorporated Legal Practices, 2008, Office of the NSW Legal Services Commissioner, Sydney. 107 The traditional focus on individual lawyers’ disciplinary responsibility, rather than that of the law firm as whole, is discussed in John Briton and Scott McLean, ‘Incorporated Legal Practices: Dragging the Regulation of the Legal Profession into the Modern Era’, (2008) 11 Legal Ethics, 242. 108 Parker, et al, op cit, n 106. 109 See William H Simon, ‘The Ethics Teacher’s Bittersweet Revenge: Virtue and Risk Management’, (2005– 2006) 94 Geo. L.J. 1985, at 1990, citing Milton C Regan Jr, Eat What You Kill: The Fall of a Wall Street Lawyer, The University of Michigan Press, Ann Arbor, 2004.


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He tended to work on his own schedule, often without assistance. He made critical professional responsibility decisions, including the ones that led to his perjury conviction, in private without discussing the issues with his partners.’ In Regan’s view, firms tend to attract and engender lone wolves by embracing the ‘tournament culture’ associated with up-or-out, promotion-to-partner practices. High-risk, high-reward structures and fierce competition encourage aggressive, risky attitudes toward compliance. And the loose, virtually anarchic organization of the traditional firm leaves the organization vulnerable to such behavior. Much of the book reads like a cautionary tale about the importance of risk management.110 [emphasis added]

Risk management regimes – whether they are based on reducing malpractice (or negligence) claims histories through internal law firm programs; on case management software which attempts to automate the asking of crucial client questions; on general quality assurance (transaction criteria) certification; on legal aid firm ‘quality marks’ and similar schemes and even on testing for a lawyers’ psychological willingness to obtain group or peer feedback on their day-to-day work – are highly likely to be at least partially successful in reducing indemnity insurance claims. Although this effect has not been researched across all law firms111 or demonstrated in individual firms, any data (if it exists) is apparently piecemeal and impossible to peruse because its release would involve possible exposure of the claims histories of some of the larger and more influential law firms.112 But even if there is no published summative data to show a link between PI claim histories and practitioners’ disciplinary histories,113 the authors of the 2002 edition of the Australian Streeton Report114 ‘ . . . are quite sure that by taking effective risk management steps, the profession will achieve far more than just reducing claims.’115 North, an author of the Streeton Report and consultant advising the profession on these matters, maintains that, in general terms, risk management regimes instituted in large law firms have reduced the number of professional indemnity insurance claims.116 Regan is also convinced that risk management acts as an antidote to the ever present challenge of ‘situationism’, that is, the power of immediate 110 ibid, p 1989. 111 Personal communication with Susan Saab Fortney, 25 May 2009. 112 Personal communication with Ronwyn North, consultant and principal of Streeton Consulting Pty Ltd, NSW, 10 October 2005. 113 Streeton Consulting, Managing Client Expectations and Professional Risk: A Unique Insight into Professional Negligence Exposure in the Australian Legal Profession (Streeton Report), LawCover, Sydney, 2002, p 20. The Streeton Report was completed for LawCover by Streeton Consulting Pty Ltd. The Victorian Legal Practitioners Liability Committee, which benefited from the insights of the Streeton investigation and has achieved, if anything, an even better claims record in Victoria, advises that no research has been published concerning the issue of large law firm claims reduction and risk management in Victoria. Personal communication with Heather Hibberd, Senior Risk Manager, Legal Practitioners’ Liability Committee, Victoria, 10 October 2005. 114 In October 1994, Blake Dawson Waldron Legal Management Consultancy Services was appointed by the Board of LawCover Pty Limited, (LawCover) a subsidiary of The Law Society, to design and develop its Risk Management Education Program. This followed the acceptance of certain recommendations contained in the Streeton Report. The report was based on a large-scale statistical analysis of claims experience and recommended that Risk Management Education modules be designed and delivered across New South Wales. See Streeton Report, ‘Preface to Third Printing’, February 2002. 115 ibid, p 64. Apart from claims reduction, the Streeton Report claimed that risk management improves the quality of legal services, community perceptions of what the profession can deliver and ‘credibility and professionalism as hallmarks of legal vocation.’ 116 North, op cit, n 112.

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circumstances to influence decisions, and their potential to overwhelm (virtuous) character as the proper decider in ethically difficult cases.117 On the judgments of both consultants and academic observers, attention to risk management – which necessarily involves ongoing monitoring and review of the management process – leads to lower levels of incompetence and there is no reason why it is not also helping to support legal ethics. Risk management throws some light on the process of situational darkness and can permit an individual’s personal character to gain the upper hand by pointing again and again to the bottom line pressure on professional indemnity premiums, if not to the possible denial of malpractice cover in extreme cases. The centralising pressures of risk management which compel more scrutiny of contentious decisions inside law firms will challenge the centrifugal, short-term and highly situational pressure on all fee earners to secretively cut deals and corners, to compete internally for work, to privately close their eyes to ethical conflict, to regard ethical sensitivity as a sign of psychological weakness and to accept the very risks that their managers would prefer they avoid.118 And yet a further qualification to the utility of risk management now arises. Risk management concepts can be imported into techniques to enhance ethics’ decision-making but can never replace the importance of a lawyer’s character in making those decisions. Even when risk management principles dilute the claustrophobic pressure of ‘the situation’ on good decision-making, those principles will involve some active compliance with rules laid down by a regulator,119 whether those rules are described merely as ‘guidelines’ or not. But rule compliance is functionally impossible without character, as Regan reminds us: One reason that character still matters in a risk management regime is that any system of rules, no matter how comprehensive, still leaves occasions calling for discretion. Determining when a rule applies, what features of the situation are salient to its application, and how it should be reconciled with other arguably relevant rules requires judgment that itself is not reducible to following a set of rules. How one engages in this process will be shaped to some degree by the dispositions, attitudes, and motives one brings to the task.120

Inevitably therefore, all institutional structures which are intended to support character-based decision-making in law firms will be able to provide that support, but can never supplant the need for discretion and judgment that comes from an assessment of an individual’s character; specifically, of their understanding of ethical types and their capacity and courage for virtue-based decision-making. Even if risk managers and regulators are persuaded that ethics assessment of 117 Milton C Regan, ‘Risky Business’, (2005–06) 94 Geo. L.J., 1963. See also Sung Hui Kim, ‘The Banality of Fraud: Situating the In-house Counsel as Gatekeeper’, (2005–06) 74 Fordham L. Rev. 983 which illustrates that the situational environment often determines how in-house counsel behave. 118 William H Simon, ‘The Ethics Teacher’s Bittersweet Revenge: Virtue and Risk Management’, (2005– 2006) 94 Geo. L.J. 1985, pp 1990–1. 119 An on-line ethics’ ‘audit’ program conducted by the Queensland Legal Services Commissioner (at <www. lsc.qld.gov.au/241.htm>, at 12 May 2009) is providing just that service to firms, even though its primary objective is to limit the risk of misconduct. See also Briton and McLean, Chapter 2, n 69. 120 Regan, op cit, n 117, p 1966.


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individual character per se is feasible and characterise it simply as another tool of their management repertoire, the primary purpose of ethics assessment is to support the inherent professionalism of lawyers. A final mechanism designed to improve lawyers’ general performance is post-admission training. Law societies and lawyers themselves are generally convinced that such post-admission education and training does improve performance, and while continuing education strategies are seen as increasingly important to keep lawyers up to date in their technical knowledge, their role in improving ethical behaviour has until very recently been neglected in comparison.

4.8 Post-admission training in competence and ethics: Not making enough progress Researchers recognise the interconnection of competence and ethics by choosing to measure competence in ways that consistently embrace and intrude upon hybrid concepts such as ‘satisfaction’, ‘effectiveness’, ‘skills’ and particularly ‘excellence’. Thus, while clients’ ‘satisfaction’ about adequate performance is encouraging, findings by researchers that lawyers’ competence is generally satisfactory are also based on levels of acceptable incompetence which seem far too high. Confidence about the effectiveness of post-admission training might be well-based, but the empirical evidence does not yet support it. Sherr’s 1994 UK study reluctantly accepted a 25% incompetence level in the cases he analysed.121 Moorhead’s 2000 study found an astoundingly high 40% incompetence level122 and Moorhead and Sherr found in 2002 that 60% of specialists were inclined to hold onto work (presumably, knowing this) in which they were not specialising.123 Also, a 1991 Australian study of legal employers found that half that group observed only moderate levels of competence.124 What of efforts to improve competence and ethics through formal and assessable legal education? Formal assessment of doctrine and professional responsibility is central to law schools’ missions, but there has been ongoing anxiety about the teaching of professional responsibility, where students’ general performance was often seen to be even less inspiring than their often laborious acquisition of 121 Sherr, et al, op cit, n 64. 122 Richard Moorhead, Avrom Sherr and Alan Paterson, ‘What Clients Know: Client Perspectives and Legal Competence’ (2003) 10 International Journal of the Legal Profession 5, 17. 123 Richard Moorhead and Avrom Sherr, ‘An Anatomy of Access: Evaluating Entry, Initial Advice and Signposting Using Model Clients’, Report to Legal Services Commission, 4 December 2002. See <www.lsrc. org.uk/publications/modelclientpaper.pdf> at 20 October 2005. 124 The 1991 MSJ Keys Young survey for the NSW Law Society’s Legal Education Task Force compared in part the level of skill expected by the profession with the levels actually observed: 73.6% of law firm employers expected competence in the high to very high range but only 40.9% observed such levels. Nearly half the employers observed moderate levels of competence and 8.7% observed low levels. Keys Young, ‘Survey of New South Wales Solicitors’, Law Society of New South Wales, Legal Education Task Force, (1991) University of Technology Sydney, Centre for Legal Education Collection, QKL147.N.8 MSJK 1990 0072; Geoff Monahan, ‘Surveying Our Consumers’, Australasian Professional Legal Education Conference, 1994, Auckland, New Zealand.

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technical skills. As discussed in Chapter 2, the US response to the 1972 Watergate scandal provoked many initiatives to try to improve lawyers’ professional responsibility and knowledge of wider systems of ethics,125 but these were not always sustained. The National Conference of Bar Examiners (NCBE) began developing a ‘performance test’126 after the release of the MacCrate Report127 in 1991, which had recommended a national emphasis on skills and values education in US law schools as an antidote to perceived continuing poor performance in both areas. Designed to test the MacCrate conception of skills only, the NCBE initiative was followed by the Conference of Chief Justices’ National Action Plan on Lawyer Conduct and Professionalism in 1999.128 Significantly, this report ‘established the lineage between professionalism and performance testing’,129 although the performance test did not assess the MacCrate values and the test was ‘not expected to develop in that direction’,130 preferring to concentrate on skills measurement. Other organisations are also involved. The American Bar Association Section of Legal Education and Admissions to the Bar, the American Association of Law Schools, the National Council of Bar Examiners and the National Conference of Chief Justices are all concerned that American legal education is not preparing students adequately for ethical legal practice, but their efforts at concerted action have yet to bear fruit.131 The US Carnegie Report132 generated much comment and admiration for its advocacy of system-wide improvements to the teaching legal ethics, but these improvements still seem to elude formal US legal education. At the most, while notable institutions have adopted specific and comprehensive initiatives in clinical legal education and ‘professionalism’ courses, the individual autonomy of all law schools is such that single institutions can get away with very little if they wish to do so. Some further initiatives are also occurring, but the immense complexities of the US constitutional and cultural mix make it very difficult to determine what 125 Arnold Rochvarg, ‘Enron, Watergate and the Regulation of the Legal Profession’, (2004) 43 Washburn LJ n 92. 126 Margaret Corneille, ‘Bar Admissions: New Opportunities to Enhance Professionalism’, (2001) 52 South Carolina Law Review 609. 127 In 1992, Robert MacCrate of the New York firm Sullivan & Cromwell, chaired a major committee of the American Bar Association in an effort to address a perceived decline in lawyers’ ethics via law school curricula. MacCrate’s report was broadly designed to ensure that US law schools redirected themselves to properly preparing students for practice by achieving ten ‘professional skills’ and four ‘professional values’, including justice, fairness and morality. However, there is still a degree of ambivalence as to whether US law schools have actually decided to adopt the central tenet of thorough practice preparation. See American Bar Association (ABA), Legal Education and Professional Development: Report of the Task Force on Law Schools and the Profession, American Bar Association, Chicago, 1992 (The MacCrate Report); Russell Engler, ‘The MacCrate Report Turns 10: Assessing Its Impact and Identifying Gaps We Should Seek to Narrow’ (2001) 8 Clinical Law Review 109. 128 See at 10 December 2006. 129 Corneille, op cit, n 126, p 613. 130 ibid, p 614. 131 Stuckey, op cit, n 61. Uniform quality assurance standards have not been implemented across the US and the concept has had little impact. See Berenson, op cit, n 48. 132 William M Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond and Lee S Shulman, Educating Lawyers: Preparation for the Profession of Law, The Carnegie Foundation for the Advancement of Teaching, Jossey-Bass, San Francisco, 2007.


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might be working. The United States Law Schools Admission Committee (LSAC) supports a project to identify predictors of success in law schools and in law practice and is researching tests that it is hoped will predict up to 26 factors that have already been identified as constituting lawyer effectiveness.133 These factors, which include ‘Integrity and Honesty’, ‘Community Involvement and Service’, ‘Providing Advice and Counsel and Building Relationships with Clients’ and the ‘Ability to See the World Through the Eyes of Others’, closely mirror the ethical issues identified in earlier chapters, but to date they have not been included in the Law Schools Admission Test (LSAT), the national law school admission examination used almost uniformly throughout the United States.134 Even if a majority of these proposals and programs were to be successfully implemented in the United States, they would be occurring only at or prior to admission to practice. This approach is clearly insufficient to ensure that legal ethics are maintained and developed over time, because experience alone is a fickle teacher. There is UK research, again from Sherr, who studied 143 videorecorded interviews of new clients to explore the relationship between experience and competence.135 His research questions included: Is experience alone necessarily a good teacher? Can experience be sufficient, without training, for picking up legal skills? Sherr found that experience seemed to enhance competence in a few areas only, but certainly not in the key bridging area between competence and ethics – interviewing ability.136 While practitioners felt that they performed much better with experience, their clients and expert assessors (blind to the hypothesis actually under test) could not generally tell who was experienced and who was not. Further, and of the utmost concern, no discernible improvement in interviewing competence was evident across groups differentiated by the period-since-admission. Sherr’s conclusion was that training which allowed reflection on interviewing practice may be necessary if accumulating experience is to benefit competence. The questions then are: What is the appropriate time interval for such training and how is the benefit of training to be maximised?137 The conventional if unproven wisdom has been that experience progressively remedies all early inadequacies in workplace performance. However, Sherr believed it likely that careful supervision and monitoring of new lawyers’ experience in interviewing 133 Stuckey, op cit, n 61, p 144. The 26 factors are Problem Solving, Practical Judgment, Passion and Engagement, Analysis and Reasoning, Creativity/Innovation, Integrity and Honesty, Writing, Community Involvement and Service, Providing Advice and Counsel and Building Relationships with Clients, Organizing and Managing One’s Own Work, Finding and Using Facts, Self Development, Researching the Law, Speaking, Ability to See the World Through the Eyes of Others, Strategic Planning, Networking and Business Development, Stress Management, Listening, Influencing and Advocating, Questioning/Interviewing, Negotiation Skills, Diligence, Organizing and Managing Others, Evaluation, Development and Mentoring, and Developing Relationships Within the Legal Profession. 134 The LSAC project, upon which Prof Marjorie Schultz of the University of California at Berkeley is working, is incomplete. Preliminary results of her work are reported at Marjorie M Schultz and Sheldon Zedeck, Identification and Development of Predictors for Successful Lawyering, (2003) SALT Equalizer 5, <www. saltlaw.org/EQ-Nov2003.pdf> at 10 December 2006. 135 Avrom Sherr, ‘The Value of Experience in Legal Competence’ (2000) 7 International Journal of the Legal Profession 95. 136 ibid, p 112. 137 ibid, p 113.

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was likely to be necessary, ‘if the full value of experience is to be gained.’138 In effect, he supports the notion that skills training (and assessment), are continuing needs after admission. This UK research indicates that it is unwise to rely on the legal workplace alone to improve anything as time goes by. There is some hopeful US effort at improving lawyers’ performance which goes beyond the admission phase and recognises the inadequacy of untutored exposure to legal practice in developing ethical behaviour. The United States Clinical Legal Education Association (CLEA) has auspiced a ‘Best Practices Project’ to progressively define best practices for preparing lawyers for practice.139 The project is perhaps the most holistic effort to reform the examination of pre- and post-admission legal education since the MacCrate Report. Although CLEA has no formal status to determine either law school curricula or bar admission policy, its open enquiry appears to be motivating continued interest in the admittedly long-term task of influencing both agendas. Chair of the Steering Committee, Roy Stuckey, does not think that his committee will be able to realistically influence the whole of the process of becoming a lawyer,140 but is concerned to raise as an issue the need for supervised practice of new graduates. Stuckey observes that ‘we should . . . end our practice of giving new lawyers unrestricted licenses to practice law.’141 In order to provide the supervision that must accompany a conditional or restricted ‘licence’, Stuckey has suggested either staged admission, with initial licences limited to certain types of legal work, followed by a right to undertake other types of work only after a period of time in practice and further assessment, or an assessment-monitored ‘articles of clerkship’ scheme,142 similar to the UK training contract and the model increasingly popular in Australia.143 The important point here is that, whichever of these options is preferred, the CLEA research project has recognised that training without measurement is pointless and has prioritised post-admission assessment, at least for competence. This is clearly necessary, given the findings of lawyers’ less than impressive competence in the United Kingdom. The United Kingdom was not strongly in favour of further assessment after the completion of tertiary legal qualifications, but major change is imminent and will confirm the importance of post-admission assessment of lawyering skills. The Law Society of England and Wales commenced a Training Framework Review144 (TFR) in 2001 and had contemplated removal of the postgraduate Legal Practice Course (LPC) altogether, substituting an ‘outcomes’ test which would focus only 138 ibid. 139 Stuckey, op cit, n 61, p 145. 140 ibid, p 144. 141 ibid, p 147. 142 ibid, pp 146–7. 143 See, for example, Susan Campbell, Review of Legal Education Report: Pre-Admission and Continuing Legal Education, Department of Justice, Victoria, (2006), 9. This proposal was adopted in Victoria on 1 July 2008. 144 Training Framework Review: See <www.lawsociety.org.uk/becomingasolicitor/furtherinformation. law> at 10 December 2006.


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on whether a graduate had all the skills necessary for admission. The Law Society’s original motivation for the TFR was to increase diversity in the profession by encouraging minority groups to enter practice. Abolition of professional qualifications in favour of case-by-case appraisal of an individual’s experience and general qualifications, followed by the ‘outcomes’ test, was intended to increase the chances of an ethnically diverse profession. This objective cannot be faulted, but there had always been concern that more diverse admission rules might also lower performance standards.145 In the event, with the takeover from the Law Society of responsibility for post-admission training by the Solicitors Regulation Authority, students will be required to complete the LPC as from September 2010.146 The priority of professional conduct is, if anything, stronger in the newly designed LPC: 3.28 Because of its importance in solicitors’ vocational training Professional Conduct and Regulation is the first area to be dealt with in the LPC Outcomes. Professional conduct and ethics are intended to be pervasive, impacting on all aspects of the design, delivery and content of the course.147

In designing assessment of professional conduct and regulation, LPC providers are required to assess these areas in two ways: • A discrete assessment which must last for a minimum of two hours and which should normally be taken during the final assessment period of Stage 1 of the course. • An assessment within each of the three core practice assessments in which at least 5% of the marks must be allocated to Professional Conduct and Regulation. The marks are not to be aggregated: a student must pass the discrete assessment in Professional Conduct and Regulation in order to pass the subject.148

While these statements are positive and encouraging, they still betray a lack of awareness of the importance of legal ethics beyond conduct rules. The LPC Outcomes standard makes this problem plain, as follows: By the end of Stage 1, a successful student should be familiar with the Solicitors’ Code of Conduct affecting the conduct of work likely to be encountered by trainees including: 1. the core duties of solicitors . . . ; 2. acting only when competent to do so; 3. principles and practices of good client relations, client care and information about cost; 4. conflicts of interest; 5. client confidentiality and disclosure; 6. professional undertakings; 7. the solicitor and the court; 8. avoiding discrimination and promoting equality and diversity. [and] By the end of Stage 1, a successful student should understand the organisation, regulation and ethics of the profession . . . .149 [emphasis added] 145 See, for example, J Webb and M Maugham with W Purcell, ‘Review of the Training Contract and Work Based Learning’, (2004) pp 64–5, at <www.lawsociety.org.uk/becomingasolicitor/furtherinformation.law w.lassoc.org.uk> at 10 December 2006. 146 Solicitors Regulation Authority, Information for Providers of Legal Practice Courses, at <www.sra.org. uk/documents/students/lpc/info-pack.pdf> at 12 May 2009. 147 ibid, para 3.28. 148 ibid, para 4.6. 149 Solicitors Regulation Authority, Legal Practice Course Outcomes, p 2, at <www.sra.org.uk/ securedownload/file/355> at 12 May 2009.

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The ‘ethics of the profession’ are not further mentioned. While knowledge of conduct rules is obviously essential and it is an advance that such knowledge will be clearly assessable, this requirement is imposed on LPC providers against a background which still does not require any normative study of legal ethics in the academic phase of legal education.150 It remains perfectly possible for a new UK legal practitioner to know nothing about, for example, the moral gaps and complexities of information barriers, or the likely pressures they will encounter in dealing with excessive client demands in the context of Item 7 (above) ‘the solicitor and the court’. As such, the United Kingdom’s efforts to deal with education and training in legal ethics, along with those of the United States (for different reasons), remain patently inadequate to an understanding of the complexities of legal ethics. Not enough progress has been made.

4.9 The need for practitioner opinion If commercialism dominates some areas of legal practice it need not do so to the exclusion of ethical awareness, providing that awareness is assessed and lawyers are in some way accountable for their ethical sensitivity in a similar manner to that of their competence. In all of the research efforts surrounding legal ethics to date, the implicit focus has been to develop enough empirical knowledge to allow realistic changes which might improve or enrich professional behaviour. Yet the research effort, though tinged with a concern for clients and wider ethical factors, has rarely targeted these concerns in any rigorous way. Compared to their investment in understanding and assessing aspects of competence, academic researchers, the profession and government agencies have expended too little attention or funding on structural improvements to the broader ethical aspects of legal professional behaviour, particularly those issues which might formerly have been thought merely subjective or irrelevant.151 It is hardly surprising that the improvement and assessment of competence has proved politically acceptable as a research area, given the longstanding importance to corporate clients (and to ‘law as a business’) of technical proficiency. And although academic insight and law society comment has been prolific in the ethical arenas beyond competence, little empirical investigation has been attempted. If however, there is any lesson from increasingly bitter experience in 150 Economides and Rogers, op cit, Chapter 1, n 44, p x. 151 Ray Finkelstein, ‘Decision-Making in a Vacuum?’ (2003) 29 Monash U.L. Rev 11, 17. Justice Finkelstein commented that ‘judges views of morality as well as their background and beliefs, sympathies and antipathies cannot help but underline at least some aspects of the decision-making process and, in some cases, all aspects. This is so whether the particular judge acknowledges it. There are some self-proclaimed formalists who believe it is possible to divorce their personal views and values from their decisions. Although they may genuinely believe this, I doubt its truth. No theory of decision-making can approximate what judges actually do without taking into account the subjective elements of the decision-making process. Although formal rules may constitute the bedrock part of our legal system, the creative input of the decision-maker cannot be denied.’


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recent years of some lawyers’ limited perspectives and truly staggering corporate failure, it is that both incompetence and unethical behaviour require systematic attention across all sectors of the organised professions, including the law societies and bar associations of market economies. Regulators will often choose to insert themselves into the equation,152 but their efforts can be less nuanced and clumsy in comparison to lawyers themselves, should they decide to go on the front foot. In the next chapter, an explanation is provided of the research methodology that has been used to examine legal ethics questions within an easily identifiable segment of the profession – accredited specialists – working and practising in the Melbourne metropolitan area. This investigation was necessary not just to provide an empirical base for this book, but also to anchor any recommendations in practicality. Thus, if professional leaders and writers were to agree that, for example, an altruistic commitment to social responsibility is an important ethical quality or attribute, a subsequent empirical finding that pro bono concerns do not rate uniformly highly with the profession itself, would stand in the way of recommendations which attempt to mandate pro bono behaviour. This is not to say that principled recommendations which are not supported by practitioners are pointless, but rather, lawyers’ reactions ought to be considered so that any proposed changes to professional norms are structured carefully in the interests of maximising the potential for securing as much cooperation as possible from the lawyers most affected. 152 Of course, regulators might tend to regard ethical monitoring as really only a tool of regulation. This might reflect some regulators’ views that ‘aspiration’ is pointless, or just another method of encouraging people to behave in certain ways.

5 Discovering practitioners’ opinions about ethics assessment and psychological testing for integrity

5.1 Why consider practitioners’ views? Since reported cases and empirical studies broadly concur that lawyers’ ethics are not only deficient but also under judicial and regulatory challenge, it is sensible for the profession to seek out ways and means to remotivate lawyers to improve behaviours without more costly external intervention. At present, friendly interests in the form of indemnity insurers, some of whom are highly influenced by and sympathetic to the profession, are exploring risk management protocols to reduce the risks of negligence, but are also beginning to see in the ‘ethical infrastructure’ movement an opportunity for further risk reduction. And some innovative complaints handlers in Australia, also sympathetic to efforts to enhance professionalism,1 are developing structural protocols to reduce ethical misadventure among incorporated legal practices. These initiatives will assist, but they are necessarily focused on overarching infrastructure and procedures which, as discussed in the previous chapter, may not necessarily impact directly on individual lawyers. Efforts to improve individual lawyers’ ethical stance have been left to law schools, though not to any great effect. Many jurisdictions still only encourage rather than require ethics education within law schools2 and, if they require continuing legal education post-admission, do not require that it be assessed. In the narrow window between graduation from law school and admission there 1 In the research described in this chapter frequent use is made of the term ‘professionalism’. In most cases, this term is intended to be synonymous with ‘ethics’, unless the context requires otherwise. 2 Economides and Rogers provide a brief survey of major jurisdictions’ requirements in relation to undergraduate legal ethics’ education. See Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’, Section 3: The Challenge of Ethical Assessment, The Law Society of England and Wales, February 2009, unpublished.

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PRACTITIONERS’ OPINIONS

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is often instruction in conduct rules, but the emphasis is on memory rather than integrating the ethical principles beneath the rules into best legal practices. In those countries, states and provinces where law school ethics education and some post-admission training is compulsory, that education has yet to translate into downward trends in client complaints or quantifiably better attitudes among practising lawyers.3 The evidence is compelling that the influence of the earlyyear practising environment upon new lawyers is just too powerful; which is no surprise given that in many places the importance attached to legal ethics fades passively away just as those new lawyers begin to be immersed in practice cultures. The need for better pre-admission ethics education will always be there, but if there are to be further useful improvements to lawyers’ individual approaches to ethics then that education must continue post-admission and become assessable; and other qualities apart from knowledge of conduct rules must be assessed and assessment techniques must expand. The justifications for assessing lawyers’ ethics and some possible methods for doing so have been discussed earlier. But the case for that assessment also depends on having some idea of how ethics assessment might be received by those most affected. Policy makers need to know what experienced lawyers think about various means of assessing lawyers’ ethics: not just if a particular method might ‘work’ sufficiently well, but whether that method is in the opinion of those ‘on the ground’, practically and politically feasible. Such opinions are not of course determinative of whether a particular approach to assessment ought to be implemented, but provide a useful guide nevertheless. Legal practitioners’ ethical performance is still a matter of mystery. No largescale behavioural studies are in existence which might assist either the profession or regulators to fully understand which ethical qualities are evident and which are lacking. Individually thorough, though unconnected, studies have tried to assess competence and some aspects of ethical functionality among certain groups of lawyers, but there is no overall quantitative/qualitative performance assessment available of this key profession in common law democratic systems. Different jurisdictions have different jurisprudential cultures and different sub-groups of lawyers who practise in different areas of law with different clientele. They will all have divergent views about specific methods of assessing legal ethics. For example some specialist tax lawyers might be very cautious about any assessment method which involves a rating of their honesty or integrity, but a conveyancer may think such a rating is uncontroversial. Similarly, a litigation lawyer could consider their clients’ opinions about their ethics to be quite unreliable and therefore irrelevant to an overall assessment of their ethics because of the potential for bias arising from a dependence on litigation outcomes. Wills and estates lawyers might only rarely be concerned about negative client opinions. 3 Adrian Evans and Josephine Palermo ‘Zero Impact: Are Law Students’ Values Affected by Law School?’ (2005) 8(2) Legal Ethics, Chapter 1, n 37.

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But there will still be some common ground justifying generalisations from local studies that are unconcerned with the peculiarities of different areas of practice. In the chapters to follow new, specific empirical information about the perceptions of a representative group of lawyers – accredited specialists practising in Melbourne, Australia – is examined for its contribution to the policy debate. These specialists had all been in legal practice for at least five years, many for far longer, and had undergone rigorous examinations of their competence in their chosen specialisms. In order to ensure as far as possible that the proposals of this book are realistic, their opinions were gathered according to the following methodology and recorded in relation to a number of ethical issues. Drawing on the insights of the literature and prior studies examined in earlier chapters, a concise list of the concepts involved in legal ethics was developed. This list was put before a small number of legal professional leaders in Melbourne and used to tease out variations in opinion and approach the levels of complexity that might be useful to explore in the larger study. The results of that investigation were then used to develop and refine an assessment instrument for use with the main, qualitative research cohort of specialists practising in the greater Melbourne metropolitan area (the Melbourne Study), chosen randomly from the list of current accredited specialists practising in that area. Interviews were conducted between late 2004 and early 2005. Both groups participated in recorded interviews which allowed detailed exploration of relevant themes, sufficient – because of that detail – to emulate the results that might have been available from a larger quantitative investigation. A complete description of the research methodology appears in Appendix A. In this chapter, the opinions of these experienced lawyers are set out in two general areas: general attitudes to professionalism, and the possibilities for psychological assessment of honesty and integrity.

5.2 Quantitative ranking of legal professionalism (ethics) issues 5.2.1 Background to ranking process Each interviewee was asked at the beginning of their interview to rank a number of ethical issues from most important to least important. The purpose of the ranking process was to gain a limited quantitative perspective as to the professional priorities of these interviewees and judge whether those priorities broadly agreed or disagreed with those of the eight professional leaders, interviewed earlier.

5.2.2 Opinions of interviewees as to elementary rankings The chart at Figure 5.1 below shows the summed results of the issue-ranking process. Contrary to the first impression made by the following chart and reflecting

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an idiosyncrasy of the coding process, the lowest raw score on the x-axis indicates the issue which interviewees thought most important; that is, ‘Knowledge, Competence and Excellence’ at 56, followed by ‘Honesty, Integrity and Fairness’ at 68, ‘Ethical and Moral Conduct’ at 74 and so on. It is important to note that the highly valued attributes are those of competence and ethics. At 134, ‘Civility to Colleagues and Good Communication Skills’ and at 168 ‘A Sense of Social Responsibility and Altruism’, were considered least important, though arguably still core issues in legal ethics. Respondents’ Views as to Relative Importance of Elements of Professionalism

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5.2.3 Observation and interpretation These rankings closely mirrored the informal opinions of the professional leaders interviewed in the earlier stage of the investigation. The sample is of insufficient size to permit rigorous tests of statistical significance. However, note the general priority ranking by both professional leaders and these experienced practitioners of competence and ethics. This finding strongly supports many of the themes in earlier chapters: that competence and ethics travel together for ‘competent’ lawyers. Paradoxically, despite the many examples of lawyers’ ethical failure

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referred to in earlier chapters, among all the issues so identified, only the first – competence – is currently considered sufficiently important by the profession to be assessed in the post-admission context.

5.2.4 Qualitative analysis of the opinions of interviewees A qualitative approach to analysis is necessarily different to a quantitative investigation. The latter relies on sample design to permit statements about ‘the majority’ or ‘percentage in favour’, etc., where the result can be considered representative of the whole group and not due to chance alone. In the following analysis, terms such as ‘the majority’ are generally avoided because qualitative analysis relies on interpretation or recurring themes rather than sheer numbers of responses. Except in a very few cases, the terminology used contemplates at best a consensus of opinion, where that appears justified by the themes exposed through the coding process. The approach taken to reporting on the analysis is to set out the themes derived from the interviews, according to the areas of interest created within the software during the coding of each interview. Often, the successive coding of new interviews added to and varied existing coding in prior interviews, as thematic associations became clearer. This process produces a richness of information about emergent categories that would otherwise remain unexplored. As explained earlier, summaries of major themes were compiled in ‘tree’ formats and illustrated by relevant quotations from the interviews, followed by observation, interpretation and summative statements to show the full depth to the inter-relationships of interviewee opinions. The analysis of interviewees’ recordings, in response to the questionnaire, yielded seven areas of interest. As was expected, these reflected the specific proposals put to interviewees, but one was a composite, illustrating merged concerns for the future of professionalism. They are referred to as primary themes: Concerns for Professionalism ● Psychological Testing for Honesty and Integrity ● Relevance of Disciplinary History ● Client Rating of Interpersonal Skills and Accountability ● Client File Audits ● Awareness of Values and Ethics as a Contribution to Ethical Behaviour ● Improving Continuing Professional Development ● In this and the following chapters, these seven areas of interest are dissected and discussed under the following sub-headings: background to the issue(s); opinions of interviewees; observation and interpretation on interviewees’ opinions; summaries of interpretation; and where appropriate, advocacy of particular approaches to identified issues. The first of the primary themes emerging from the interviews was the degree to which interviewees were concerned for professionalism; that is, for a set of


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values and attitudes which affirm the close connections between competence and ethical behaviour.

5.3 Practitioners’ concerns for professionalism 5.3.1 Background After the first primary theme of concern for professionalism, secondary themes appear overleaf (Figure 5.2) as a ‘tree’ display, illustrated by specific quotations which summed up interviewees’ opinions eloquently, sometimes bluntly so.

5.3.2 Opinions of interviewees The tree display is an output from the initial NVivo analysis of interviewees’ concerns for professionalism. This tree approach to representing a number of the secondary themes of each primary theme is also used in the following chapters. In this and the succeeding ‘tree’ displays, the grey backgrounded text states the secondary themes which were found to feature most prominently in the interviews in relation to the primary theme. Where a quotation from an interview illustrates a secondary theme or, in some cases, contradicts that sub-theme, it is shown below the relevant grey backgrounded text. The secondary themes and quotations, taken together, are a fair representation of the important issues contained within this and succeeding themes. The tree display is necessary in order to convey fundamental information connected with primary themes in a straightforward manner, before reporting on all opinions of interviewees relevant to primary themes, as follows.

5.3.3 Observations on and interpretation of ‘concerns for professionalism’ ●

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Among those interviewees who considered legal professionalism to be relatively intact, there was a concern to see vastly improved marketing, indeed any marketing, by the Law Institute of Victoria of lawyers’ services and trustworthiness. This view was connected to a belief that younger lawyers’ ethics were improving and may be connected to others’ perceptions of a rise in pro bono activity. Also, these interviewees thought that if their peers simply recognised that they were doing a good job, there would be less need for soul-searching about legal ethics. Preventing and dealing with client complaints was considered to require better communication skills, through more training and better regulation, in the sense of a requirement for clients to speak to their lawyers before they complain to a regulator. The desire for better communication skills is also an ethical issue related to client perceptions that overcharging occurs, that

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CONCERNS FOR PROFESSIONALISM Professionalism is generally satisfactory ‘… the ethics issues have been elevated inside the (Victorian) profession already – the designated ethics liaison process – the [James] Hardies’ and similar issues have brought ethical issues to the fore – our new practice management system has a very complex ethical module to throw up everything possible, whereas 10 years ago people in the biggest firms would not have thought much about it.’ Honesty and integrity are crucial ‘… barristers and solicitors are businessmen more than professionals, they do what they need to do to get the job done. That’s anathema to my idea … you don’t lie to get the job done, but so many people do, they just make it up as they go along, and that’s endemic … just telling bold-faced lies.’ Altruism (pro bono) is common, but … ‘… a positive pro bono record? – irrelevant – I do plenty of pro bono, give free advice on the phone all the time. Who always wins these pro bono awards anyway?, it’s always the ‘xxxx’, that’s a big corporate wank – how do you afford to do all that work anyway?, by charging the shit out of every client we’ve got.’ Dealing with clients is an issue Lack of humility to the courts and civility to other practitioners is a problem but, ‘competence’ decides status Court access is too costly and inequitable ‘[court inaccessibility] should result in a lowering of fees but it doesn’t, all you have is unemployed lawyers. Law generally is not accessible to the ordinary person – my fees are too difficult to afford.’ There are already remedies for lack of professionalism – the courts should take a more active disciplinary role

Figure 5.2: Tree display of concerns for professionalism

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clients’ desires to ‘win’ are dominating questions about competence and therefore complaints, and that clients have not been unknown to require straight communication from their lawyer while also accepting a degree of economy with the truth when their lawyer is representing their interests to an opponent. In the ‘honesty and integrity’ sphere, some practitioners were inclined to want honesty tested in any manner at admission to practice without being clear how this would be done, but others observed that ‘personality controls behaviour’ and expressed doubt that an honesty test at admission would be


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sufficiently cognisant of the effect of the practice environment on issues of honesty and integrity. Overcharging, the fact that clients wish their lawyer to ‘win’ regardless of honesty and the adversarial pressure to litigate-notmediate, were all seen as contributing to ethical corner-cutting. Concerns about lawyers’ personalities were connected in the minds of interviewees to the wider concern with incivility or rudeness at a collegiate level and to the need for some realistic alternative to testing personal qualities only at or prior to admission. Large-firm lawyers’ ethics were thought to be a problem in the perception that large firms’ clients are rarely held to account in tax and criminal law arenas, while smaller clients of smaller firms receive less favourable outcomes at the hands of the courts. The implication from the context was that large-firm lawyers in some way ‘manage’ client outcomes through extra-legal arenas. ‘Soft’ corruption was not mentioned, but the inference was there. At the other end of the scale (and recognising that many interviewees were not sole practitioners), that significant group of lawyers were thought to be an ethical risk and would be less exposed if required to join a supportive peer group as a condition of their practising certificates. The level of honesty and fair dealing between and among partners in all sizes of firms was a concern for some interviewees, who would not elaborate, perhaps because their own practice environments would be implicated. Altruism (expressed as a willingness to do pro bono work) provoked strong reactions, mostly negative. Interviewees felt social and financial4 pressure to work pro bono when they considered that they have done so in any event, without pressure, in some cases for many years. Large firms’ approach to pro bono was generally derided as self-serving. Some thought pro bono deficient but others thought pro bono activity was now a personal rather than professional matter. In other words, interviewees thought that pro bono ought no longer to be an issue of professional ethics, with a reactive undertone present. One interviewee thought the extra time demanded by any move to mandatory pro bono activity would additionally discriminate against women. One theme was that ethics is ‘required’ rather than an innate quality of lawyers, but that case or transactional ‘results’ [that is, competence mixed with whatever else it takes] are the only real determinations of status. This comment is illustrative: Legal professional conduct for me is pretty much all about the quality of an intellectual reasoning process and the capacity to back your judgment – that is really all there is to it – a very limited view – clarity, economy, precision in language and in deductive thinking – I might also see a sense of social responsibility as

4 The Victorian Government requires any law firm that wishes to be eligible to undertake government legal work to commit to perform between 5–15% of pro bono legal work per annum (calculated as a percentage of their fees from government). See ‘More Pro Bono Legal Work for Disadvantaged Victorians’, at <www.justice. vic.gov.au/wps/wcm/connect/DOJ±Internet/Home/About±Us/Media±Room/News±Archive/JUSTICE± -±More±Pro±Bono±Legal±Work±for±Disadvantaged±Victorians±(NEWS)> at 4 January 2010.

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valuable. If a person has all the additional qualities such as those on this list, that’s fabulous, but they are not critical – at the end of the day, we want them to be independent and fearlessly acute, but that’s the only essential stuff.5 ● ●

‘Staying up-to-date’ with changes in the knowledge base was the only real threat to competence, so far as interviewees were concerned. There was a degree of consensus, particularly among older interviewees, as to what might be done about their perceptions of inadequate ethics. Importantly, this consensus was expressed in support for the notion of assessing ethical understanding, of the ability to remain ‘calm under pressure’ and to make complex ethical judgments, all at some reasonable time after admission to practice. Interviewees were sophisticated: it was clear, for example, that no-one thought it possible to assess whether a position on an issue was always and in all circumstances ethically correct. No clear methodology was preferred, but some were doubtful about a ‘test’ per se – arguing that preparation for a test of any sort inevitably leads to ‘cramming’ behaviour in some people – and raised an alternative approach: that the above qualities could best be adequately dealt with by a panel charged with interviewing practitioners and making a qualitative judgment. This proposal is further discussed in Chapter 7. Three to five years after admission was thought to be a reasonable period for practitioners to develop these skills and a sufficient self-understanding of their ethical make-up. They did not think it wise to wait until lawyers had been in practice for significantly longer periods because of the potential for bad habits and attitudes to mature and become more intractable. Their main hesitation was the cost of this process, which was considered to be substantial, perhaps impossibly so. However, their concern for the potential of outside regulators to become involved, in order to deal with ethically inappropriate behaviour, increased their sense that Law Institute-driven (law society) pre-emptive measures are becoming more urgent. Outside regulators were not named, except for the Courts, but lack of sufficient judicial interest in lawyers’ discipline was also noted. The jurisdictional context of these comments came from those in commercial legal practice.

5.3.4 Summary of interpretation: Concerns for professionalism Interviewees fell into two distinct groups. Some were sanguine about professionalism and others were worried about what they saw as a decline in ethical behaviour across the profession as a whole. Those who were unperturbed were mainly (though not exclusively) older males. They cited the then favourable business conditions, what they saw as generally energetic efforts to do the right thing by clients and a strong sense of collegiality inside their own firms and among their wider peer group, as indications of collective professional security 5 Extract from interview with accredited specialist AC19, Melbourne.


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and their own future prosperity. These lawyers saw acute competence as the peak of professionalism. The other group was not particularly differentiated by gender or age, but were consistently critical and dissatisfied with price inaccessibility, the pressure to perform pro bono work (which they tended to see as being squeezed by their own, increasing cost-fee structures) and a residual reluctance to mediate disputes. This latter group was anxious about the link between unethical standards and the future of professional independence, leading in their minds to an inevitable, increasing regulatory interest in the profession generally and occasionally even in their specialisations. They saw themselves as competent, very hard workers with good client relationships who were therefore successful, but were also generally discouraged by the ethical standards of non-accredited practitioners, be they large-firm commercial lawyers or sole practitioners. A few were zealots for broad-scale ethics testing to occur immediately, but the consensus was to hasten slowly. As specialists, they could afford to be prescriptive of their nonaccredited peers in pushing for greater ethical sensitivity at all costs, but did not take this position, citing the cost to the profession as too burdensome. Instead, they were reflective and responsive about possible ethical enhancements, willing to listen but not ready to commit to any agenda, except that of much greater promotion by the profession as a whole of the service and security provided by legal professionals.

5.4 Conclusion to concerns for professionalism Regardless of business conditions, which were still buoyant when these interviews were conducted, concern for underperformance in ethical behaviour was a consistent theme across this cohort and remains so across the profession. While testing for ‘technical’ competence is a known quantity for those seeking specialist accreditation after initial admission to practice, assessing lawyers’ ethics was still seen as optional even for this elite group. And although interviewees felt that a ‘test’ of ethics could be anticipated (via ‘cramming’) and that it would not therefore be sufficiently predictive, they did not have any particular understanding of how such a test might operate or how the consequences of that cramming might be controlled. Their preference for a peer-conducted interview to assess if a lawyer understood ethical complexity and his or her ethical obligations was, however, fully convincing. The resentment of pro bono was focused on the possibility of compulsory pro bono activity. Interviewees were not adverse to the concept per se and there remains a real case for assessing attitudes to pro bono or community service, as distinct from whether those attitudes are acted on. If a practitioner considers they are open to altruistic contributions in some circumstances then that openness, if genuine, ought to be enough. This is an ethical quality that can be assessed by a careful questionnaire and peer interview rating and represents a mid-point

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position to either of the extremes: the lawyer who maintains, categorically, that they have no obligations to society beyond those of service with integrity to paying clients, and the lawyer who is equally adamant that a requirement for pro bono activity is the appropriate price of a monopoly. The generalised discussion about professionalism as an overarching description for legal ethics provided important insights about a key assessment method: interviewees were sceptical of the veracity of any quantitative test of their ethical preparedness, but were more confident that a group of their peers would have the capacity to make such an assessment in an interview environment. This confidence derived from a sense that the nuanced impact of situation and circumstance on ethical decision-making could be understood by lawyer peers but not sufficiently understood or catered for in a psychological or similar quantitative assessment process. The element of denial in this perception – in other words, that the criteria used by peers to make qualitative judgments are completely incapable of rendition in quantitative terms – was not of major concern to interviewees. Their preference for qualitative assessment and suspicion of any rating which might have a psychological mechanism behind it was pronounced and in turn formed by their personal and less than enthusiastic experiences of psychologists and psychological evidence. Interviewees were, however, speaking from a general citizen’s perspective rather than as experts. Just as clients’ detailed understanding of ethical behaviour might be considered limited by lawyers, interviewees’ negative reactions to psychological testing does need to be treated cautiously. Nevertheless, a lot of attention was paid to understanding interviewees’ opinions about psychological issues in ethics assessment. This is because writing about aspects of lawyers’ psychological health and function is extensive, as can be seen below. One promising approach to assessment involves the development of a quantitative rating of ethics awareness (as explored in Chapter 7) and there are also grounds to work on a credible psychological test for honesty and integrity. Psychological health assessments already stray into this territory. After examining scholarship on these possibilities, interviewees’ views on the possibilities are reported and examined.

5.5 The climate for psychological testing for honesty and integrity Perhaps the key complaint of lawyers’ ethics revolves around a perception of less than honest behaviour. The shyster lawyer – the ‘pettifogger’ discussed in Chapter 2 – is a much maligned figure, though the label of distrust is more talked about than proved. There is a complete lack of any credible quantitative data that establishes whether the sense of community mistrust of lawyers as a group is well-based. And even if there were such evidence, efforts to prove or disprove


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the perception are pointless. Media-fed overstatement will always obscure the reality and wisely enough, the profession does not try to publicly protest at such labels, knowing how such objections will be received. But perceptions are powerful and must not be dismissed out of hand by a responsible profession. Disciplinary prosecutions and scandal demonstrate the reality of some lawyers’ misbehaviour and, as noted in earlier chapters, many of those cases cause real harm to clients and the justice system. As an antidote to distrust of the profession, law societies promote positive stories of lawyer altruism wherever possible, but are still faced from time to time with the need to make strong statements about their support for better ethics. So far, they have not been called upon to do more than improve ethics training or run ongoing ethics ‘clinics’ for sub-groups of lawyers whose ethical challenges might be particularly complex. These initiatives are obviously helpful, but are they effective enough? Will the individual lawyers who are about to be economical with the truth, to refrain from correcting an opponent’s mistake knowing that a tribunal will probably rely on that error and justice will miscarry, or simply to lie, be reached and touched by that non-assessable training or those optional discussion groups? Some will respond, but if their past behaviour and their present intentions indicate that their own truth-telling is also optional, the chances of reform or removal from practice through such professional activities are not high. Regulators are already active in efforts to administratively curtail practitioners whose mental health is at risk by requiring those of whom complaints are made to undergo mental ‘health assessments’ as a condition of renewal of their annual practising certificates.6 At present, when complaints of persistent dishonesty are made they are dealt with post-facto via the disciplinary process, but they could also be dealt with administratively and regularly if it were possible to devise credible tests for honesty and integrity. Since psychological testing is already used to stop a mentally ill lawyer from practising until they are successfully treated and to demonstrate that a lawyer has been rehabilitated after a disciplinary event,7 why would not future regulators also consider such testing as a preventative mechanism? If there were a reasonable possibility that dishonest lawyers, or those with little appreciation of where the line between truth and deception is to be drawn, could be identified in advance of their predation, regulators would be highly attracted to such intervention in response to a large enough scandal. But regulators, even those with the best of intentions, are sometimes not the ideal institutions to go on the front foot with such initiatives. In some jurisdictions, they might be too attentive to government and therefore insufficiently sensitive to the need for an arms-length relationship between lawyers and the 6 See generally Legal Profession Act (Vic) 2004, Part 2. 7 Alice Woolley, ‘Tending the Bar: The “Good Character” Requirement for Law Society Admission’ (2007) 30 Dalhousie L.J, pp 50–1. Woolley affirms in her study of Canadian admission cases that psychological evidence, which must include testing, is already useful, although its main purpose is adversarial rather than inquisitorial.

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State. There are already numerous examples of governments and external regulators’ intervention against legal professional control of regulation in aid of government perceptions of the public interest. For example, the Australian State of Victoria forced a separation of representative and regulatory functions in the wake of fidelity compensation fund insolvency 15 years ago. In the near future, regulator intervention might in fact be encouraged by governments that have tired of independently minded lawyers. This is not just an issue of continuing scandals involving lawyers. To take a very big-picture approach, if humanity’s global resources relative to the numbers of mouths to feed are to decline, as it seems they must, then State pressure could also increase on those occupations who seek to gain better access to those diminishing resources via human rights and environmental litigation. Lawyers are and will be the primary agents of governments for (and citizens against) such pressure and their regulation may become progressively more politicised. At the same time, advances in genetics and psychological practice are steadily enhancing the potential for psychological tests to identify consistent ethical misbehavers and if regulators are pressed by public opinion to consider their introduction, or by governments responding to that opinion and to other lessaltruistic agendas, where will the profession be? A law society or bar association could argue that the State was behind any initiative in this arena, but will the public care, much less demonstrate for lawyers? Law societies as the custodians of the profession have the obligation to promote lawyers’ fidelity and integrity, taking by the horns the issue of nonassessable post-admission training and establishing integrity testing that is realistic and achievable, particularly as genetic knowledge advances. Nobody is in a better position in the justice system to determine what is truth, what is interpretation, what is nuance and what is outright deception. Societies might be accused of simply protecting their members’ interests, but that concern is not improper if its purpose is also to improve their moral resilience and accountability. They can moderate such tests and certify to their balance between the needs of zealous advocacy and the duties of a responsible lawyer to the court and society. They can go further and ask for an understanding of virtue in the sense advocated in Chapter 3. To this extent, the profession must seek to be in the driving seat of change and not painfully and plaintively responding to the initiatives of others. In these sections, practising lawyers’ views on the possibilities relevant to assessing personality attributes and to psychological testing of integrity are discussed.

5.6 Significance of studies of lawyer attributes and personality Searches for ways and means to nurture and sustain honest lawyers have often commenced with attempts to try to understand and define lawyers’ attributes and


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personality types. This research confirmed a pathology of the legal profession as under stress and in need of additional support in a struggle to remain ethical and accountable to interests beyond those of the immediate client. Daicoff’s 1997 omnibus investigation of earlier writing and research about lawyers’ personalities was not just a process of psychological comment on disturbing behaviours observed by others but also an attempt to determine if there is a ‘lawyer personality’. She tried to determine if such a personality was connected to what was even then seen as the moral crisis in the legal profession.8 Daicoff first addressed what she described as lawyer ‘attributes’, referring to Reich’s 1976 psychological inventory of first-year American law students as suggesting that there are ‘pre-existing personality conflicts in law students which may be contributing to the current low levels of lawyer satisfaction and low public opinion of attorneys’9 [emphasis added]. This portentous opening comment was followed by references to much earlier studies, restated below, to indicate the range of those researchers’ conclusions about what can only be generalised, fairly or otherwise as lawyers’ longstanding emotional disabilities: Heins reported in 1983 that US law students experienced significantly ● higher levels of academic stress than medical students, but medical students were four times more likely to seek help,10 concluding that law students denied stress or used ‘maladaptive’ methods to deal with it.11 Shanfield et al reported in 1985 that 12% of law students experienced ● significant (psychiatrically evaluated and treated) depression, compared to just 3–9% of the general population.12 Benjamin’s 1983 study showed that pre-law American students were not ● disproportionally distressed, but later exhibited steadily increasing stress levels as law students; stress which did not abate until at least two years after graduation and often not at all.13 Anderson et al found in a 1973 Australian study that no more than 20% ● of entering Australian law students were motivated by altruism concerns, compared to 25–35% for other professions. Status concerns were more

8 Susan Daicoff, ‘Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism’ (1997) 46 The American University Law Review 1337, 1375. Daicoff’s study preceded the Enron catastrophe by some years, anticipating many of the concerns about accountants’ and lawyers’ actions that later came to prominence when that corporation collapsed. 9 Stephen Reich, ‘California Psychological Inventory: Profile of a Sample of First-Year Law Students’ (1976) 39 Psychol. Rep. 871, 873. Daicoff also says that ‘The research uniformly portrays law students as dominant, competitive, leadership-oriented, socially confident, extroverted, sociable, free from anxiety and insecurity, ebullient, and at ease in interpersonal relations.’ (p 1372) However, the ‘inner world’ of the law student can be discordant, with a high level of psychological distress in evidence, after peeling back the confident exterior. They can score low on a ‘Sense of Wellbeing’ scale and can be also seen in intrapersonal terms as ‘insecure, defensive, distant and lacking in maturity and socialisation’. 10 M Heins, et al, ‘Law Students and Medical Students: A Comparison of Perceived Stress’ (1983) 33 J. Legal Educ. 511, 520–1. 11 Daicoff, op cit, n 8, p 1376. 12 SB Shanfield and AH Benjamin, ‘Psychiatric Distress in Law Students’ (1985) 35 J. Legal Educ. 65, 72. 13 Andrew H Benjamin, et al, ‘The Role of Legal Education in Producing Psychological Distress Among Law Students’, (1986) Am. Bar. Found. Res.J. 225, 250–301; G Andrew H Benjamin, Alfred Kazniak, Bruce Sales and Stephen B Shanfield, ‘The Role of Legal Education in Producing Psychological Distress Among Law Students’ (1986) 11 Law and Social Inquiry 225.

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common among men than women in all professions.14 In relation to this Australian study, Daicoff commented that: One explanation for this is that actual motives for both men and women may not differ substantially, but what is socially acceptable for them to report may differ. The alternative explanation is that female law students are actually more altruistic than male law students.15 ●

Hedegard reported in 1979 that lawyers’ attitudes over the period of their exposure to law school became more qualified, more cautious and less certain:16 This shift was much more apparent with respect to opinions about the way lawyers are than it was with respect to ideas about the way lawyers ought to be, suggesting that students’ values may change less than their perceptions about the real world.17

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Williams et al concluded in 1983 that there is a lawyer stereotype: ‘Lawyers are likely to be more achievement-oriented, more aggressive and more competitive than other professionals and people in general.’18 Thielens found in 1969 that law students’ responses to ethical conundrums were higher at the end of law school but regressed after the entry to practice, as a result of that entry.19 Peters has used the Myers-Briggs Type Indicator20 (MBTI) with law students to considerable effect. The MBTI was first tested with lawyers in 1967 and replicated by Peters in 1994.21 He found that Florida law students differed

14 Don Anderson, et al, ‘Conservatism in Recruits to the Professions’ (1973) 9 Austl. & NZ J. Soc. 42, 42–5: ‘[L]aw students’ cynicism increases and idealism decreases as a result of law school’ (p 45). 15 Daicoff, op cit, n 8, p 1361. 16 LM Hedegard, ‘The Impact of Legal Education: An In-depth Examination of Career-Relevant Interests, Attitudes and Personality Traits Among First -Year Law Students’ (1979) Am. B. Found. Res. J. 832. 17 Daicoff, op cit, n 8, pp 1386–7. This comment provides interesting support for the possibility that law school can help change students’ attitudes, though perhaps not values. But if there is little between the two, it is likely that the most that law schools can do is help people to become aware of their values (and especially the variations in inherent values derived from their demographic characteristics in some areas: gender in general; ethnicity, occupation, university and perhaps State in different scenarios). 18 ibid, p 1390. Daicoff referred to SW Williams and JC McCullers, ‘Personal Factors Related to Typicalness of Career and Success in Active Professional Women’ (1983) 7 Psychol. Women Q. 343, 350. 19 WP Thielens, ‘The Influence of the Law School Experience on the Professional Ethics of Law Students’ (1969) 21 J. Legal Educ. 587, 590–91. As a further comment, Daicoff refers (p 1402) to a 1989 study which found that female law students had an ‘ethic of care’ early in law school, while males had a ‘rights’ orientation, with a decrease by the end of the 1st year in the female ‘ethic of care’ and an increase (across the board) in the ‘rights’ orientation. See S Janoff, ‘The Influence of Legal Education on Moral Reasoning’ (1991) 76 Minn. L. Rev. 193, 234 and 238. Daicoff suggests (pp 1402–3) that reconciling a continuing ‘ethic of care’ with being a lawyer might entail one of three approaches: 1. Denying there is any conflict and disowning the emotional call (not likely to work because of resort to substance abuse or ‘workaholism’, in order to cope); 2. Allowing the rational side to operate at work and the emotional side to operate at home (as with #1, because discomfort continues) and 3. Implementing an ethic of care inside the workplace (chosen by only 2 of 18 women surveyed). See Janoff, above, citing Rand and Dana C Jack, Moral Visions and Professional Decisions: The Changing Values of Women and Men Lawyers, Cambridge University Press, New York (1989), 130. 20 See Isabel Briggs-Myers with Peter B Briggs, Gifts Differing: Understanding Personality Types, 2nd ed, Davies Black Publishing, Palo Alto, California, 1995. The MBTI has been used in legal education and as a socio-legal research tool. See also Don Peters and Martha M Peters, ‘Maybe That’s Why I Do That: Psychological Type Theory, the Myers Briggs Type Indicator, and Learning Legal Interviewing’, (1990) 35 N.Y. L. Sch. L. Rev. 169. 21 Lawrence R Richard, ‘Psychological Type and Job Satisfaction Among Practicing Lawyers in the US’ (unpublished PhD, Temple University, USA, (1994)). Daicoff, op cit, n 8, pp 1366–7, examines the differences between the two preferences and observes that Richard found that 76% of sampled lawyers preferred Thinking over Feeling, while only 47% of the general population had the same preference.


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from other students in their preference for ‘Thinking’ over ‘Feeling’;22 that is, their thought processes dominated their emotional responses. The MBTI, developed from the original concepts of the Swiss psychologist and psychiatrist Carl Jung (1875–1961), is one of a number of relatively simple psychological categorisation instruments that perform similar functions.23 For purposes of illustration, the MBTI instrument divides all persons into one of sixteen psychological types, such that each person’s type (a four-node combination of either: 1. Extroversion or Introversion; 2. Sensing or Intuition; 3. Thinking or Feeling and 4. Judging or Perceiving) describes a mode of behaviour with which a person feels most comfortable or at ease. Despite the historical scepticism in the legal community about psychological typing, many researchers have found the MBTI useful in assisting an understanding of why ‘normal’ individuals consistently behave in particular ways, when left to their own preferences. The fact that law students should prefer Thinking to Feeling is an unsurprising finding, but the finding is important to the task of strengthening lawyers’ psychological awareness. As Daicoff noted: Lawyers tend to be more logical, unemotional, rational and objective in making decisions and perhaps less interpersonally oriented than the general population, [explaining] . . . why lawyers and their clients at times have trouble interacting with and relating to each other.24

It is sometimes suggested that the many lawyers who seem to fit the socalled INTJ profile (Introvert-Intuitive-Thinking-Judging) are more likely to be successful as lawyers, but this is still to be conclusively demonstrated. Suffice to say that sensitive-caring lawyer types – conceivably those who might be more attentive to truth-telling than other types – may be more likely to find legal practice as it is presently structured unattractive or pursue other careers than the focused problem-solvers who comprise the Thinkers. Daicoff’s list was not exhaustive. Other researchers were coming up with similar findings. These included Carrington and Conley, who in 1977 examined law student alienation in a Michigan law school, perceiving disinterest and disengagement in a significant minority.25 They were uninterested in law reform, 22 Daicoff, op cit, n 8, p 1394; referring to Richard, op cit, n 21, p 78. 23 Another well-known instrument is the Enneagram, which emphasises psychological motivations to describe emotional outlooks on life. See <www.9types.com/homepage.actual.html> at 2 June 2009. There are also a number of sophisticated and expensive instruments, all of well-researched efficacy, available to screen for general personality traits and potential psychological problems. These include the Minnesota Multiphase Personality Inventory – 2/MMPI-2; the California Personality Inventory/CPI; the Personality Assessment Inventory/PAI; the NEO Personality Inventory (revised); and the Fifteen Factor Questionnaire (15FQ+). Each provides varying levels of information about participants depending on the aims of the assessment and take 1–1.5 hours to administer, depending on the subject. However, the cost of administering these instruments can range up to AUS$1000 per subject, which generally makes them best suited to scoping psychological ill-health rather than delivery to a large number of lawyers to assist in self-understanding of differing states of healthiness. 24 Daicoff, op cit, n 8, p 1394. 25 Paul Carrington and James Conley, ‘The Alienation of Law Students’ (1976–1977) 75 Mich. L. Rev. 887, p 893. Carrington and Conley distinguish alienation from dissatisfaction. They describe the latter as a feeling of annoyance with many if not most aspects of the law school experience: Carrington and Conley, 892– 96. They suggested that one in seven Michigan law school students were then, in effect, emotionally and intellectually withdrawing from law school without formally dropping out. The formal withdrawal rate was

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social contribution and personal integrity26 regardless of social background.27 Sharpe cites a study by Martin Seligman, Paul Verkuil and Terry Kang, which suggests three main reasons for lawyer unhappiness: ‘pessimism, high pressure and low decision latitude experienced by junior lawyers and the zero-sum game of the adversarial system of justice.28 Sharpe discounts ‘low decision latitude’ as a significant cause because many lawyers have some control of their working lives, but endorses pessimism and adversarial-success pressure as central causes of lawyer depression in an Australian context. And another important study of Harvard law graduates conducted by Granfield and Koenig29 in the late 1980s concluded that, at least in the United States, the ABA conduct rules had played a part in this disillusion: Many of our respondents reported obeying the professional code of legal ethics even if it meant violating their personal moral codes. The ethical qualms that respondents experienced were commonly viewed as symptoms of personal weakness that should not be allowed to interfere with their professional responsibilities.30

5.7 Assessing psychological health With so much research evidence of psychological distress and increasing numbers of tragic reports of lawyers with behavioural problems,31 it was inevitable that efforts would have to be made to remedy the situation. A 2007 report addressing the psychological health of a range of Australian professions concluded that 15% of lawyers suffered moderate or severe depressive symptoms and that 5% used alcohol and non-prescriptive drugs to manage their symptoms.32 Lawyers then 1 in 20. The importance of the differential between the ‘alienation rate’ and actual withdrawals was that alienated students tended to graduate and some at least presumably entered practice, though this last conclusion was not a part of the study. Their single law school study of 185 later-year students from three courses in civil procedure, administrative law and creditor’s rights was not randomly selected. Nevertheless, the authors contended that the sample was representative of Michigan law school students (though not of all law schools) at the time because of the nature of the courses chosen and the seniority of the students. 26 ibid, p 895. 27 ibid, p 891. 28 Michelle Sharpe, ‘The Problem of Mental Ill Health in the Profession and a Proposal for its Solution’, in Kieran Tranter (ed), Alternative Perspectives on Lawyers and Legal Ethics, Routledge, (forthcoming), Chapter 1, n 47, citing Martin Seligman, Paul Verkuil and Terry Kang, ‘Why Are Lawyers Unhappy?’, (2005) 10(1) Deakin Law Review 49. 29 Robert Granfield and Thomas Koening, ‘“It’s Hard to Be a Human Being and a Lawyer”: Young Attorneys and the Confrontation with Ethical Ambiguity in Legal Practice’, (2002–03) W. Va. L. Rev. 495. Most interviews were conducted in 1993, about 10 years prior to publication. This qualitative study covered 40 young lawyers who had graduated from Harvard Law School in the late 1980s and who had, at the time of interview, been in practice in a variety of legal environments for approximately 4 years. Their objective was to see how law school ethics education might be improved to deal with the disconnection between the ABA professional conduct rules, which typically lionised the ideal of zealous advocacy over all other considerations, and the personal moral standards of lawyers. Questions raised in in-depth interviews dealt with career path, ethical dilemmas, discrimination and work pressure (508). Respondents were highly critical of the conduct rules because of their ‘failure to give guidance on the unique problems they confronted’ (510) and considered their law school instruction in ethics was ‘too nebulous’ (510) to be of assistance. 30 ibid, p 512. 31 The death of Victorian barrister Peter Hayes QC in May 2007 is a recent example. See Sharpe, op cit, n 28, p 1. 32 Beaton Consulting and BeyondBlue, Annual Professions Survey 2007, Australia, 2–3. See <www. beyondblue.org.au/index.aspx?link_id=105.898&oid=921> at 13 May 2009.


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were the most likely of any Australian profession to use drugs for this purpose.33 Sharpe cites the most recent Australian study from the Brain and Mind Research Institute, which found that almost one-third of solicitors (attorneys) and onefifth of barristers (advocates) suffered from clinical depression.34 The breadth of this finding is very confronting and it is not isolated to Australia. Lawyers’ psychological health appears equally compromised in the United States,35 Canada36 and the United Kingdom.37 While lawyers’ mental health has always been recognised as important within the ‘good character’ requirement of all applicants for admission to practice, some jurisdictions are beginning to recognise that the psychological health problem is exacerbated after admission, by the experiences of legal practice and needs to be addressed with greater determination on an ongoing basis. It is not suggested that a mentally ill lawyer is also a lawyer who lacks ethical understanding, but mental illness can plausibly be expected to interfere to some extent with an ability to make ethical judgments and to act upon them courageously. To the extent that mental illness can be identified and treated with empathy in a particular lawyer, their ethical sophistication must be enhanced rather than degraded. In Victoria, an effort has been made to improve mental health through the annual requirement to renew a practising certificate.38 The independent regulator (the Legal Services Board) may take into account ‘suitability matters’ in deciding whether a practitioner is fit and proper to continue in practice.39 Mental impairment40 is such a matter and is defined to include alcoholism and 33 ibid. 34 Sharpe, op cit, n 28, p 6, citing the Tristan Jepson Memorial Foundation lecture on 19 September 2008, referred to in University of New South Wales Press Release, 19 September 2008 and Nicola Berkovic, ‘Black Dog Gnaws at Profession’, The Australian, 19 September 2008. 35 See, for example, Hilary Duke, ‘Narrowing of State Bar Examiner Inquiries into the Mental Health of Bar Applicants: Bar Examiner Objectives Are Met Better through Attorney Education, Rehabilitation, and Discipline’ (1997) 11 Georgetown Journal of Legal Ethics 101, 110; Kelly R Becton, ‘Attorneys: The Americans With Disabilities Act Should Not Impair the Regulation of the Legal Profession Where Mental Health is an Issue’, (1996) 49 Oklahoma Law Review 353, 355. Sharpe, op cit, n 28, pp 7–8, details many other studies reaching similar depressing conclusions about US legal practitioners’ mental health and their preference to self-medicate using alcohol, cocaine and ultimately, suicide. And it is to be expected that economic recession promotes lawyers’ depression. See Julius Melnitzer, ‘Lawyers’ Depression Rates Double’, 6 May 2009 which cites a National Law Journal report that the ‘ . . . Illinois Lawyers’ Assistance Program had its busiest month ever in April 2009, when it handled 42 referrals. The program, which helps lawyers deal with personal difficulties like depression and substance abuse, says the 42 referrals are double its monthly average in 2008. Apparently, lawyer assistance programs are seeing a similar pattern all over the U.S. Attention to the emotional problems caused by the turmoil in the profession has increased since a prominent Kilpatrick Stockton lawyer, Mark Levy, committed suicide last week after being laid off from the firm.’ 36 Woolley, op cit, n 7. 37 See, for example, Cannazine, ‘Lawyer Who Fell to His Death Had Cannabis-Induced Depression’ at at 13 May 2009, which reported that the young Freshfields lawyer had phoned his psychologist several days beforehand and described problems with sleeping as he had been working 14-hour days. He had been sitting on his balcony railing 80 feet from the ground using his Blackberry when he fell. 38 Legal Profession Act (Vic) 2004, s 2.4.5. Similar legislation exists in the Northern Territory: Legal Profession Act 2006 (NT), ss 95–99. 39 Legal Profession Act (Vic) 2004, s 2.4.4(1). 40 ibid, 2004, s 1.2.6 (1)(m).

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drug dependence.41 Practitioners have a positive obligation to disclose, on an annual basis, any mental health episodes, so defined, within the previous 12 months. When disclosure occurs, a psychologist or psychiatrist is contracted by the Board to provide a report and a decision is then taken as to whether the practitioner is no longer a fit and proper person to practise.42 Revocation, suspension or continuation of the practising certificate subject to conditions, may then follow. Some practitioners can be expected to in effect report themselves under mental health mandatory disclosure requirements, but investigations under regimes such as the Victorian legislation cannot be limited to self-reporting. It is axiomatic that some lawyers with mental health problems will be in denial. Depression will often be recognised by others, but not necessarily by the sufferer. This is the reason why regulators must be able to act on the basis of a complaint, as is the case in Victoria.43 It is therefore relatively straightforward to provide that reports of serious mental ill-health, including substance abuse, will lead to periodic and predictable review of a lawyer’s right to practise, but what of the situation where a practitioner’s behaviour does not exhibit obvious ill-health but nevertheless leads to concern among colleagues, peers and the courts? Should lawyers’ mental or psychological health be regularly assessed, regardless of any complaints, in the interests of the overall probity of the justice system? Rule of Law and human rights considerations,44 together with the cost of assessing the psychological health of every lawyer on an annual basis make this idea impractical; but what of the further possibility that a lawyer might reasonably and occasionally be asked by their law society (as opposed to a peak regulator) not about any mental illhealth, but about their psychological healthiness: that is, about their attitudes to clients, to the justice system and to their role within it? A law society, acting not in a punitive manner, but with the intention of assisting its members to maintain and improve their general fitness to practise, could provide an invaluable service to those members in this context. To the extent that the (1990s US) ‘professionalism crisis’ was represented by a high degree of lawyers’ ‘incivility’ to clients, to opponents and (even to) the Courts and by highly inappropriate advertising, Daicoff wondered if all this might simply be a product of the ‘typical lawyer attributes.’45 Such attributes would explain how lawyers’ ‘impersonal orientation and materialism . . . may contribute to . . . the lack of public and community service rendered by attorneys’.46

41 ibid, s 1.2.1. 42 ibid, ss 2.5.2 and 2.5.4. 43 ibid, s 2.5.4. 44 Many jurisdictions are beginning to legislate for Charters of Human Rights which are highly likely to prohibit intrusive questions about an individual’s mental ill-health in the absence of definitive evidence of law breaking. 45 Daicoff, op cit, n 8, p 1421. 46 ibid, p 1425.


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Since the number and diversity of the studies discussed above is more than enough to raise the unattractive possibility of a negative ‘lawyer personality’, law societies arguably have both the role and opportunity to advance their members’ health and protect the community by addressing issues of lawyer healthiness in a manner that could prevent the regulator scrutiny which occurs after a complaint is registered. Regulators’ post-complaint investigations of this nature are likely to be considerably more serious for a practitioner than pre-emptive law society activity designed to confidentially assist members to strengthen their own understanding of typical ‘lawyers’ personality’ challenges. Law societies could choose to help members to self-identify when they are at the same time zealous of clients’ interests but also insufficiently sensitive to their interpersonal needs as well as those of their clients; to recognise when they are reluctant to have their work reviewed by others; to identify with any potential for substance abuse as a coping mechanism; and to agree to the service opportunities of lawyers within society. An example of a ‘psychological healthiness’ questionnaire which a law society might use with its members is as follows: How do you see your clients? [as possible friends; as people to be kept at a distance; warily; as potential complainants; as income units; as collaborators in business; as difficult; as needing my help; as lucky to have me] What do you think of the justice system? [as a fair balance of competing interests; as corrupt; as hopelessly compromised; as efficient as any flawed system can be; as moderately effective; inaccessible for nearly everyone; as our only protection against tyranny, as an income unit, as something that I would prefer not to use myself] What is your role within the justice system? [as a player; to be as effective as possible; as unable to deliver much change; as attempting to look after my clients as much as possible; as a reformer; to use it as much as possible to make a living] What goes through your mind when you have to act for a client in a manner that you find distasteful? [a ridiculous question; too general a question to deal with; never need to behave that way; continue on and try to ignore it; go home and try to forget about it; talk about it in detail with my colleagues in the firm; talk about it (in general terms) with my partner; depending on the circumstances, talk about it with a law society counsellor] Does legal practice inspire you? [a na¨ıve question; ability to express feelings of vocation and of meaning in life; ability to express feelings of being bored, trapped or of lacking purpose; recognising feelings of both these extremes] When a client is distressed, how do you handle it? [issue does not arise; with an ability to recognise my own feelings in response to client distress; listen to them and let them talk; try to move on] How do you cope when things get tough in the office? [mental shrug of shoulders; some substance abuse; talk about it] Must you know the answer to everything a client asks you, right away? [a na¨ıve question; yes, of course; always buy time, in order to be sure; it’s usually possible to find some middle ground while research is done] Do you find that it’s hard to make the transition between home and office, and vice versa? [extreme tiredness on arriving home; excessive irritability with domestic duties; inattention to partners; ability to talk at home but not at the office; excited about going to office; dread going to office; wary anticipation as I enter the office] Is there time for you to work pro bono on a regular basis? [yes; desire to do so not matched by the realities of billing; no desire to work pro bono; no reasonable obligation for lawyers to do so (other professionals generally do not)]

Concrete gains to the client community are also likely if lawyers’ awareness of psychological profiles, of ethical types and of factors that indicate the presence of

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depression are assessed relatively soon after admission to practice. Such assessment is not likely to be cost-effective before admission because the stress of actual practice arguably strengthens the symptoms of mental ill-health and because many law schools graduate significant numbers who do not become practising lawyers, but the need for timely assessment at some point soon after admission seems hard to discount. Inferring ‘a direct link between mental ill-health and poor ethical decision-making or lower professional standards’, Sharpe suggests that if ‘ . . . professional associations and regulators aim to promote good ethical decision-making and high professional standards in lawyers then they must also promote good mental health’.47 Daicoff could be correct in her summation of the research undertaken to 1997 that some lawyers’ distinctive traits are present well before law school and are even a part of the self-selection process. If so, legal educational and legal professional initiatives of the sort described above would be unlikely to have a big impact on ethics after admission to practice, unless they can in some way expose lawyers, at a confidential individual level, to the contrast between a dominant adversarialism and alternative models of behaviour and, in effect, invite them to consider those alternatives. Appendix C is an example of such an invitation. This exposure would necessarily include their awareness of their own sense of honesty and sense of integrity. Attitudes to aggressive adversarialism may be improved by exposure and reflection (using cognitive dissonance)48 upon such values’ differences, followed by assessment of the depth of subsequent awareness. Delivery of such training and assessment is a skilled process, but so are many educational activities and the innovation will not present insurmountable challenges if there is a commitment to pursue such assessment as a confidential, lawyer-enhancement service. The extent of the research into psychological ill-health in the profession and of the possibilities flowing from lawyers’ individual awareness of their psychological ‘type’ – that is, by individual knowledge of their preferred psychological type within an MBTI or similar framework – now make it rational for law societies and not just regulators to support psychological-type testing as a part of a wider effort to encourage and support lawyers’ honesty and integrity.49 Lawyers who are aware of and comfortable with that knowledge in their workplace environment are likely to experience greater satisfaction as lawyers. It is not outrageous to assert that such self-assurance will assist them to retain better control over themselves in those workplaces and to decide to tell the truth with more rigour than might be the case for someone who is stressed by their role, the pressure from superiors and the confusion in priorities which that stress can generate. 47 Sharpe, op cit, n 28, p 23. Sharpe observes that ‘the symptoms of clinical depression provide a close fit with the kinds of complaints most frequently made about lawyers. Common symptoms of depression include working more slowly, making mistakes more often, unable to concentrate, absenteeism and unable to delegate tasks.’ See Melanie Naylor, ‘Depression in Lawyers’ (October 2004) Brief 12. 48 See Luban, Chapter 1, n 8, in relation to the possibility of utilising cognitive dissonance as a tool for combating the corruption of lawyers’ judgment. 49 An example of an online MBTI test can be found at <www.personalitypathways.com/type inventory. html> at 12 April 2010.


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After awareness of ethical type, psychological types and attitudes to truthtelling are addressed by law societies, the additional more difficult task of tackling honesty and integrity in lawyers arises for consideration.

5.8 Unravelling honesty and dishonesty One criticism that might be made of efforts to test honesty is the apparent difficulty in defining and separating ‘honesty’ and ‘dishonesty’. Professional debate about a sufficiently precise definition of the concept of honesty might make a test impractical, especially when lawyers’ traditional role as zealous defenders of clients’ rights allows them to remain silent in doubtful circumstances. This type of internal conflict can be particularly severe for such lawyers, who can feel embarrassed about their own silence in trial contexts and struggle to assert that such silence is not dishonest if it falls within lawyer–client confidentiality or even client privilege. They would prefer to equate their conditional honesty with complete honesty, but they know that the confidentiality environment, which is typically reflected in numerous rules of conduct, is not the forum where the major concerns for lawyers’ honesty and integrity is played out. Client confidentiality and its sub-set of client privilege provide an ‘administration of justice’ category for acceptable silence and the necessity for these protections is not in dispute. Accordingly, testing for lawyers’ honesty cannot be allowed to interfere with such priorities and it need not do so. But concern about the lying lawyer operates right outside such arenas. These lies are usually active in nature, rather than the passive silences that are justified by the fact-finding process. Active lies infest both litigation and the transactional environment and range from the mundane denial of a prior undertaking through to deliberate deception of courts,50 and the cover-up of stolen trust funds.51 Lawyers’ lies, so defined, have nothing to do with the confidentiality of the lawyer–client relationship or the conditional silence permitted by that concept. They are conscious misstatements or those so recklessly unconcerned for the truth that they amount to the same thing and in any event, are directly inimical to appropriate lawyer–client relationships. Lawyers’ ethical types also re-enter the arena. A lawyer who is insufficiently aware of the implications of a preference for zealous advocacy or who is prepared to take any approach to, for example, achieving some ‘morally active’ objective in law reform, may also be prepared to lie to advance their clients’ interests or their political objectives. When a lawyer is under enough of this sort of pressure, they may rationalise that their current statement is not untruthful, but merely a half-truth or even a different interpretation of a contested set of facts. 50 Classic examples of such deception from the UK include Meek v Fleming [1961] 2 QB 366 and Rondel v Worsley [1969] 1 AC 191. 51 See generally Reid Mortensen, ‘Interest on Lawyers’ Trust Accounts’ (2005) 27(2) Sydney Law Review, Chapter 1, n 7.

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These are still ‘lies’ and lawyers ought to know them to be so, but they can still self-deceive into thinking that their half-truths are close enough to whole truths to be acceptable to themselves. The rationalisation then extends to a willingness to believe that the lie would therefore be acceptable to others, if they knew of it. A lawyer who understands that they are actively lying in this way is making a conscious decision to do so. Such decisions cannot be stopped by law societies or anyone else. Their willingness to actively deceive cannot be prevented by testing for honesty, but some assessment for honesty can still assist. Lawyers’ understanding of their capacity to actively deceive can be made more acute by raising, for their cognitive appreciation, any dissonance in their attitudes to lying and therefore limiting any possibility that their decisions to lie are being internally justified. If the distinction between lawyers’ right to conditional silence in the factfinding process and the telling of active lies is clearly understood by lawyers through a test for awareness of the concepts involved here, there is some prospect that that knowledge will help them to limit any propensity to tell lies. Testing for an appreciation of honesty cannot predict when a lawyer will ‘lie’ or not, but could help that lawyer to anticipate and understand if they habitually make the distinction between the conditionally approved and passive ‘refusal to comment’ and actively deceiving whoever they are dealing with. And this sort of awareness of honesty will deal with a further complication of the honesty–dishonesty confusion. Everyone is occasionally confronted with other more important rationalisations for lying, for example that the lie they propose to tell is justified or necessary to achieve a greater good. The latter type of justification is not related to the trial process but can be ethically ‘valid’ if the rationalisation is conscious and it represents a bona fide attempt to balance, in the circumstances, the harm of the deceit against the ‘good’ to be attained. For example, those who hid Jews from Nazis in WW2 were deceitful, but nearly everyone would now say that those deceits were both necessary and justified. Again, these justified lies are not in issue here, provided the process of justification for these sorts of reasons is conscious. Lawyers today will inappropriately protect a pointless confidence for the sake of a general principle (as in Macumber)52 and lie so that greater harms are not done, for example, to hide the truth of a client’s suicide from his next of kin.53 But some will just lie because a client requires it and it seems ‘easier’ to comply, or because they are mentally ill and will say anything, regardless of consequences. Consider these examples of the sort of questions that a tax lawyer might choose to ask themselves in order to test their appreciation of their own levels of honesty:

52 State v Macumber, 544 P.2d 1084, 1087 (1976). 53 See for example, Adrian Evans ‘Life and Death Matters’, (2008) 82(12) LIJ 76–77.


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r Are there any circumstances (apart from those where confidentiality is specifically r r

r

r

r

sanctioned by conduct rules) where I would remain silent in order to defend or advance my clients’ taxation interests? If so, do those circumstances include the support of my client’s marginally legitimate tax minimisation strategy? Would support of that (marginally legitimate) strategy merely require me to remain silent, or would my client expect me, as a last resort, to actively deceive someone or some institution to keep the detailed strategy private? If my client has disguised income within such a strategy, would I be prepared to deny the existence of that strategy to the tax authorities? Would my answer be different if I was merely asked by the tax authorities if I thought that there were any questionable ethical aspects to the strategy? If I regarded a tax minimisation strategy as marginally legitimate, might it not also be reasonably considered by others as marginally illegitimate? If my integrity is important, what implications would my silence in such circumstances have in the face of the policy behind the tax law? Is it ever just ‘easier’ in acting for certain tax clients to concur with their demand for secrecy, regardless of the tax law?

So there are lies and ‘lies’, and the criticism might be made that it is functionally impossible for a lawyer to define, in any single, complex set of circumstances, an unacceptable lie. To go even further, given the twilight of sanctioned conflict in which lawyers operate daily, how can their honesty and willingness to tell the truth be objectively verified or criticised by any one at any time? Answering this question requires consideration of a central underlying dilemma of lawyers’ ethics: deciding whether truth can exist or not. This question is not just a philosophical diversion that has little to do with concrete efforts to improve lawyers’ ethics. Lawyers must constantly – and, if their understanding of honesty is conscious and acute – decide whether truth as a concept has enough meaning to be useful and what ‘truths’ should prevail, in almost every case they handle. Williams’ discussion of the nature of truth is useful here.54 He restates the existence of truthfulness not just as a goal, but as a present reality and base for ‘meaning’ and warns us not to be too uncomfortable with uncertainty about what can be identified, described and therefore called ‘truth’. Modern society, Williams says, places great value on the notion of truth, from defamation actions to television ‘whodunnits’, to political reputations. He is confident that truth is not as ephemeral as we sometimes contend and that holding others to account for a lack of truth is legitimate, even when greater reliance on truthfulness makes us more sceptical of its existence and whether it can be discovered or pinned down sufficiently for its presence or absence to be identified. Practical realities are demonstrable: thus we can actually take some comfort from the basic truths because, for example, if we order an espresso, we usually get one. And if lawyers agree on a set of facts to allow a trial to proceed, then those facts ‘exist’. This is not flippancy or reductionism. Lawyers must daily determine what facts are accurate so that justice, commerce and relationships can continue. Reality and truthfulness are sufficiently tangible, predictable and 54 Bernard Williams, Truth and Truthfulness: An Essay in Genealogy, Princeton University Press, Princeton, 2002.

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approachable for most purposes and it is not always helpful to seek out the blurred edges. That sort of quest leads to a cul-de-sac and there is a neat trap for those of us who play too much with notions of distrust: Postmodernist writers routinely place the word ‘truth’ in quotation marks . . . .This is itself a dishonest, indeed untruthful, procedure perhaps reflecting the fact that its authors are aware of the awkward paradox that if you do not believe there is such a thing as truth, then you cannot expect anybody to believe anything you are saying yourself is true, including the statement that there is no such thing as truth . . . .authority, in fact, rests on accuracy and sincerity, taking care to establish the truth, and then telling it without dissembling. [We] ‘should resist the comforts of a knowing evasiveness’ [about truth].55

If truth is still as real a concept as ever it was, especially the historical truth or truths which lawyers deal with all the time, then one of the essential criticisms of truth and the willingness to tell it (honesty) – which denies the existence of any [truthful] reference point – is diminished. If this insight is valid, lawyers need to have sufficient psychological tools to resist over-analysis of narratives and evidence in the interests of fulfilling the role of arbiter. Further, as truths remain knowable, then it is still possible to conceive of integrity and therefore of its personification, the ‘ethical lawyer’, including among them the tens of thousands who work in the ethical pressure cookers of the world’s large law firms. Their aspiration to professional ethics is accordingly not a pointless exercise and lawyers are justified not only in seeking the truth but also in being held accountable by other lawyers – that is, by law societies – for its telling. Assessing lawyers’ ethics by testing (among other things) for their sense or awareness of what honesty means to them is accordingly a primary and valid tool for law societies when they seek to take the initiative in strengthening legal professional reputation. And there are other mechanisms to explore.

5.9 Assessing trustworthiness and integrity Assessing the degree to which a lawyer may be trusted, as distinct from merely found to be honest, enters into perhaps the most interesting of the research challenges arising in professional ethics. The terms ‘trust’ and ‘integrity’ certainly go well beyond the narrower concept of honesty discussed earlier. Hiding Jews from Nazis in WW2 was an example of a higher-order honesty equating to trust and integrity. Trust and integrity are also central to the realm of the fiduciary obligation, which for lawyers often involves responsibility for others’ money and secrets and could conceivably involve telling outright lies in certain circumstances. In fact, with such high stakes attached to lawyers’ social role of trust-holder, it might be thought even more important for the profession to develop a method 55 Richard Evans, ‘Against Postmodern Professionalism’, The Australian Financial Review, Sydney, 1 November 2002, 11.


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to assess integrity than to worry too much about testing for a subsumed honesty. However, this ‘either-or’ approach is unnecessary and limiting. It is likely that assessment measures for both honesty and integrity in an individual lawyer will be complementary and ought to be introduced together, since radically different results between tests in a particular lawyer will be pointers for further qualitative inquiry, as well as cause for concern as to test predictability. At the risk of appearing to be too close to the fringe, there is also interesting biochemical research into the development of trust in humans and into the genetic origins of personality which suggests that the reproductive hormone oxytocin is implicated in the growth of trust.56 Sharpe also points to studies which have found that testosterone is present at elevated levels in certain types of lawyers. A 1979 study found that female lawyers’ levels of testosterone were higher than those of female nurses, teachers or athletes,57 and a more recent 1998 study in the United States concluded that ‘ . . . trial lawyers of both sexes were found to have higher testosterone levels than non-trial lawyers’.58 And the exponential growth in the use of psychometric testing by human resources consultants to identify personality risks in the diverse fields of banking, management and the clergy59 suggests that it may not be too much longer before specific genes are identified which code for ‘conscientiousness’, a personality trait which appears to be related to trustworthiness.60 These biochemical references are not recited to provoke faint smiles of disbelief, but rather to indicate that the previously nebulous dimensions of ethical function are turning into a version of reality, much as lawyers’ own special role of fact-finding in the community has long decided social contests about other realities. Quantitative measures of an individual’s potential to be trusted or distrusted will be developed, but are not likely to be adopted by anyone for pre-emptive use with lawyers, although as noted earlier, regulators are already prepared to undertake psychological health assessments of individuals against whom complaints have been made. Many lawyers will naturally resist this commoditisation of trust as dangerous and Orwellian, with unacceptable social risks to legal professional independence, but other sectors of the community already see threshold trust investigation – through personality testing at the point of initial employment – as 56 Paul Zak, an economist and neurologist, has been researching concepts of trust for some time. He has found experimentally that people who are trusted produce more oxytocin, commensurate with the level of trust they experience. (‘That is, oxytocin rises when someone trusts you, and also encourages trustworthiness.’) See Paul J Zak ‘The Neuroeconomics of Trust’ (August 2005). Available at SSRN: at 12 December 2006. See also Ross Gittins, “It’s All About Trust: If Only Economists Could Grasp This Secret’, The Age, Melbourne, 10 December 2003, 15. 57 Sharpe, op cit, n 28, p 13, citing Daicoff, above n 8, p 26, and in turn James M Dabs, Elizabeth Carriere Alford and Julie A Fielden, ‘Trial Lawyers and Testosterone: Blue-Collar Talent in a White-Collar World’, (1998) 28 Journal of Applied Social Psychology 84 at 87–8. 58 Sharpe, ibid. 59 See, for example, Philip J Keddy, Philip Erdberg and Sean D Sammon, ‘The Psychological Assessment of Catholic Clergy and Religious Referred for Residential Treatment’, (1990) 38(3) Pastoral Psychology 147. 60 Adrian Evans, ‘Genetically-Modified Lawyers’, (2004) 78 LIJ 85, citing Graham Lawton, Let’s Get Personal’, New Scientist, Melbourne, 13 September 2003, 30–5; Annabel Day, ‘Job Applicants Go Psycho When Put to the Test’, Australian Financial Review, Sydney, 3 January 2004, 5.

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commonplace.61 Such mechanisms are in effect tests for likely integrity. Thus law firm human relations managers are already routinely testing for personality and psychological stability when they take on new professional staff. In the Melbourne Study, interviewees’ responses to questions about these issues were not, surprisingly, critical of the idea of psychological testing for honesty and integrity. They thought the problems they encountered with some peers were sufficiently serious to merit some response. Rather, they had concerns about accuracy in such testing, although some seemed unaware of their current use at the point of initial employment and potential significance in periodic ethics assessment. Regardless, the existence and availability of these tests is indisputable.

5.10 Psychological testing for integrity In spite of the increasing use of psychological testing within legal circles, such tests retain a taboo, almost cultish reputation and can be used disingenuously, without internal consistency. Woolley has shown for instance that psychological evidence is used quite unpredictably in Canadian hearings of admission applications and could be used far more often to greater effect.62 And in the Melbourne Study (discussed below) interviewees were prepared to use psychological evidence to support or challenge a witness’s evidence, but were uncertain if it had any value in its own right. These inconsistencies point to a wider issue surrounding the difference in professional responses to lawyers’ unsatisfactory performance. For example, while lawyers’ incompetence is routinely and openly discussed – with risk management for negligence now normalised because ‘everyone makes mistakes’ – the cultural preference is to keep moral failure under the covers wherever possible. Discussion of lawyers’ moral lapses is still mostly surreptitious and a matter only of somewhat furtive regret, rather than prevention or minimisation. The common but incorrect view is that moral (ethical) lapses cannot be anticipated in any real way and apart from fidelity claims (for theft of trust account funds), there are no automatic client or community compensation schemes for lawyers’ moral failure.63 61 Lawyers’ likely reluctance to agree that such matters can be objectively assessed does not just arise from the inherent scepticism of their occupation. Perceived negative experiences with differing psychological assessments provided by witnesses on opposite sides in litigation tends to fuel a widespread lack of confidence in the accuracy and impartiality of all psychological testing. Such caution continues despite steady progress asserted by other professionals – principally psychologists – in their ability to mitigate variation and deliver accuracy. Industrial psychologist Kevin Chandler has commented on psychological testing in the entrepreneurial arena. He believes it is possible to measure venture capitalists’ potential to succeed by checking their personality profile. See Australian Broadcasting Commission, ‘Psychological Testing for Jobs’, AM Archive, 17 August 1999, <www.abc.net.au/am/stories/s44309.htm> at 12 June 2010. Personality tests work by evaluating trends in responses to groups of questions. Scores are comparative with the object being to rate tested individuals against those known to excel. 62 Woolley, op cit, n 7, pp 50–1. 63 In some jurisdictions compensation is in effect payable for a lawyer’s misconduct that results in a client’s financial loss, but such payments flow from parallel quasi-civil proceedings and might not be a consequence of a formal finding of misconduct against the lawyer.


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Additionally, lawyers’ strong human rights orientation predisposes them to caution about psychological insights because of the potential for psychological opinion to help governments prosecute disaffected citizens,64 not to mention the more commonplace potential of such evidence to sway a jury unreasonably on a personal injury claim or in a defence to homicide. And while the potential for mistaken psychological assessments as well as more-or-less genuine differences of opinion about any intangible phenomena unsettles lawyers, there is also a degree of apprehension based on a persistent discomfort of psychological processes. Even the very benign Myers-Briggs Type Indicator (MBTI) and Enneagram profiling processes65 can provoke suspicion among those with no formal training in psychology as a discipline and little first-hand experience of its use. The sum of these concerns and inconsistencies does not however diminish the importance of psychological techniques to improving lawyers’ ethical behaviour. Caution is justified, but not immobility. The potential of specific approaches to self-explore values and ethical types66 is considered in Chapter 7. These protocols include a prototype instrument to rate self-awareness of legal ethical type, in the sense discussed in Chapter 3. If adopted, such instruments would only bring the profession up to the level already under active exploration in other disciplines. Within the fields of organisational psychology and management assessment much work has been done with instruments such as the Multifactor Leadership Questionnaire (MLQ) to explore the character of ethical leadership.67 Empirical methods of assessing ‘character’ as a component of leadership are also much explored.68 Further, scales have been developed to gauge the perceived integrity of leaders (by their employees) in managerial contexts, commonly utilising the so-called 360-degree assessment instrument.69 This last, indirect approach to assessing integrity does not of course allow honesty or integrity to be rated from interviewees’ own answers to a questionnaire, but the 360-degree technique is really one that allows others’ views of someone’s reputation to be quantified. It is also easily transferable to legal practitioners, particularly those in large firms 64 As occurred in Soviet-era persecution of Russian intellectuals. See in particular Aleksandr I Solzhenitsyn, The Gulag Archipelago, 1918–1956: An Experiment in Literary Investigation (Vol 1), Harper & Row, New York, 1973. 65 See Peters and Peters, n 20 and accompanying text. Also see Enneagram, op cit, n 23. 66 For example, see Adrian Evans, ‘Teach Values, Not Just Rules’, Lawyers Weekly, Sydney, 28 October 2005, 15. 67 See, for example, Ray H Elliott, ‘Ethical Leadership and Business Culture: Transformational Pathways Within Boards and Management for Enhanced Integrity, Trust and Organisational Actualisation’, Paper presented to the Third World Congress: International Society of Business, Economics and Ethics, 14–17 July, 2004, Melbourne (unpublished), at <www.conferences.unimelb.edu.au/ISBEECongress/Bios/Ray% 20Elliott%20%200EC.pdf> at 10 June 2010. 68 See, for example, James Sarros and Brian Cooper, ‘Building Character: A Leadership Essential’ (2006) 21 Journal of Business and Psychology 1. A survey of recent research around the intersection of ‘character’ and ‘leadership’ appears in Stephen D Reicher, Michael J Platow and S Alexander Haslam, ‘The New Psychology of Leadership’, Scientific American, 31 July 2007, at <www.scientificamerican.com/article.cfm?id= the-new-psychology-of-leadership> at 13 May 2009. ‘Good leadership does not mean applying universal rules of behavior but rather understanding the group to be led and the types of actions it esteems and considers legitimate.’ 69 See, for example, Ken Parry and Sarah Proctor-Thomson, ‘Perceived Integrity of Transformational Leaders in Organisational Settings’ (2002) 35 Journal of Business Ethics 75; SB Craig and SB Gustafson, ‘Perceived Leader Integrity Scale: An Instrument for Assessing Employee Perceptions of Leader Integrity (1998) 9 The Leadership Quarterly 127.

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which incorporate, list on the stock exchange and become subject to ethical infrastructure requirements and directors’ social responsibility obligations now under consideration within corporate law environments. Development of a reliable and valid scale to specifically measure an individual lawyer’s propensity for integrity has not yet been attempted, probably because the task will require a multifaceted research team with considerable financial investment. This book does not propose such development because of its potential for manipulation of lawyers’ autonomy and independence. However, this does not mean that this work will not occur, perhaps in the near future. It is tempting to speculate that, in the present security-conscious world, clandestine work on scale development for integrity is underway in government agencies as an adjunct to interrogation techniques, but such work is not published and even if it were, the researchers involved would invite discredit because of their inability to deal convincingly with the many ethical issues involved in secretive research. Nevertheless, it was considered useful to know what interviewees’ reactions would be to such testing, in anticipation of the development of such measures. Their reactions were mixed.

5.10.1 Opinions of interviewees The tree display in Figure 5.3, opposite, sets out key responses by interviewees.

5.10.2 Observations on and interpretation of ‘psychological testing for honesty and integrity’ Needless to say, there was also a strong view that, no matter the urgency of the situation, any psychological testing initiatives were too oppressive. Civil liberties were cited as the chief reason for opposing such testing. One interviewee said such testing had been discussed many years ago in a specialist accreditation context and rejected: I don’t like psych tests and I’d never use them or rely on them and I’d hate it if they ever came in. I’m aware that some firms are starting to use them but it’s the same concept as doing a test on your DNA to name the illness from which you will ultimately die, on the day you’re born; maybe that’s an extreme case, but should they be able to do it? Should I be able to do a test on you as an articled clerk that will have a permanent effect on your future? Maybe you’re just having an off day, maybe you’re young and stupid and you’ll just grow up after you’ve had more experience?70

Others reverted to the accuracy issue, adding in the presumption of innocence: ‘they are not accurate I don’t think and wouldn’t be fair. You have to do it the time honoured way, that is, until it’s proved that someone is dishonest, you have to assume they are honest . . . it’s prejudicial to the lawyer, a natural justice issue,’71 70 Extract from interview with accredited specialist AC29, Melbourne. 71 ibid, AC1, Melbourne.


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Psychological Testing for Honesty and Integrity Integrity is essential, but how to test for it? ‘I regard honesty and integrity as absolutely essential, my number 1 ranking, but I don’t know what to do to test it apart from checking on the disciplinary record.’ ‘… it would be great if all lawyers were tested for this.’ ‘… some of those I know who are accredited seem to get away with it for so long.’ ‘...I think honesty and integrity and ability to communicate, etc., is almost twice as important as your knowledge of the law. I’m not saying that you don’t need to be knowledgeable, but …’ ‘… the money side of things with clients in my area, personal injuries, is crucially important.’ ‘… you can sell it because of the huge number of younger lawyers coming along.’ ‘… a test should go further than just integrity issues … pressure, stress, inability to cope, whatever, might need to be tested regularly as well. There was a person in the disciplinary notice, someone who has to go undergo 6 months of psychological therapy – at least they are picking that up.’

‘All my big ethical brawls have been with blokes’ ‘I think males are slower to admit they are wrong [not slower to see ethical issues] But, integrity is not accurately testable ‘… in this sort of work, I see one psychologist who gives opinion x and another one sees the same person and gives opinion y, so this sort of test would not be seen as credible – you can’t objectively assess it – it’s assessed by your day-to-day conduct and by the people you deal with – people get to know you and they’ll talk about it.’ ‘… if [this testing] became part of the assessment, you can bet your bottom dollar that you [could] buy books on how to do them.’ ‘… I don’t know how you’d fund it and I have a deep-seated problem with psychologists – who’s going to measure it and test it etc?’ And ‘… some clients want a killer’ ‘I’m happy with my collaborative approach … but some clients need a head kicker. I’m not sure that we want a homogenous practitioner who has their rating on their door – so much for aggression, so much for communication, so much for honesty.’

Figure 5.3: Tree display of psychological testing for honesty and integrity

or wished to draw a distinction between private and professional dishonesty: ‘I don’t like that, that’s really quite subjective and I might, for instance, have six or eight affairs in my private life but does that really impact on how good a criminal lawyer I am and whether I am an honest criminal lawyer with integrity?’72 The possibility that a perverse private life will never pollute a lawyer’s professional life; that one can be psychologically isolated from the other without any fallout, 72 ibid, AC14, Melbourne.

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seems na¨ıve to modern ears, especially those who have observed the progressive decline of the formerly eminent lawyers catalogued in Chapter 2. There was very little protest about the premise of unsatisfactory integrity within the profession and therefore quite a lot of effort, from those who were unhappy with testing, to come up with alternative means of ameliorating the negative social impact of lawyers’ moral failures. The most common involved the assessment of integrity via an initial interview at the time of job application (although even that was not seen as measurement: ‘reputation is what we look at currently, via self-nominated referees, but reputation is not measured, as such’)73 and discernment of integrity through answers to exam questions. Qualitative integrity assessment through an employment interview and selfnominated referees, involving a range of partners and associates sitting around an applicant and forming intuitive impressions from answers to questions, is unlikely to be any more or less accurate than a developed psychological assessment, but interviewees were clearly more comfortable with the interview process, perhaps because it would be in their hands. The option of combined interview and psychological assessment, now beginning to emerge in sensitive workplace environments,74 might combine the best of both approaches, but was unfortunately not explored, in part because the associations now under discussion were not as clear during the interview process as they became during the later analytical phase. Assessing ‘exam questions’ are of course a part of both law school ethics assessment and psychological testing, but interviewees were referring only to the traditional qualitative process of exam marking, not the quantitative scoring process in scaled questionnaires used by psychologists. Here again, the reality that examination assessment is an equally qualitative exercise did not occur to interviewees, who were perhaps more concerned to put up some or any other process of integrity assessment that did not have the flavour or reputation of mind control. Another fairly optimistic approach to dealing with the integrity issue was to eschew any preventative assessment or testing of someone and wait until dishonesty or compromised integrity emerges, then simply ‘talk it over’ and hope for the best: I mean, we recognise that everybody will have a black hole – a lot of problems emanate from the individual black hole – I mean, in this firm, if someone is having a particular problem with a client, a personal black hole that is brewing, we have a very informal system where we all sit down and have a chat about it. [This] assumes the work environment is going to be similarly sympathetic, [but] it does not help in a 73 ibid, AC25, Melbourne. 74 For example, the General Synod of the Anglican Church in Brisbane, consequent on recent child protection scandals involving the church in Queensland, will introduce a selection process for clergy candidates – a ‘safe ministry check’ – which combines administration of a psychological instrument and a follow-up interview by a psychologist, before such candidates are confirmed for entry to the Anglican ministry in Brisbane. Interview with Rod McLary, Director Professional Standards, Anglican Diocese of Brisbane, 15 February 2007. It does not seem too outrageous to suggest that both lawyers and clergy are in constant contact with vulnerable individuals.


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harassed sole practitioner, or an overworked two-person partnership or a large firm where someone does not want to fess up. I don’t know where the answer lies. The [Law Institute] does have an advisory service, but people have been a bit reluctant to use it.75

Agreement was present, however, that any process of psychological testing, should a reliable technique emerge, was appropriate for all lawyers, not just specialists: ‘I would have thought it’s . . . an idea for all of us. Well, older drivers have to go through a fitness test every three years. I have no problem with all of us going through’,76 and would not be appropriate until after some exposure by the lawyer to the practice environment. In other words, although such an assessment would not be time dependent and could be administered at the time of admission to practice, the intuition of interviewees was that that was just too early to attempt at admission.

5.10.3 Summary of interpretation: Psychological testing for honesty and integrity The reactions of those who were apprehensive of psychological testing because of its current perceived inaccuracies (and potential to oppress) were unsurprising and, of course, far from irrelevant. However, the support for such testing, not just to support honesty and integrity but also to deal in some way with various mental health issues, was surprising. The degree of stress which many practitioners experience is (anecdotally), well-known: but to hear that there was enough concern to want to consider psychological processes to prevent or limit both stress and dishonesty was, somewhat perversely, encouraging. Despite the future possibilities of psychological testing77 as one means of limiting dishonesty and lack of integrity in lawyers (whether specialists or general practitioners), it is fair to say that the Victorian profession as a whole was too wary of the negative possibilities of quantitative testing to voluntarily give up, on a uniform basis, its traditional reliance on the standard job interview. The fact that the many case studies of lawyer and law firm failure make it clear that practices within the law firm are patently implicated in misbehaviour (rather than experiences acquired beforehand, upon which an employment interview is of necessity based), was an unnoticed inconsistency. The observation of several interviewees that clients might also prefer, in fact ‘need’ a lawyer who was prepared to bend ethical rules – in other words, whose integrity would be a barrier to their representative role – was extremely candid78 and revealing, begging the research question succinctly. It is almost possible to justify introduction of some psychological approach to measuring honesty and integrity because of such admissions. The socio-legal history touched on 75 76 77 78

Extract from interview with accredited specialist AC13, Melbourne. ibid, AC23, Melbourne. See above in this chapter, Sections 5.9, 5.10. Providing, incidentally, some unintended validation of the efficacy of the interviews for research purposes.

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in Chapters 1 and 2 chronicled cases where the best lawyers were regarded as those zealots who treated clients as gods, but opponents and community interests essentially as utilitarian tools.79 Examples of this alleged priority are so numerous that judicial notice might almost be taken of the phenomena.80 It is no surprise that interviewees are aware of this perceived market demand and confirms the relevance of integrity issues as core elements of legal ethics. There is a possibility that some firms, given a choice, would prefer to assess integrity with an interview process rather than use psychological testing so that they can recruit only those future lawyers with their preferred mix of intelligence and values. Hypothetically speaking, because psychological testing can put numbers on concepts and allow more comparative judgments about potential employees, its use would force the typical law firm human relations partner to consider the possibility that ‘X has potential deficiencies in relation to ethical behaviour.’ And it might be too challenging for the firm’s culture if that partner also enquired as to what ethical behaviour might mean in a particular individual. In other words, unexplored psychological territory might simply be less troublesome to such firms. Introduction of testing is already occurring at the pre-employment level, as one interviewee acknowledged, but resistance to this pre-emptive strategy to deal with inadequate honesty and integrity is strong. Despite the serious, even passionate support for the concept of psychological testing by some interviewees, the potential for the Victorian (or any other) profession to officially encourage such testing as a norm (or enquire into its potential), either at initial employment or sometime after admission, is presently zero and likely to remain so. But the costs of professional inactivity are also progressively rising. Internationally, law societies and bar associations with regulatory obligations are progressively losing those roles to varying degrees as they are perceived by governments to be insufficiently on the front foot in promoting ethical lawyering. As the issue of accuracy in psychological testing is progressively neutralised by research progress or awareness that the alternatives might have no greater claim to accuracy, pervasive concerns for human rights and for the avoidance of prejudgment, on any basis, might seem less urgent than the need of the profession to take control of misbehavers. If the issues of the independence and autonomy of the profession could be addressed, ‘taking control’ would involve a rebuilding of the ‘social capital’ of the profession in order to keep market share in the face of others’ encroachments. And this social capitalisation through psychological testing could occur among individual law firms in advance of law societies’ more formal acceptance. As testing becomes available, those firms that did seek to choose employees and advance associates having regard in part to their tested integrity, would presumably do so because of their own values. Their judgment would be that 79 See, for example, Chapter 1, n 10 and following, which refers to the McCabe case and n 15, which referred to the James Hardie matter. 80 Of course, footnotes are still required. See, for example, the queries raised by an Australian Federal Court judge about the possible integrity of legal advisers in relation to Australian national media litigation: Elisabeth Sexton, ‘Judge Queries News Publication in Damages Case’, The Age, Business, Melbourne, 17 November 2005, 3.


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their clients needed more of a balance between the collaborative lawyer and the exterminating variety. Then perhaps, there would be some more active consideration given to asserting superior ethical standards as a marketing strategy. But all this is too speculative at present. Even the niche firm which asserted to the market that ‘our firm is testing for superior integrity’, hoping to create a premium for integrity and some competitive advantage over other firms, is unlikely to be able to answer those who say that development of direct testing for integrity in lawyers, whether conventionally based on questionnaires or reliant on neurological techniques, is a tool of unacceptable social control of the profession. Accordingly, other persons’ qualitative assessment of a lawyer’s reputation is as close as anyone is likely to get in assessing integrity in lawyers.

5.11 Recommendations: Assessing psychological preparedness for legal practice The research methods utilised to discover practitioners’ opinions in the Melbourne Study were limited by cost considerations. A larger study using more extensive quantitative methods might have achieved different results. Such studies will be necessary in jurisdictions contemplating changes such as those discussed in this book, if only because each legal culture will have unique effects on responses. But a particular result of the Melbourne Study gives some credence to the accuracy of the results reported here, insofar as they reflected the local environment: the congruence between the views of professional leaders and those of all the experienced lawyers interviewed. Both groups agreed that issues of competence and credible ethics were of central importance to professionalism, reflecting a synergy that supported the validity of the survey design. While the suggestions that emerge from the issues discussed in this chapter are limited in number, they do represent fundamentals upon which much of the more specific recommendations of later chapters are grounded. Despite the lack of a professional consensus in the Melbourne Study that a psychological approach to encouraging better behaviour is appropriate – and suggestions that attempts to psychologically assess legal practitioners’ honesty and integrity would be resisted – law societies that adopt the conservative recommendations below may well find themselves pleased by positive outcomes over time. These recommendations are preceded by the assertion that lawyers’ attitude to pro bono publico is an important indicator of their true sense of professionalism, precisely because pro bono takes lawyers completely outside the comfort zone of chargeable time and into something essentially optional.81 The specific recommendations which emerge from this part of the Melbourne Study are therefore: 81 Where pro bono work is allied to a larger firm obtaining government legal contracts (as in Victoria, Australia, see also n 4 above), it may not be strictly optional and the pro bono ‘contribution’ becomes blurred with the firm’s marketing strategy. However, individuals within such firms are still likely to have a chance to decline pro bono opportunities if they wish.

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It is counter-productive to compel and assess lawyers’ pro bono contributions because of the effect on the quality of service. Compulsion would also deny lawyers’ choice to contribute and eventually undermine the entire concept. However, there remains a real case for assessing attitudes to pro bono or community service (as distinct from whether those attitudes are acted on in any particular manner), through questionnaire and peer interview. Positive outcomes flowing from lawyers’ individual awareness of their psychological ‘type’ are sufficient for law societies to implement psychologicaltype testing according to agreed frameworks (for example, the MBTI) as a part of a wider effort to encourage and support lawyers’ honesty and integrity. Law societies will also build a strengthened ethical framework for the profession if they assess lawyers’ ethics by testing for a limited sense of honesty. Such assessment is not addressed by the inherently negative (though necessary) admission process, but through a question-and-answer process that identifies for lawyers how accurate they are in distinguishing between professionally sanctioned silence and outright lies; that is, for their awareness of what honesty actually means to them. Law societies should assess lawyers’ ethics by testing for their sense of integrity with existing techniques such as 360-degree assessments that measure other opinions as to an individual’s integrity. However, individual practitioners may wish to ask themselves some of the questions that conclude this chapter in order to self-assess their understanding of integrity. It is likely that test measures for both honesty and integrity in an individual lawyer will be complementary and ought to be introduced together as some confirmation of test predictability, since radically different results between tests in a particular lawyer will indicate a need for further qualitative enquiry.

5.12 Possible questions for practitioners about trust and integrity issues These questions are intended to be helpful in assisting practitioners to decide if they are justified in a self-finding of general trustworthiness, in their approach to legal practice. If they were also to be used by a law society interviewing committee or among an informal group of peers, the essential preconditions would normally be that practitioners engage in the Q&A exercise with fully informed consent as to: the intent to pose self-educational, awareness-raising questions and ● concepts,


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the lack of any disciplinary, regulatory or other consequences attaching to the exercise, and the confidentiality of the process. ● These questions are phrased in general terms, devoid of context, in order to make it more difficult for responses that deflect the question by asserting ‘it depends on the facts, etc.’ Even if precise answers do depend on the facts in many instances, the process of abstraction to a general position is healthy and useful. If dealt with individually, these questions will provoke relatively little useful information, but if answers and follow-up questions are considered as a whole, that whole is likely to disclose patterns that are greater than the sum of the parts and will contribute to making an overall judgment about likely trustworthiness and integrity. This is true whether the practitioner undertakes the process alone and privately, or with an informal group of peers or more formally (though still confidentially), with the assistance of a law society interview committee. Nevertheless, it is likely that the degree of an individual’s heightened awareness will be greater if this process occurs with the assistance of others, because of the better capacity to explore dissonance in responses when more than one mind is involved. Speaking hypothetically, if your clients were talking among themselves ● about your professionalism, what do you think they would emphasise? Do you think that a sense of ‘values’ can be one of the key ingredients ● in determining the baseline for professionalism? If so, which values are important? Is there a general ‘lawyer personality’? If so, please describe it. ● What sort of values lie behind this personality (if it exists)? ● Do you think the term ‘personal values’ means much for lawyers? ● How would you rate each of hope, humanity, humility and humour as ● indicators of all-round moral worth in a lawyer? Would you consider that it is easy for a lawyer to balance an assertive ● temperament with a caring attitude to clients and peers? In assessing values as a part of professionalism, would it be reasonable to ● compare ‘home’ and ‘office’ values? What might the differences be between these sets of values, insofar as a lawyer in concerned? Do you think some lawyers experience a sense of moral transition when ● moving from home to office and vice versa? Consider this quote: ‘It might be said that the one thing that law students ● are never taught is how to cope with conflict and the profession suffers the consequences.’ Would it be useful for new lawyers to know how to cope adequately with personal conflict? What impact should a lawyer’s financial solvency have on their ability to ● hold a practising certificate, if any? What behaviours have you witnessed which you consider to be unprofes● sional, and why? Should lawyers (as for example, medical practitioners) be subject to any ● Hippocratic-like obligation to ‘do no harm’? ●

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As far as you know, do your peers practice law without thinking about ethics too much? How do you react when you hear discussion about ‘professional values’? What (if anything) have ‘spiritual values’ got to do with most lawyers’ approach to legal practice? Is it still possible to talk about a shared moral basis for legal professionalism? Do lawyers need to be a ‘good people’ to truly practise law – in the sense of persons who strive ‘to do good’ or be virtuous in all their interactions? What do you really care about, as a person, and not just as a lawyer? (partner, work, children, sport, money?) Do these cares ever take priority over your professional decisions? Do you think that clients have trust in their lawyers? Do lawyers have trust in their clients? Do you find yourself lying to your clients or colleagues from time to time? How important is it to your clients that they have a sense of a personal relationship with you? Have you ever needed to say ‘no’ to a client, but found it difficult to say so? In what sort of circumstances have you had to say ‘no’ to a client? Is it unrealistic to say ‘no’ too often?

6 Developing character Disciplinary histories and clients’ assessments

6.1 The relevance of the past Should a lawyer’s disciplinary history be taken into account for purposes of developing their character and ensuring their continuing licensure? Or is the past the past and irrelevant to the issue of their periodic practising certificate? And what of clients’ views about their lawyers’ character, specifically their sense of ethics? Past histories have always had a minor role in lawyers’ ethics, but clients’ opinions have always been seen as too unreliable. Nevertheless, both mechanisms could promote lawyers’ improved character well beyond presently accepted norms. If it is accepted that continuing licensure of all lawyers is not a mere formality; for example, when a regulator seeks evidence of adequate mental health after a complaint or report is received, then it is logical to also consider whether ongoing disciplinary problems should be taken into account when re-licensing. The majority of lawyers in most countries will not have these problems, but there is a smaller group in most jurisdictions who have one or two minor offences every year or so, and an even smaller cohort who are repeatedly prosecuted by their law societies (or other regulator) and who do not appear to learn quickly from these encounters: in particular, those who fail to answer regulator requests for information when complaints are made or who have repeated problems with trust account verification. These lawyers are likely to benefit from some sort of remedial attention before their minor problems become major. Members of the poorly performing minority (together with those who are repeatedly sanctioned for overcharging, for delay or incivility), can progressively display disorganisation and neglect of their clients’ interests, sometimes leading

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to arrogance and even criminality. All of this reflects badly on them and exposes the profession to continuing hostility. Although few of these ‘qualities’ should automatically disentitle a lawyer to continue practising, it is reasonable for law societies to act before regulators and approach them with an offer to assist in dealing with their obvious problems. The possibility that ongoing disciplinary problems might become relevant to periodic re-licensing is not particularly surprising and was generally endorsed by interviewees in the Melbourne Study. However, if such histories were to be relevant to re-licensing, then lawyers must have access to better tools to help them improve their ethical choices and resilience. Put simply, it would be unfair to increase lawyers’ exposure to annual or biennial censure without also improving their training. In addition to becoming better aware through the continuing legal education (CLE) process of the mental health risks of legal practice, they could benefit from an understanding of ethical methods, types and complexity and of the importance of judgment in decision making. The discussion in Chapter 3 asserted that virtue ethics, properly understood, would particularly help to identify a lawyer’s character traits that might be important to their future conduct. Woolley makes the point in this way: . . . with respect to the continuing relevance of broader character traits to the determination of conduct, virtue ethics gives far greater scope to situational variation in behaviour than its social psychology based critics acknowledge. Virtue ethics acknowledges that making decisions about how to act always requires judgment, and that judgment requires factoring in information about the situation one is confronting and about how a particular virtue should be measured against others in those circumstances. Thus, while one may judge the participants in Milgram’s notorious experiment as having made a faulty decision when choosing (apparently) to administer electric shocks to participants, that decision may have been consistent with virtues such as ‘respect for authority, trust, honouring commitments (fidelity), and appreciation of (the value) of knowledge. It does not demonstrate that there is no such thing as a virtue of compassion which motivates the decisions of those who possess it.’ . . . It appears, then, that when considering both virtue ethics and social psychology it is fair to say that character plays a role in predicting conduct. However, it is also the case that the circumstances and context of ethical decisions, whether because they affect the exercise of judgment about what the virtues require, or because they have an independent influence on human behaviour, are highly significant in affecting ethical decisions.1

If a lawyer’s disciplinary history over the previous licensing period is to be routinely referred to each time they seek re-licensing, then it is only fair that they will also have been in receipt over the same period of ongoing ethics education which has placed an emphasis on virtuous ethical characterisation in decision making. Virtue ethics analysis allows for the situation and for circumstances far more than any other ethical method and is highly likely to improve behaviours if 1 Alice Woolley, ‘Tending the Bar: The “Good Character” Requirement for Law Society Admission’ (2007) 30 Dalhousie LJ, p 66.

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its principles are properly taught and encouraged within the CLE or continuing professional development (CPD) environment. Access to the virtue reasoning process ought to be normalised before continuing adverse histories are considered as a part of the re-licensing process. On the other side of the ethics development coin are the re-licensing consequences. If some lawyers are not able to improve and learn from their appearances before disciplinary tribunals, then more or less automatic re-licensing ought to be reviewed, though always on a case-by-case basis. In the Melbourne Study, the focus was on regulator rather than law society use of past disciplinary information because of the likelihood that interviewees would take this issue more seriously with a regulator in the back of their mind. Interviewees were more likely to reflect fully on the consequences of their responses because of the real potential of the local regulator (the Legal Services Board, as opposed to the representative body, the Law Institute) to ask government for legislative change to make an impact on re-licensing. But that research constraint does not mean that interviewees would think a law society should have no functions here. The Institute, or other law societies in other jurisdictions, are not prevented in any way from seeking information from the regulator for the purpose of organising preventative re-education for disciplinary re-offenders, in the manner outlined above.

6.2 Disclosable prior offences in Victoria The Melbourne Study asked specialist lawyers for their opinions on ethics assessment for the reasons set out on Chapter 5. One of the issues canvassed concerned interviewees’ status as specialists. The hypothetical relevance of their own disciplinary histories to their specialist status has significance for the much larger group of general practitioners in most jurisdictions. In the case of specialist accreditation as currently organised in Victoria, the disciplinary history of a candidate for accreditation may remain unknown to the advisory committee which assesses applications for such accreditation.2 While the occurrence of specific events such as a tax offence, insolvency or an indictable offence must be disclosed as ‘show-cause’ events by accredited specialists when annually renewing their (general) practising certificates,3 the existence of any other disciplinary history – including disciplinary findings related to overcharging – need only be raised by a specialist when they renew their practising certificate if they think they could infringe a ‘fit and proper person’ test.4 The onus and choice about 2 An advisory committee may and presumably does enquire into an applicant’s disciplinary history (see Law Institute of Victoria, Specialisation Scheme Rules (effective 16 February 2006) [4.6.6] <www.liv.asn.au/ members/specialists/forms/20060208specrule.pdf≥ at 13 December 2006), but an applicant is not expressly required to provide full details of any disciplinary history on their application. 3 Legal Profession Act (Vic) 2004, s 2.4.26. 4 ibid, s 2.4.4. The following matters are expressed by the Act to be relevant to a ‘fit and proper’ person status under s 2.4.4: (a) whether the person obtained an Australian practising certificate because of incorrect or misleading information; (b) whether the person has contravened a condition of an Australian practising

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disclosure remains with the individual lawyer, very much in the same way as a candidate for admission to (general) practice decides for themselves if they will mention something in their past that might be important for their fitness and propriety for general practice. General practitioners who suffer a disciplinary finding face only a limited barrier5 to automatic renewal of their practising certificates at the end of the year, their penalties – if any – being currently considered sufficient sanction for their offences. As yet there are no locally decided cases on the meaning of ‘fit and proper person’ in the specialist context, although it is clear that the existence of a history per se is not automatically relevant to ‘fit and proper’ status.6 Additionally, while a current specialist is obliged to provide details of any conduct-related findings immediately to the Specialisation Board, that Board itself relies on that obligation and does not automatically check renewal applicants’ histories with the complaints regulator (the Legal Services Commissioner), at the time of those applications.7 It is unclear why specialisation schemes do not go the extra distance and independently check all applicants’ histories, but the reason is presumably to do with the competence-bias of accreditation. Ethics, if they were thought about at all, were taken for granted in a candidate for specialist status and regarded as unnecessary to investigate. It is suggested that the implicit value here was and is very much one of ‘only the better lawyers will seek accreditation and their ethics are unlikely to be a problem’. Interviewees in the Melbourne Study were asked about the availability of disciplinary histories for regulators’ re-licensing purposes, in the context of their elite status. Their opinions were sought in the context of wider risks and gains. For these lawyers, the gains included the availability of more information for both representative and regulatory decision-makers, which might be good in itself, but the costs were also on their minds, including those caused by greater investigatory expense. They were also concerned by the routine exposure of all lawyers to potentially arbitrary administrative decision-making for arguably not much benefit, given that past history is not a certain predictor of future behaviour.8

certificate held by the person; (c) whether the person has contravened this Act or a corresponding law; (d) whether the person has contravened – (i) an order of the Tribunal; or (ii) an order of a corresponding disciplinary body or of another court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body; (e) without limiting any other paragraph – (i) whether the person has failed to pay a required contribution or levy to the Fidelity Fund; or (ii) whether the person has contravened a requirement of this Act or the regulations, or imposed by the Board or the Liability Committee, about professional indemnity insurance; or (iii) whether the person has failed to pay other costs or expenses for which the person is liable under this Act or the regulations; (f) any other matter the Board thinks appropriate. 5 As with accredited specialists, general practitioners must raise ‘show-cause’ events and events which might be considered to affect their ‘fit and proper’ status, but the Act does not require the reporting of all disciplinary events, just those which have involved a failure to comply with a disciplinary order. See Legal Profession Act (Vic) 2004, s 2.4.4(1)(d). 6 See Legal Profession Act (Vic) 2004, s 2.4.4(1)(d), which imposes an obligation to raise only a failure to comply with an order in a disciplinary matter. 7 Specialisation Scheme Rules, op cit, para 4.6.7. 8 Though a past disciplinary history makes poor future behaviour more likely; hence its inclusion in the re-licensing process.


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It was also of real importance to interviewees to know what might be a sufficient past history to justify inclusion in an annual licensing application, or would everything have to be reported, leading to greater risk of non-cooperation? On balance, interviewees were prepared to acknowledge some relationship between some histories, some lawyer personalities and some practice profiles, all of which could add to the chances of repetitive misbehaviour. They were prepared to concede the possibility of such connections, or at least enough of a connection to agree with periodic disclosure, if the information were dealt with fairly. It was not suggested to interviewees that candidates for accreditation or general practitioners should incur some automatic extra burden because of an adverse disciplinary history. But the importance of periodic review of ‘fitness to practice’ was at the centre of enquiries. Accordingly, interviewees were asked if a disciplinary history ought to be relevant to reaccreditation and re-licensing and if so, on what ongoing basis. The following Figure 6.1 sets out interviewees’ secondary themes in relation to this primary theme.

6.2.1 Opinions of interviewees The central difference of opinion here was whether a disciplinary history should in some way affect all practitioners rather than just specialists. On the one hand, the notion that specialists ought not to admit members with disciplinary histories seemed straightforward, but the main objection to this strategy is that ethics are a baseline professional element – for all practitioners – and disciplinary histories are at least relevant to potential ethical behaviour. Both perspectives are valid, however, they need not be mutually exclusive. There was agreement that the introduction of a requirement for an acceptable (minor) disciplinary history as a basis for considering specialist accreditation could pave the way for a similar process in relation to the annual review by a regulator of general practitioners’ practising certificates. If that judgment is correct, the question arises as to what in a disciplinary history should be assessed, and how to assess it, in all lawyers?

6.2.2 Observations and interpretation of ‘relevance of disciplinary history’: The referee option Interviewees considered that referees might be used by practitioners to establish appropriate ethical suitability to continue in practice. Referees do have the huge virtue of affordability and are culturally well-understood in all jurisdictions. But the referee system usually involves a practitioner having some, often the only input, into the identity of the referee and the potential for ‘favours’ – especially if referees are the only means of assessing ongoing ethics – seems too great. The use of referees provides no structural basis to objectively assess the ethical suitability of someone because the referee’s identity is known to the candidate. Contrast

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Relevance of Disciplinary History Yes, a prior history is relevant to accreditation ‘... applicants should be required to disclose formal disciplinary findings [not complaints] ... It’s so easy for a client to complain and a very major process for us to justify what we’ ve done - therefore a lot of complaints doesn’t mean much.’ ‘... I was reprimanded once so I think it should be not just one event – if you are going to have some higher level of disqualification process, then you should have some short of appeal process and some sort of discretion.’ ‘Disciplinary history should have an effect on your accreditation – I mean you don’t need to be accredited to practise law, but if you’ ve got a questionable (proven) conduct history, then perhaps you are not a suitable person to be put forward by the profession as a specialist, because although you might know your stuff, is that all an accredited specialist should be? – [you’re] just someone who knows the law?’

No, a disciplinary history is irrelevant to specialists alone, but [this issue] is relevant to the whole profession

‘ Wow, that would push some people out ... but the problem is that the sort of person who would be undesirable as a specialist because of a past record would probably not care two hoots whether they were accredited or not.’ ‘ ... It’s about whether they should be a lawyer at all, not so much whether they should be a specialist.’ ‘ No – I don’t think the public picks up a distinction between the specialist as an honest lawyer and a GP lawyer as a dud lawyer.’ ‘ ... but you get a truer reading if at the end of each 5 years [of general practice], to get your practising certificate renewed, you’ d get referees because those things give a fairer indication of who’ s doing the right thing.’

An adverse history should not be an absolute bar ‘ ... not a blanket rule of exclusion is correct – [but generally] if accreditation is to be given serious status in the profession, then it is appropriate not to have someone in with a bad prior record.’

Figure 6.1: Tree display of relevance of disciplinary history

this criticism with the Ontario specialist accreditation process, which has some advantages over the common approach to referees. As well as requiring the provision of the names of four to six referees, the names of all Ontario applicants are listed in the Ontario Reports and other practitioners have an opportunity to submit opinions as to their competence in the 30 days following publication.9 The identities of the practitioners providing these comments are confidential but the applicant is provided with a composite summary of their comments. 9 Inge Lauw, ‘Specialisation, Accreditation and the Legal Profession in Australia and Canada’ (1994) 1(2) Murdoch University Electronic Journal of Law <www.murdoch.edu.au/elawissues/vin2/laow12.html> at 12 June 2010.


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While the Ontario system reduces the potential for subversion of the referee process, it does not completely dispose of that possibility. Referees are certainly affordable but on any basis are insufficiently independent of the subject lawyer. Accordingly, the views of interviewees as to other more objective methods of determining ethical accountability become more important. In relation to disciplinary histories, interviewees thought that: Only serious prior disciplinary matters were relevant to preventing adverse ● consequences flowing from a decision to re-license a lawyer. Some prior offences might be considered to be thresholds, beyond which ● a practitioner could not expect to be automatically re-licensed. One such offence might be financial dishonesty (though this comment was made only in the case of a candidate for specialist accreditation and included a sense that ethics assessment would also be necessary) followed by another threshold which would operate after a second or third minor offence. In contrast, there were more considered views that thresholds are too ● indiscriminate in their operation and that the type or category of prior offences is more important than their number. Perhaps the most reflective view opted for a case-by-case assessment of ● any history, which in turn depended not on specific disclosure of certain offences, but a requirement for disclosure of all disciplinary findings, regardless of any penalty imposed, either at application for accreditation or at a suitable period after admission. Reference was made to a similar disclosure requirement of the government ● legal aid provider in respect of practitioners who seek to be a member of one of that organisation’s referral panels.10 Past disciplinary findings listed in a mandatory disclosure process should ● not give rise to administrative ‘strike-out’ decisions, but to a fairer showcause process capable of allowing for the many unique circumstances that surround any disciplinary history. Nevertheless, the general preference for a show-cause approach was qual● ified by a sense that active deception as to any prior finding ought to constitute a threshold bar to continuation of a practising certificate or accreditation as a specialist. The suggestion by one interviewee (see Figure 6.1), that all practitioners should, at the end of five years in practice, be asked for referees in order to confirm their suitability to have their certificates renewed, is certainly well ahead of current practice and might initially be opposed by rank and file law society membership. Membership opposition might be expected not just because of self-interest, but also because of the sense of collective offence generated by the express criticism of current practitioners contained in the proposal. Nevertheless, the influence of law societies over governments is waning in many jurisdictions. The reality 10 See, for example, the criteria for membership of the VLA Children’s Court (Family Division) Panel <www. legalaid.vic.gov.au/upload/gr.cc panel.pdf> at 13 December 2006, which requires disclosure of prior disciplinary findings (not complaints).

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is that the profession is too often on the defensive while regulators are always potentially on the offensive. Taking the longer view, the potential for professional destabilisation and political intervention is never far away and law societies that are historically alert might consider that they were safeguarding their future interests by adopting effective mechanisms to monitor actual behaviours in their members. Use of referees does not appear be the correct process. Although some interviewees were convinced of their effectiveness (believing that no referee would wish to give a false or misleading reference because of the possible later effect on their own reputation), both Lauw and Roper have been very critical of referees as unreliable in the context of specialist accreditation.11

6.2.3 Summary of interpretation: Relevance of disciplinary history A ‘NIL’ disciplinary history is, in one limited sense, simply a negative indicator of ethical behaviour – since a lack of adverse findings could testify only to a lack of evidence or prosecutions, especially if the functional prosecution decisions are made not by the external regulator, but by the law society as the body exercising the referred jurisdiction of the regulator and making a recommendation as to prosecutions back to the regulator.12 The lack of information proves nothing about an individual; in the same way as attempts to demonstrate good character in potential lawyers perversely seem to rely on what is known about their bad character. As Woolley mentions in relation to admission processes: . . . the good character requirement attempts to promote ethical conduct, protect the public and maintain the profession’s reputation by ensuring that applicants with bad character, who are more likely to act badly, are not admitted.13

Nevertheless, taking into account these realities, there was support from interviewees to utilise either mandatory disclosure of prior findings with a show-cause process attached, or to disregard prior findings, provided they are then followed by an offence-free period. The latter suggestion could operate as a useful adjunct to the mandatory disclosure provision, permitting a practitioner to retain some incentive to improve their behaviour.

6.2.4 In support of ethics confirmation Even if a disciplinary history is truly more relevant to predicting future misbehaviour than anything else, it does seem important to look for positive past and present indicators of likely future good behaviour. In fact, either a law society 11 See in particular Lauw, op cit, n 9. 12 See Legal Profession Act 2004 (Vic), ss 4.4.7–4. 13 Woolley, op cit, n 1, p 36.


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or a regulator could place equal value (alongside any relevant disciplinary history) on evidence of past and present good character as a positive indicator of suitability to practise and a right to continue doing so. One strategic opportunity to demonstrate present good character could emerge for law societies that have some sort of a specialisation scheme in place. While these schemes are not universal and accredited specialists are not by any means the only groups that can claim some reputation or expertise within a local profession, they are easily identifiable as a group and importantly, they are organisationally managed by that local profession. As a group that already claims an accountable level of competence above that of basic admission, they offer strategic advantages to law societies that want to go on the front foot in advancing ethics to a similar level. Law societies might appreciate that accredited specialists could be asked to lead the way, as it were, in adopting an interview process for the purpose of assessing and confirming ethical sophistication after admission to practice. A law society could ask their accredited specialists to modify their own ‘admission’ requirements to require appropriate information as to disciplinary histories, not because specialists were necessarily facing any scandal, but in order to pave the way for wider preventative initiatives in general practice. In other words, it might be easier to introduce such an initiative within one arguably elite part of the profession in order to make more general changes easier later on. Strategies of this sort can be effective.14 Such a decision would take a determined and farsighted society President or CEO, but such individuals come along from time to time.15 On the basis that prior disciplinary histories are relevant to all practitioners’ ongoing ethical performance, the case for confirming a right to practise at a suitable interval after admission seems reasonable. Five years has been suggested as an appropriate interval to demonstrate reformation and it may be that this period is also appropriate for confirming a right of renewal of a practising certificate. Three years would demonstrate greater consumer accountability, but may be too short to ensure that sufficient practice experience has been achieved. There would be relatively few concerns for affordability, because the great bulk of practitioners would return a NIL history when asked to provide information. This approach is worthwhile as one method of assessing lawyers’ ethics in an effort to improve their behaviour. But it might be simpler, more effective and less prone to misunderstanding for law societies to bite the bullet and re-acquire the initiative from regulators on this issue. Societies could introduce an ‘ethics confirmation’ process (including an examination of disciplinary history), for all lawyers at some point after admission. This initiative would involve an interview by peers and a further written testing 14 Alan Paterson has observed that this strategy was used successfully in Scotland to introduce mandatory CLE, where new graduates were first targeted for CLE purposes. See Alan Paterson, ‘Professionalism and the Legal Services Market’ (1996) 3 International Journal of the Legal Profession 137, 152–3. 15 One such individual was Ian Dunn in Victoria, President and then CEO of the Law Institute, who introduced the first Australian specialist accreditation scheme in Victoria in 1989.

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process – see Chapter 7. It would be a preventative strategy designed to improve performance and ward off further regulatory intervention.

6.3 Can clients fairly assess their lawyers’ ethics? The next question put to interviewees concerned their opinions about clients’ perceptions of their ethics as practitioners. It might be thought strange that, having declined to ask clients for their opinions about the issues in the Melbourne Study, the issue of their perceptions about actual methods of improving ethical behaviour should still be considered as worthy of discussion. But a second decision to exclude clients’ views cannot automatically follow from the first. It is possible that the preliminary research decision in the Melbourne Study to exclude clients’ opinions was wrong and that practitioners as interviewees might have other views. Accordingly, interviewees’ perceptions of the value of client’s opinions had to be investigated. Should clients rate their lawyers’ ethics? In principle the answer is yes. Clients are consumers and their assessments of ethical performances and behaviours are important because as the recipients of legal services they ought to be in a good position to make useful judgments. As a broad grouping who could also be involved in assessing ethics, clients are also more removed from legal professional culture than most other stakeholders. Everyone else, be they judges, other lawyers, regulators or academics, even journalists or bureaucrats, will have a pre-existing point of view or perspective; something that they want or need to find out. Providing the clients in question had first paid their bill without resentment, their vantage point is unique because of its lack of institutional bias or conflicts of interest, making them the most important group ever able to offer a valuable opinion. And it is appropriate for lawyers to submit themselves to this (client) scrutiny because clients are service receivers who are owed a powerful fiduciary duty of accountability. If there is any way in which client opinions could be inserted into the ethics assessment mix, then their views ought to contribute to that assessment. But in practice it is very difficult for most clients, even those who have paid their lawyers, to fairly rate their ethics. Interviewees in the Melbourne Study observed that more than a few clients will want an ethical lawyer insofar as their own lawyer–client relationship is concerned but will tolerate a lower standard of ethics in their lawyer’s conduct with the other side, where the issue is often about ‘winning’ or ‘losing’. It could be argued that just as many clients as lawyers are potentially compassionate in some environments and mercenary or ‘heartless’ in others. Depending on the circumstances and the ‘situation’, a client might show the same variability and therefore suffer from the same lack of objectivity.16 We might speculate that a client will usually have a strong expectation not 16 See generally David Luban, ‘Making Sense of Moral Meltdown’, in Susan Carle (ed) Lawyers’ Ethics and the Pursuit of Social Justice: A Critical Reader, New York University Press, New York, 2005, p 355.


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to be overcharged, but if they win they may not care too much if they are overcharged or their sense of being overcharged may be more flexible. A client who ‘wins’ or considers they have won, might well give a considerably more generous assessment of their lawyer’s ethical standards than one who loses, or thinks they have lost. This could be so even if the lawyer who ‘loses’ does so, for example, because they have refused to admit perjured evidence or because they have declined to engage private investigators to discover embarrassing but irrelevant details from the murky past of an opposing party. Yet there might be something in earlier studies of clients’ opinions about their lawyers’ performance that could still be applicable to assessing ethics. Those studies are examined below, followed by consideration of interviewees’ views in the Melbourne Study as to the value of client opinions. The latter study includes their opinions as to whether there is any category of client who might be able to offer an impartial assessment of their lawyers’ ethics.

6.4 Prior large-scale surveys of clients Several very well-constructed UK empirical studies of client attitudes to their lawyers have resulted in unique and very comprehensive pictures of particular client group perspectives. These studies used highly innovative approaches which provided tangential client perspectives on ethical function, even if their scope and subjects were different. Thus the majority of these surveys were financed by legal aid authorities who were more concerned with the competence of the lawyers surveyed and with overall related concepts such as quality and satisfaction, than with ethical standards per se. This research was also usually concerned with legal aid and other ‘single-player’ clients rather than those from the corporate world, who might well have more complex views about the competence and overall quality of their lawyers. Nevertheless, quality at least is a term that includes ethical accountability and the term is useful because it covers a range of subjective and objective qualities which clients appreciate in an otherwise competent lawyer. These researchers were therefore comfortable to seek empirical evidence of how satisfied clients were about ‘quality and cost’.

6.5 Client satisfaction as an indicator of ‘quality’ In their important study, Moorhead, Sherr and Paterson asserted that clients do understand something about competence, ‘but their views are often misleading indicators about quality’.17 We need to know, they wrote, which elements of legal 17 Richard Moorhead, Avrom Sherr and Alan Paterson, ‘What Clients Know: Client Perspectives and Legal Competence’ (2003) 10 International Journal of the Legal Profession 5, p 6.

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service a client can assess,18 in other words, ‘when can client views be relied upon and what is their relation to the reality of legal competence.’19 In 2000, Moorhead et al conducted a major study entitled Quality and Cost: Final Report on the Contracting of Civil, Non-Family Advice and Assistance Pilot.20 They found that 73% of clients were generally quite satisfied (very good to excellent)] with the service they received.21 This satisfaction extended to [quasiethical] indicators such as lawyers ‘telling clients what was happening’, ‘having enough time for clients’, ‘telling clients what would happen at the end’, ‘paying attention to clients’ emotional concerns’ and ‘treating clients like they mattered’.22 Clients were not asked to explicitly critique competence (or ethical functions), but this survey did not ignore the relationship between client satisfaction and competence. While noting that Sherr et al had earlier found ‘an overlap [connection] between client satisfaction and a technical measure of quality provided by transaction criteria scores’,23 Moorhead et al’s work in Quality and Cost led to a different conclusion. Their Quality and Cost report analysed 867 responses to a client satisfaction survey and compared these views with carefully selected practitioners’ opinions on objective aspects of quality,24 as well as including peer reviewers looking at the overall firm quality of casework. This analysis led them to comment that: . . . no significant correlation [was observed between] the mean client satisfaction score of a contractee and the mean peer review score. This adds weight to the view that client satisfaction does not necessarily provide an accurate indicator of technical quality.25

It is certainly possible that clients do understand quality better than experts, but ‘single shot’, individual clients’ educational background is likely to be highly variable, as opposed to corporate clients represented by in-house counsel. Noncorporate clients’ likely knowledge, for example, of relevant principles of law, case strategies and the rules of legal costing would not consistently support them making judgments about these aspects of quality in their lawyers’ performance. Clients’ opinions are not considered useful by researchers in the overall assessment of ethical issues, except in the narrow but important area of client-handling skills. Also in support of the view that the great majority of clients are not appropriate judges of overall quality are the results of the ‘model client’ methodology utilised in the same study by Moorhead et al. Model clients represent an innovative 18 ibid, p 13. 19 ibid. 20 R Moorhead, A Sherr, L Webley, S Rogers, L Sherr, A Paterson and S Domberger, Quality and Cost: Final Report on the Contracting of Civil, Non-Family Advice and Assistance Pilot, Norwich, Stationary Office, (2000). 21 Moorhead, et al, n 17, p 16. 22 ibid, p 14. 23 ibid, p 16. 24 For example, how much time was spent on a file?; and the hierarchical level of the file operator. 25 Moorhead, et al, n 17, p 16.


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but intensely intrusive methodology in efforts to discover how lawyers actually behave, as opposed to what they say about how they behave. His model clients were a special class of lay people: . . . trained actors, sent to pose as clients with realistic case scenarios provided by the researchers. They would attend legal advisors who had been warned at the outset that they might be visited by model clients but who would not know when such visits occurred. Legal advisors were paid as usual . . . and remained unaware that the client was not real.26

In Moorhead et al’s study, lawyers were in fact deceived as to the identity of some of their clients, though fully aware that a proportion of individual ‘clients’ could have been lying to them. But his results were regarded as credible because interestingly, few if any of the lawyers were able to identify who was a bogus client. Even if in some of these initial client interviews some lawyers considered that they had a bogus client in front of them, their natural defensiveness would have led them to treat the client as genuine and to redouble their efforts to perform at better than acceptable levels, since such ‘clients’ were by definition in a position to report on the quality of the interview. They had little choice but to go along with the research, despite their individual vulnerability, because their contract with the legal aid authorities required their participation in the studies. In the event, although Moorhead et al’s model (that is, secret) clients reported that they were generally very satisfied with the level of service they received, 16 (40%) of the 40 model client interviews were assessed by the peer reviewers (who had access to the detailed reports of the interviews, supplied by the model clients) as having provided poor quality advice.27 Clients, in other words, could not make good judgments about quality even when they felt satisfied. The fact that 40% of practitioners were assessed as giving poor advice, despite their recognised vulnerability and consequent concern to perform adequately, was perhaps the crucial and unwelcome finding of the whole exercise. Even if clients’ opinions were valuable for some purposes, it is probable that the model client approach would be inherently difficult as a long-term methodology to assess lawyers’ ethics in any jurisdiction, particularly in the absence of any contractual compulsion. With the knowledge of the results in these prior studies, no law society or bar association will cooperate politically with the element of secrecy unless they were aware of the testing period over which the research was likely to occur and even then, agreement would be unlikely. Once aware of the test period and fearful of the risks to reputation, a proportion of otherwise sub-standard lawyers will lift their performances for that period, which may be desirable, but hardly provides an accurate snapshot of the general ethics of practice. And future practitioner guinea pigs, aware of any adverse findings after the model clients’ first outing, may be far more circumspect with new clients, once made aware that a new test period was commencing. It is also worth noting 26 ibid. 27 ibid, p 17.

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that, like the earlier 1994 Sherr et al investigation referred to in Chapter 4,28 six years later Moorhead et al were still observing similar, indeed slightly higher levels of incompetence in UK practitioners. Leaving aside the competence issue, the Moorhead et al model client study also referred to the question: what can clients assess? In fact, while useful client assessments of competence appear limited to basic service competencies and social (communication) issues, these are anything but inconsequential, despite the ‘weak . . . nexus between client satisfaction and actual quality’.29 Clients were found not to be able to assess quality through the use of multiple advisors, for example, lawyers, accountants, medico-legal consultants and detectives. When multiple advisors were used, quality went up (perhaps because the lawyers knew they were being, in effect, monitored by near-peers), but clients’ satisfaction went down when they had to deal with more than one operator.30 Similarly, none of transaction delay, advising on the length of cases, visible lawyer effort, the presence of complaints or outcomes achieved were found to have straightforward relationships to the level of client satisfaction. ‘While the above factors have a relationship to competence, there are a number of variables which are not directly or indirectly related to competence which nonetheless affect client satisfaction scores.’31 Nevertheless Moorhead was clear that ‘[i]n spite of the divergence between client and professional views of quality it remains important to include client perspectives in any model of legal competence.’32 To do otherwise would deny the importance of lawyer–client communication in professionalism.

6.6 Client rating of interpersonal skills and accountability Even if client opinions on many aspects of lawyers’ ethical performance are imperfect to say the least, the exception is lawyers’ oral communication skills and standards of written reporting.33 Communication and accountability are indicators of ethical sensitivity as much as of competence, since the ethical lawyer, under any classification discussed earlier, will wish to make their actions clear to their clients as a part of their overall service. But even in these limited 28 Avrom Sherr, Richard Moorhead and Alan Paterson, Lawyers – The Quality Agenda: Vol 1: Assessing and Delivering Competence and Quality in Legal Aid – The Report of the Birmingham Franchising Pilot, Legal Aid Board, London: HMSO, (1994). 29 Moorhead, et al, n 17, p 28. Unfortunately, as Giddings notes, a good relationship with a practitioner is not always an indicator of competence. See Jeff Giddings, ‘Legal Aid Services, Quality and Competence: Is Near Enough Good Enough and How Can We Tell What’s What?’ (1996) 1 Newcastle Law Review, p 91. 30 ibid, pp 20–1. 31 ibid, p 25. For example: age, ethnicity, area of law and ‘how legal advisor chosen’. 32 ibid, p 29. 33 T Goriely, ‘Debating the Quality of Legal Services: Differing Models of the Good Lawyer’, (1994) 1 International Journal of the Legal Profession 159. Needless to say, lawyers may be one of the very few service providers who are able to argue, thus far successfully, that their ‘customers’ have little capacity to offer credible comment on their ongoing service standards, except in a one-to-one complaint environment.


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measures, the research done by Sherr et al would not have been possible without clients’ waiving their rights to privacy as a condition of obtaining legal aid. If client opinions are so hard to get and are then of such limited use, it might be thought easier to disregard their views and adopt surrogate client perceptions, such as those employed by Cunningham et al in their standardised client process,34 in order to work out which lawyers are able to communicate in a skilful and respectful manner. A surrogate or model client enquiry process is likely to prove very effective, but if direct client opinion were available, even on limited issues of communication, that direct assessment could be considered superior to alternative, indirect methods of rating this ethical quality. Interviewees in the Melbourne Study were therefore asked their opinion about the in-principle introduction of client rating as a method of improving professional behaviour. The results were both predictable and surprising, reaching essentially different conclusions for different types of clients, as the tree display in Figure 6.2 overleaf indicates.

6.6.1 Opinions of interviewees In the tree display, the consensus of opinion appeared to be that business clients were potentially acceptable as assessors of lawyers’ client skills because they were considered able to separate their concern for results from the lawyering process. Some interviewees even thought that such clients could rate more than skills, although this possibility was limited to a narrow class of highly sophisticated clients who were expressly comparing different practitioners as a part of their daily functions. Even where a results focus might contaminate opinion, one interviewee had thought about how to deal with it. In contrast to this positive reaction however, there was far more negative reaction offered in the context of those clients who were considered, perhaps patronisingly, as unable to divorce their observation of a practitioner’s skills from their anxiety about outcomes, or even of their status as clients.

6.6.2 Interpretation of ‘client rating of interpersonal skills and accountability’ Not unexpectedly, interviewees had thought of all sorts of reasons why it would be inappropriate to ask clients whom they considered vulnerable (and other less-vulnerable clients), to offer any opinions about practitioners’ ethics. These included client irritation with the request to comment and client hostility that 34 See Karen Barton, Clark D Cunningham, Gregory Todd Jones and Paul Maharg, ‘Valuing What Clients Think: Standardized Clients and the Assessment of Communicative Competence’ (2006) 13 Clinical Law Review 1, and accompanying text. Such ingredients have been found to include greeting, explaining how the interview will proceed, encouraging disclosure, confirming understanding, identifying key topics, appropriate and systematic questioning, further fact identification, avoiding premature advice, explaining rights and applicable law, identifying fees and legal aid availability, outlining and evaluating openly all options, identifying and appropriate handling of ethical issues, confirming retainer and action plan, establishing and maintaining rapport, listening, avoiding jargon and demonstrating courtesy.

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Client Rating of Interpersonal Skills and Accountability an in principle ‘yes’

‘ ... I think it would be desirable to assess perceptions of how you practise ... because it helps the profession as a whole. It probably comes back to my training in legal centre work... they emphasised so much about communicating carefully, not making people feel that they were in a classic lawyer-client situation (power imbalance)... that was an incredibly important training process, and particularly in family law because people are in such a stressed state, so I would support the idea because the profession as a whole needs to improve its game.’

OK for communication skills ‘ ... I’m not sure that consumers should [be] giving an opinion on competency, but clients might be a good resource on communication skills and deadlines, etc.’ An insurer’s panel manager, who is really a business client, might succeed in rating more than communication skills ‘ ... no problem, go for it. I’ve got nothing to hide. I’ve only got three cases which have gone down badly when they should not have and I still talk to all three of those clients regularly.’

But how would you allow for clients’ focus on result? ‘ ... you need to refer to medians rather than means, disregard the extremes and look at the mid-range balance – suppose you had 30 clients in a survey questionnaire, you’d have 5 who’d give 5 to everything because they can’t be bothered to think about it, another 5 who give 1 because they were unhappy with the result, and so you’d disregard the bottom 5 and top 5 and be left with 20.’ ‘ As an employer [ of lawyers] I’d welcome it ’

Figure 6.2: Tree display of client rating of interpersonal skills and accountability

their name, let alone the retainer, was known to anyone other than their lawyer: for example, ‘how did you find Mr X? oh, he was really great, he helped me a lot . . . well, what were you charged with? Oh. Go and get f∗∗∗∗∗ , I don’t want to discuss that with you.’35 There was also concern about invasion of client privacy and the possibility of client nervousness about any ulterior motives for the initial contact. The sense of irritation in these interviewees was considerable in itself and left little doubt 35 Extract from interview with accredited specialist AC14, Melbourne.


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that, even if some sort of regime of client rating were instituted in respect of some (perhaps most) client groups, the practitioner backlash, even ‘counter insurgency’, would in all probability offset any positive effect of the client rating process. The impression received was that while many interviewees were trying not to sound alarmed, they were sufficiently unhappy with the prospect of their clients being contacted about anything that they might wish to collectively or individually warn them in advance of the possible forthcoming contact. Any such contact would have the potential to fatally distort client reaction and hence the rating process. Additional practical objections to contacting family law clients were also evident. It was pointed out that reasonable numbers of family law clients are illiterate and cannot be expected to complete rating surveys, that such clients are in any event so distressed by the consequences of relationship breakdown that a request for feedback on their lawyer’s skills would often be seen as insensitive or incomprehensible, or result in distracted responses and that, in any event, case-outcome dependency was likely to particularly dominate any family law client feedback until well after a case had been completed. Despite these negative reactions, interviewees were also well aware that the objective of client rating was reasonable and is some contexts, highly advantageous in terms of practice marketing and efforts to increase client numbers. Alternative approaches to assessing lawyers’ communication and related skills were suggested (in the context of specialist accreditation). As one interviewee said: If there was a perception that clients’ opinions were valuable, maybe applicants could be required to give some references from clients and examiners could be required to speak to those people, so it wouldn’t come completely out of the blue to those clients.36

Others returned to the notion that referees were the best source of information about all practitioners’ skills: You get a truer reading if at the end of each five years [of general practice], to get your practising certificate renewed, you’d get referees because [they] give a fairer indication of who’s doing the right thing. I don’t think you find things out from clients [about a lawyer’s professionalism] because they are too inclined to see the bad side of things when in fact the bad side was inevitable. They become too enthused and [get things] out of proportion.37

And finally, another interviewee suggested that while: . . . the profession would never let [client rating] go through because they’d be too afraid about the negative ratings . . . we do client file audits internally as an annual quality control process on our [major tendered client] . . . and the profession would probably find a version of this [client file audits] more acceptable.38 36 ibid, AC6, Melbourne. 37 ibid, AC27, Melbourne. 38 ibid, AC20, Melbourne.

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6.6.3 Few clients can assess their lawyers Although the principle and intent of client rating might be considered practically difficult in respect of most client categories, there is a case for trialling a feedback process among those groups of niche clients who are already assessing competing law firms and practitioners on a daily basis; for example, insurer panel managers, in-house counsel of major corporations with major budgets for external lawyers and the service purchasing divisions of government departments. Risk management expectations are in any event very close to generating client expectation profiles of the sort that equate to client ratings. But aside from those groups, standardised surrogate clients and/or client file rating are more accessible and more reliable sources of information about practitioner interpersonal skills than direct client assessments. Further, both standardised clients and client file audits have been considered and endorsed by empirical researchers as reasonable and effective measures of certain professional skills.39 The following section details interviewees’ reactions to the potential of client file audits as an alternative method of assessing a critical secondary indicator of ethical function and the ability to listen and question empathetically – evidence of attention to detail and thoroughness in client representation.

6.7 Client file audits In the United Kingdom, client file audits for ‘transaction criteria’ are well established. Despite their rejection of client rating per se, there was a consensus among interviewees that a client’s file, once completed, would provide considerable detail about how a practitioner had approached their role. There was also hesitation, of course, but the disdain for general client rating as a measure of ethical performance did not emerge with this more benign suggestion. The sense that the organisation and maintenance of a file ‘says something about’ the practitioner, was strong. Most interviewees said that, subject to confidentiality, random selection and their clients’ consent, they would not mind their own files being scrutinised for this purpose. The tree display in Figure 6.3 sets out their principal reactions.

6.7.1 Opinions of interviewees Significantly, just as Sherr et al revealed in their UK studies,40 interviewees in the Melbourne Study understood that the detail of file handling reveals a lawyer’s likely thoroughness of approach and this in turn can be a measure of 39 Avrom Sherr, Richard Moorhead and Alan Paterson, ‘Assessing the Quality of Legal Work: Measuring Process’, (1994) 1 International Journal of the Legal Profession 135, 148, referring to Jeremy Cooper, ‘What is Legal Competence?’ (1991) 49 Modern Law Review 323; Avrom Sherr, Richard Moorhead and Alan Paterson, Lawyers – The Quality Agenda: Vol 1: Assessing and Delivering Competence and Quality in Legal Aid – The Report of the Birmingham Franchising Pilot, Legal Aid Board, London: HMSO, (1994), Vol 2, 19; see also Barton et al, n 34. 40 Sherr, et al, op cit, n 39.


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Clients’ Files Reflect your Professionalism

‘OK, if you knew it was coming’

‘… the file audit idea … is not bad … We had a system [in our accreditation committee] to test drafting, where names were blacked out of actual affidavits used in the applicant’s practice, but that had a problem and wasn’t continued, in that it was often identifiable … some of the committee members realised they were on the other side and [there were] some funny ones where they forgot to cross out the bits down the bottom where it said ‘settled by Fred Smith of Counsel ’ – he’d forgotten to rub that out and put it forward as his own work! I found that quite a useful insight into the work done.’ ‘I don’t think referees are appropriate because nobody is going to give a bad reference.’ That’s scary, because … ‘… one of the real problems in modern practice is that you can’t get the time to do things as well as you’d like … you have to take reasonable risks, to cut corners that can be cut and to know the difference … to do it properly you’d be accused of over-servicing and overcharging by the non-public company clients ..,. [but] if you had that benchmark, you’d be entitled to ask … why would you be fearful of this?’ … it would be a great constant stick, a great motivator … reinforcing of good practice discipline and stop us all from not doing the proper housekeeping.’

Randomly select 10% of the last three years’ files and look ‘… the range of [acceptable] approaches and administrative efficiency … if it takes 10 months to settle instead of 5, why? Have the valuations been thorough? Has discovery been thorough? How have you dealt with other professionals? File notes? Does the client know at the outset what the options are? Collateral deals?’ Figure 6.3: Tree display of client file audits

overall ethics. In the United States, Cunningham would also say that the detail of a lawyer’s approach to interviewing (which can also appear on a file, if that information must be recorded), can reveal a range of ethical qualities41 about a practitioner. Yet there were also some misgivings associated with the potential of file audits to shoehorn practitioners into a single, highly recorded model of client handling.

6.7.2 Interpretation of ‘client file audits’ The principal objection to auditing files concerned the unlikelihood of every file recording everything that should be recorded. As one interviewee said: 41 Barton, et al, op cit, n 34.

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‘if you wanted to look at a particular file, there could be 20 of them, and I’m not going to have everything on each file . . . some of it is in the solicitor’s head’.42 This comment was coupled with another that revealed some potential for practitioner resistance, based on what was seen as an implicit assertion behind file audits that there can only be one acceptable way to service a client: ‘I shudder at the thought of someone doing that to me . . . a messy lawyer does not mean that they are not a good lawyer or that they are not doing a good job for their client.’43 This interviewee suggested that the standard of documents actually presented in Court44 was likely to provide a fairer assessment. Court documents might well be tidier in their drafting, but their quality would still be a matter of opinion. It is ultimately very difficult to get away entirely from the concept of judgment based on opinion, though some still struggle for extreme objectivity. Another interviewee pointed out that a file audit might be conducted on the basis of an overall opinion as to the practitioner’s proficiency, and that such opinions might differ: You’ve got a question of who assesses what you’re doing – who’s to say that their method is better? . . . it’s opinion-based, that makes it difficult . . . in law there’s a lot more discretion to say let’s go down this track, or this track, etc., etc. – so many options. I think it would be far more difficult to say what is right and what is wrong.45

In their assessment methods of legal aid practitioners in the United Kingdom, Sherr et al were not averse to combining their detailed scoring of lawyers’ transaction (competence) criteria – a moderately objective process – with peers’ intuitive assessments of overall quality, based on the legitimacy of opinion, in an effort to develop a rounded view of overall competence.46 In other words, an overall assessment of any particular lawyer’s quality need not, and probably should not, be based on just one approach to measurement. In the light both of prior research and interviewees’ reactions in the Melbourne Study, the inclusion of a peer-driven rating of someone’s professional ethics as evidenced by their files – looking, for example, for the range of acceptable approaches rather than a definite yes/no decision on a certain approach – would be acceptable to interviewees as a measure of ethical sophistication. Interviewees were also concerned to repeat the point that files don’t record everything that is said, or ‘that some of it is in the solicitor’s head’. While this is undoubtedly true, the response might be, ‘why is [x] not recorded?’ There is no good answer to this question other than the lawyer forgot to record something or chose not to record something. If the latter occurs because of 42 Extract from interview with accredited specialist AC29, Melbourne. 43 ibid, AC18, Melbourne. 44 In the process of accrediting family law specialisation candidates, the practice of the Victorian Advisory Committee is to examine applicants’ standard of drafting of court documents for just this reason. 45 Extract from interview with accredited specialist AC15, Melbourne. 46 Avrom Sherr, Richard Moorhead and Alan Paterson, ‘Assessing the Quality of Legal Work: Measuring Process’, (1994) 1 International Journal of the Legal Profession 148, referring to Jeremy Cooper, ‘What is Legal Competence?’ (1991) 49 Modern Law Review 323.


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an attempt to evade scrutiny of unethical oral advice, then a file audit is unlikely to directly implicate the practitioner, though it may still provide a suspicious context that could arouse law society interest in a separate ethics investigation. But when file omissions are both material and noticeable, their absence from the record would be significant in terms of either competence or ethics and probably both. More important objections about the cost of file audits (an issue which applies to many of the initiatives discussed in this book) and the effect on clients’ privacy were also raised. Clearly, cost issues involve overall assessments of cost benefit and political decisions about current professional priorities. Confidentiality is not an insignificant issue either. Lawyers do of course have many clients who are very concerned about privacy, as the following comment (made in the context of accreditation) clearly indicates: It strikes me as pretty intrusive, but it would certainly test the mettle of the candidate. But it would also be very expensive and a lot of hard work for the assessor . . . some randomly picked transactions would have huge bundles of lever-arch files . . . and it might discourage people from applying for accreditation because of concerns about how their clients would react to being asked to participate, even if it were confidential, because of, for example, in my area, sale of business, say if my clients were contacted and asked if their transaction could be checked to see if [xx] were adequate, a lot of them would not understand why that’s being done. The solicitor could think, well that’s going to have an adverse impact on my client.47

There is no way to avoid the fact that file audits would involve some practitioners’ clients being approached by assessors or auditors and becoming profoundly uncomfortable when asked to consent to the audit of their files. So it is already with patient file audits within the medical profession.48 These clients would presumably object and the objection would be heeded with the auditor moving on to the next random file. Yet the client would be left wondering ‘did they respect my privacy, or not?’ and might then choose to move to another lawyer, but for two points. Firstly, the approach to the client seeking permission to assess the file would include a statement to the effect that the assessment relates only to an ethics audit, the existence of which the client might indirectly approve. Secondly, since cost considerations virtually ensure that no audit regime will be universal, the audit process would presumably apply randomly to all general practitioners or all accredited specialists or both, so movement to another lawyer would seem, on balance, unlikely to guarantee very much in the way of future privacy. In fact, since the then current subject of the audit might expect to be, practically speaking, exempt from further audits for several years, the concerned client might just as well stay with their lawyer and maintain their right to privacy in the current audit. 47 Extract from interview with accredited specialist AC6, Melbourne. 48 David Stern, Conference on ‘Enhancing the Accountability of Lawyers for Unprofessional Conduct’, Transcript of Proceedings on ‘Measuring Professionalism’ (2003) 54 South Carolina L Rev 943, pp 8–9.

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6.7.3 Mitigating the cost of client file audits Initially, some lawyers will be appalled by the prospect of their files being examined, regardless of any warning of an impending visit. Even if their clients’ files are chosen at random and clients can choose to opt out, lawyers’ anxiety will generate real objections. But if the process had already been introduced among accredited specialists, there could be fewer objections and those that did emerge would not be likely to have the political impact that an entirely new initiative would generate. The major remaining objection to client file audits concerns their cost and this is likely to be cited as the main limiting factor. Mitigation of that cost virtually guarantees that only a sample or random selection of practitioners will have their files audited in any one period, similarly to the way the cost of auditing lawyers’ continuing legal education compliance in Victoria occurs in only a proportion of current practising certificate holders in any one year.49

6.8 Opinions of corporate clients This is not to say that some groups of clients may have more distance on their lawyers’ ethical attributes than others. Naturally enough, there are some classes of corporate clients who seem already to be quite good at assessing their lawyers and law firms in terms of price and quality. In-house counsel who spend much of their time buying-in bulk services from large firms are one such group. Another are panel managers for government or quasi-government organisations, whose role is to select, sometimes in competitive ‘beauty parades’, the firms who will receive a certain share of their organisation’s legal work over a defined period. The ingredients of quality for such clients must include ethical performance because they have sector and industry reputations to consider, apart from whether they succeed in an individual transaction or not. These reputations are based on outsiders’ perceptions, not just of their financial viability but more fundamentally on their reputation for being ‘good’ or ‘bad’ corporate players. Bad ethical decisions by lawyers can contribute to reputation decline and share price falls or collapse, as Enron and some of the other examples in Chapter 2 make clear. While there is likely still to be some subjective element to corporate clients’ assessment of large firms’ ethics, those assessments are more likely to be informed by their comparisons of different firms’ behaviour, and more impartial than would be likely if their personal interests were directly affected by the lawyer’s behaviour. Professional indemnity insurers have become critical in supporting the ethical credentials of all law firms as firms. As a condition of providing their insurance, they require firms to manage obvious negligence risk factors such as work load 49 See Legal Service Board, Victoria, Annual Report 2009, pp 21–2, which shows that there were 100 verifications of individuals’ Continuing Professional Development records in respect of over 15 000 Victorian practitioners.


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per fee earner, access to CPD and the adequacy of supervisor review mechanisms. Many of these factors include ethics risk which must also be managed to limit the possibility of client or court complaints, either of which can grow into reputation risks for a firm if ignored. When large law firms tender for work and are required to ‘exhibit’ their risk management profiles to corporate clients, they are therefore and to some extent offering up their ethical credentials as relevant to their selection. The fact that risk managers and insurers cannot be expected to disclose individual opinions on the ethics of particular firms or sole practitioners without their (lawyer) clients’ consent, does not detract from the relevance of their opinions to assessment. There are accordingly cogent prima facie reasons for involving corporate clients and their executives in an ethics assessment process. If lawyer–client consent can be obtained by insurance risk managers or, regardless of consent, if corporate clients were willing to be surveyed as to the assessment of their lawyers’ ethics, much additional relevant information as to ethical decision-making would be available.

6.9 Usefulness of file audits On balance, the gains to lawyers’ ethics from auditing file maintenance standards are likely to be sufficiently obvious to enough professional leaders, consumer advocates and regulators-in-the wings, to make file audits one of the more promising cost-benefit initiatives proposed in this book. They operate on the premise that an organised legal mind, as reflected in an organised file, may be less vulnerable to temptation to steal clients’ funds and less likely to cut ethical corners in an effort to make up for inadequate file attention. Such audits will not directly uncover purely oral conspiracies between lawyer and client, but if a client’s known actions seem in retrospect to be completely at odds with the documented processes and decisions of their file, the comparison may in some cases give rise to its own suspicions in the file auditor, leading to wider investigation. Professional indemnity insurers would also no doubt wish to participate and could be expected to share in meeting the cost in order to identify negligence risk management issues. To the extent that files contain background information relevant to the whole client representation enterprise, including the context for the particular ethical issues facing the practitioner, file audits represent one of the better prospects of assessing ethics among all practitioners.

6.10 Recommendations: Developing character through disciplinary histories and client opinion Practitioners’ opinions about disciplinary histories and the forensic value of clients’ opinions, together with the insights of prior studies about client

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opinions, support a mixture of cautious optimism and realism about this aspect of improving lawyers’ ethics. Collectively, the following recommendations appear justified.

6.10.1 Disciplinary histories ●

●

●

●

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Practitioners’ ongoing disciplinary histories are relevant to their annual or biennial re-licensing, or at a reasonable period after admission, providing they are also in receipt over the relevant period of ongoing virtue ethics education and training. The use of referees for re-licensing or accreditation purposes, while affordable, is insufficiently independent of the subject lawyer and ought to be discontinued. A case-by-case assessment of any disciplinary history is appropriate rather than the specific disclosure of certain offences, and would initiate a showcause process capable of allowing for the many unique circumstances that surround any disciplinary history, provided that within such process, active deception as to any prior finding ought to constitute a threshold bar to relicensing of a general practitioner or accreditation as a specialist. An ‘ethics confirmation’ process involving such an examination of disciplinary history should apply to all lawyers at five years after admission to practice. Periodic ‘ethics confirmation’ processes should occur at regular intervals after initial confirmation.

6.10.2 Clients’ opinions ●

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●

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Clients’ opinions on ethical issues are generally relevant and reliable only in relation to lawyers’ communication skills and standards of written reporting. There is a case for trialling an ethics feedback process among those groups of niche clients who are already assessing competing law firms and practitioners on a daily basis; for example, insurer panel managers, in-house counsel of major corporations with major budgets for external lawyers and the service purchasing divisions of government departments. Such clients’ assessments are more likely to be informed by their comparisons of different firms’ behaviour and more impartial than would be likely if their own personal interests were directly affected by their lawyers’ behaviour. But aside from those groups, standardised surrogate clients and/or client file auditing are more accessible and more reliable sources of information about practitioner interpersonal skills than direct client assessments. A client’s file, once completed, will provide considerable detail about how a practitioner has approached their ethical responsibilities.


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An overall assessment of any particular lawyer’s ethics as evidenced by their files should be based on the range of acceptable ethical methods and seek an awareness of a virtuous balance rather than definite yes/no decisions on particular issues. The cost of client file audits will be mediated by sampling or random ● selection of practitioners. In the following chapter, research into lawyers’ awareness of values, emotions, ethics and complex judgment are all examined for their relevance to an extensive discussion which follows in relation to measuring a lawyer’s strength of preference for a particular legal ethical profile or type. A detailed methodology for developing an instrument or scale to measure such preferences is included in order to promote the potential of such techniques as a part of the overall mix of approaches to assessing lawyers’ ethics. Quantitative scales, when combined with qualitative ratings developed from peer assessments formed during interviews, could allow an accumulation of assessment ratings to produce a composite rating or index of lawyers’ ethics. ●

7 Measuring awareness of values and ethics

7.1 Towards assessment of lawyers’ ethics At the core of assessing lawyers’ ethics are the problems of what attitudes and behaviours to assess in individual lawyers and deciding whether such ‘assessment’ is technically feasible. This task is more complex than assessing whether lawyers can remember professional conduct rules. Assessing knowledge of conduct rules is a simple cognitive process of memory testing, undertaken routinely at all levels of legal education. There is no agreement that the larger issues of complex judgment covered by legal ethics are more important than the limited purposes of conduct rules and there is no agreement that these deeper qualities require assessment, let alone as to the best approach to such assessment. Even if such agreement emerges and assessment includes a commitment to some or all of the measures recommended in earlier chapters, the issue of technical feasibility remains. Economides and Rogers refer to these technical issues as ‘notoriously difficult, if not impossible’,1 but they acknowledge that ‘part of the problem is a lack of familiarity with qualitative assessments as credible and valid evaluation tools’,2 and they might also agree with Myles and Huberman that in the context of research investigation, the combination of both qualitative and quantitative methods reduce the risks of relying on either strategy alone.3 This is why the

1 Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’, Section 3: The Challenge of Ethical Assessment, The Law Society of England and Wales, February 2009, unpublished. 2 ibid, citing P Surdyk, ‘Educating for Professionalism: What Counts? Who’s Counting?’, (2003) 12 Cambridge Quarterly of Healthcare Ethics 155–60, 157. 3 Matthew Miles and Michael Huberman, Quality Data Analysis: An Expanded Sourcebook, Sage Publications, Thousand Oaks, California, 2nd ed, 1994, p 18.

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approach to assessment proposed throughout this book involves both. In this chapter also, qualitative and quantitative methods are discussed. The key to meeting the technical objections to assessment of deeper ethical concepts is acceptance of the obvious proposition that since legal ethics are diverse, complete agreement as to a correct ethical position in any particular situation is unlikely. So what is there about ethics in particular that ought to be assessed in lawyers? The confident answer must be: an awareness of complexity and of what lies behind that complexity. At a minimum, the content of ethics assessment must include individual consciousness of values and emotions, of the ethical methods and types that flow from differing values and of the judgment that is needed to weigh up which of these methods and types should apply in different situations. If possible, though so far there is less empirical evidence in support, assessment should also be about measuring the bona fides (or virtue and courage) of each lawyer in attempting to respond to situational demands on their decisions. There is no published research into possible ways to achieve precise assessments of lawyers’ ethics, but as with the proposals put forward in earlier chapters, there is a generally relevant empirical research record, discussed more fully in sections 7.3 to 7.4, which helps to identify key topics on which any assessment should focus. These studies describe ethics’ attitudes among criminal and commercial lawyers and show significant levels of over-dependence on clients; in effect, a general corruption of zealous advocacy. Another strand of research points to the powerful effect of firm structure and culture on over-dependence and individual ethical autonomy, particularly in medium size and large firms. Researchers seem to generally agree that the way firms organise themselves and value different behaviours might be derailing the ethical confidence and sense of independence of their professional staff. Such cultures seem to make it very difficult for new lawyers in particular, already burdened by an expensive academic legal education which still pretends too often to be neutral on moral issues,4 to practise with integrity and courage while also contributing to immediate profitability of their employers’ businesses. There is a strong sense that something needs to be done about this continuing evidence of ethical stagnation because of the impact on wider social stability. But researchers are also concerned for the profession itself. Firms’ toleration of client over-dependence at the expense of responsible lawyering and in some very large firms, an apparent insistence on ‘clients as gods’, is sad in many ways, not just because of the paradoxical failure to appreciate that future profits of law firms positively require a long-term commitment to ethics. This general research record leaves almost no doubt that improvements in both firm structures and individual lawyers’ ethics – operating in congruence with each another, with both assessed for their effect – are required to deal with what is really a long-term ethics recession. 4 See generally, ‘Special Issue: The Values of Common Law Legal Education’, (2008) 42(3) The Law Teacher.

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As in previous chapters, the views of interviewees in the Melbourne Study on some of the techniques that might be applied to deliver ethics assessments of individual lawyers are explored below to comment on their feasibility. Such views are not definitive but they do endorse an approach which measures personal understandings and experience of complexity, of bona fides and of courage, assuming of course that firms are prepared to emplace genuine ethical infrastructure. As Parker et al observe: . . . there is a real danger, perhaps even a probability, that regulators and law firm management will be lulled into satisfaction with symbolic or formalistic ethics management initiatives that do not make any difference to everyday actions and behaviours, and are not supported by commitment to ethical values by lawyers throughout each firm. There is also a danger that ethical infrastructure initiatives will be narrowly designed to enforce compliance only with lawyers’ clearest and most visible legal obligations (often duties to the client such as trust account separation, rather than duties to the court and the legal system as a whole), but that they will fail to support or encourage the development of individual lawyers’ awareness of their own ethical values and ethical judgment as to how to apply them in complex and relatively opaque practice environments.5

When the reflective qualities of an ethical lawyer and genuine infrastructure are intentional and simultaneously supportive of one another, ethical decisionmaking is likely to be sustainable. Ethical reflection must be habitual in the individuals working in large firms if they are to collectively underpin the larger, ethical infrastructure that in turn supports reflection and then action at the individual level. More recent preliminary research in developing a quantitative index or scale of lawyers’ understanding of their own ethical type is also explained below and augmented by Appendix C. This work is intended as a prototype for quantitative ethics assessment by helping to determine whether a particular lawyer has sufficient awareness of the diversity of approaches to legal ethics to understand at least some of the consequences of ethical complexity. But even if such scales eventually contribute a numerical element to ethics assessment they will be no panacea. Peer interviews to observe and develop intuitive assessments of a lawyer’s integrity are likely to be the mainstay of any approach to assessment. Interviews allow hypothetical and anecdotal dilemmas of legal ethics to be fully explored and for an interviewee to show that they comprehensively understand an issue in a way that a statistic might only summarise. Nevertheless, quantitative measurement of ethics will gradually increase in importance and this chapter concludes with an exploration of that landscape. 5 Christine Parker, Tahlia Gordon and Steve Mark, Research Report: Assessing the Impact of ManagementBased Regulation on NSW Incorporated Legal Practices, 2008, Office of the NSW Legal Services Commissioner, Sydney, pp 182–3.

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7.2 Being aware of (personal) values and emotions If we ask what ethical attributes can be tested and assessed in an individual lawyer, their awareness of their own values must be at the top of the list; closely followed by some measure of awareness of feelings in themselves and others, a quality which is increasingly identified as emotional intelligence.6 If Daicoff’s research references to lawyers’ dysfunctional behaviours7 can be believed, and if the typical lawyer Myers-Briggs profile emphasises ‘thinking’ over ‘feeling’,8 lawyers might as a general rule be more practised than other members of the community in denying to themselves the importance of personal feelings and being ‘in touch’ with the values that lie beneath a constant focus on achieving tasks for clients. Awareness of feelings strikes some lawyers as a very ‘soft’ skill, but more recent entrants to the profession have grown up with more exposure to psychology than their predecessors and are not so sceptical of its contribution. Lawyers who can recognise their own feelings, for example of fear, hurt or excitement, in relation to challenges ahead of them may assess risk with more precision. There is now much greater understanding that emotions are anything but extraneous to professional life and that understanding feelings can be critical to making good decisions: While strong feelings can create havoc in reasoning, the lack of awareness of feeling can also be ruinous, especially in weighing the decisions on which our destiny largely depends: what career to pursue, whether to stay in a secure job or switch to one that is riskier but more interesting, whom to date or marry, where to live, which apartment to rent or house to buy – and on and on through life. Such decisions cannot be made through sheer rationality; they require gut feeling . . . ’9

Confused feelings make it harder than it ought to be for lawyers to make considered, ethical decisions. Lawyers in this state of mind cannot tell what their ‘gut instinct’, if they recognised it, might regard as morally odious, even if the particular situation could set back their careers. Deciding to act for a new client against a longstanding and loyal current client is a striking example,10 but other 6 Hugh Brayne, ‘Learning to Think Like a Lawyer: One Law Teacher’s Exploration of the Relevance of Evolutionary Psychology’ (2002) 9 International Journal of the Legal Profession 283, 301; Colin James, ‘Seeing Things As We Are: Emotional Intelligence and Clinical Legal Education’, (2005) 6 International Journal of Clinical Legal Education 123–49. See also Michael King, ‘Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Justice’, (2008) 32 MULR 1096. 7 Susan Daicoff, ‘Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism’ (1997) 46 The American University Law Review 1337, 1375. Daicoff’s study preceded the Enron catastrophe by some years, anticipating many of the concerns about accountants’ and lawyers’ actions that later came to prominence when that corporation collapsed. 8 Don Peters and Martha M Peters, ‘Maybe That’s Why I Do That: Psychological Type Theory, the Myers Briggs Type Indicator, and Learning Legal Interviewing’, (1990) 35 NY L.Sch. L.Rev. 169. 9 Brayne, op cit, n 6. Brayne emphasises the importance of feelings in understanding values for everyone, including law students, by citing Daniel Goleman, Emotional Intelligence: Why It Can Matter More Than IQ, Bloomsbury Publishing, London, 1996, pp 6–13. 10 See, for example, Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 (Brooking, Ormiston and Chernov JJA).

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serious challenges might include taking on a tobacco company as a client in the circumstances identified by Judge Kessler, for the express purpose of devising endless strategies to delay payment of damages to victims of tobacco-induced lung cancer.11 Such extreme cases might appear simply to be conscious deceit, but the underlying attitudes might also have developed in the relevant lawyers from a longstanding habit of denying the importance of moral scruples to their own conscience, by suppressing their feelings. Lawyers in these situations can retreat into proscriptive professional conduct rules and argue with gritty determination that if those rules do not prevent something then there are no other appropriate constraints on that conduct. If discussion of ethics and ‘psychology’ irritates their sense of a lawyer’s role and they can find a rule of substantive law or procedure which just might allow them to not think about it too much, that rule will be sought out and relied upon. Rule identification and articulation is, after all, lawyers’ essential skill and expression of ‘social capital’.12 But there are many other factors apart from rules to weigh up for the virtueaware lawyer: for example, being conscious of who will benefit and who will suffer if a major shopping mall is erected on land that is subject to a specific and geographically small Indigenous land rights’ claim; being aware that their client is selling large shareholdings in a company that is rapidly going under, to the detriment of thousands of ignorant small shareholders; or understanding who will suffer if some upstream irrigators’ water rights are not curtailed on a degrading river system. And if lawyers’ decisions must be made in the context of corruption and political expediency that make the legal process itself unreliable in some jurisdictions, they will be especially vulnerable to both outright inducements and more subtle opportunities to increase the size of their bill, if they have not explored what it is that they really ‘feel’ and value and will defend energetically. The worst realisation for some at the end of such reflection might be that they can’t find their values anywhere in the mix, except perhaps the ubiquitous ‘there’s nothing as important as family’. Assuming it is possible for many lawyers to identify their feelings about a contentious choice they must make, then they must also be conscious of what they value if their decisions are to be ethical. Values as here understood refer to a usually private set of priorities that are the bedrock for each person’s beliefs and attitudes: personal qualities such as honesty, loyalty, respect, sharing, etc. Alternatively, in fewer individuals, opposing values such as deceit, faithlessness, disrespect and greed can dominate. Most humans seem to have some of both and occupy a point on a line between each extreme, and similarly in the case of other values. Values do not necessarily determine behaviour, but the mix of values

11 Kessler, op cit. See at 31 August 2006. 12 Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor, University of Chicago Press, Chicago, 1988, p 8. Abbott defines professions loosely as ‘exclusive occupational groups applying somewhat abstract knowledge to particular cases’.

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in an individual does influence decisions.13 It is logical that this connection is one which an ethical and competent lawyer would want at least to understand in their own thinking, in order to limit the risk of contracts unravelling, negotiations failing, clients leaving and firm profit declining. These considerations are also at the heart of professional indemnity risk managers’ growing interest in ethical stability as a contributor to lowering risk to law firms’ operations. If, for example, a peer interview process provided an acceptable numerical rating of the sensitivity to ethical complexity of each lawyer in the firm, then that rating would contribute significantly to that firm’s ethical infrastructure and therefore to stabilisation or even reduction in indemnity premium cost. Lawyers who don’t think about emotions and values very much – or who are not assessed on the quality of that thinking – can also tend to see such concepts as too abstract to be relevant to their daily decision-making. New lawyers think that they simply don’t have time in a billable hour environment to think about the ‘why’ or the ‘should’ when they are struggling so much with the ‘how’. But in fact these individual qualities, whether present, confused or absent, are a key contributor to ethical dilemmas and it is probable that unless lawyers examine where they stand in relation to such issues, some or all of their higher-order decisions about specific fact situations will be unstable (that is, prone to revision) and leave them and their clients vulnerable. Definition of lawyers’ values awareness is not therefore about ‘right’ or ‘wrong’ beliefs and actions but about individual understanding of base-level drivers of ethical (and unethical) decisions. Assessment of values awareness is simply the process that checks to see if that awareness is genuine or contrived. Similarly, assessment of attitudes towards emotional intelligence will back up and strengthen higher levels of awareness of intrinsic values. Lawyers who learn about themselves through credible assessment processes will know what they truly value inside workplace dramas and what their emotional triggers are. As a result, they will be on the road not only to survival in legal practice, but also to longer-term satisfaction in the legal world. Assessment of lawyers’ awareness of feelings and of values are for this reason sensible investments by law societies and firms in retaining highly skilled and expensively trained practitioners; lawyers who might otherwise leave the profession altogether because of moral dismay, emotional difficulty or depression in coping with what is happening around them. However, assessments of individuals’ awareness of feelings and values are only likely if they appear to have some chance of acceptance by lawyers, for otherwise law societies may not be sufficiently interested to invest in the process. This is one reason why an oblique approach to assessment is suggested. Awareness of the importance of these qualities is not the same thing as measuring their actual presence or absence in an individual lawyer – which is presently impossible – but if feasible, would be highly intrusive. Direct assessment of values and 13 Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill Towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252.

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emotions as states of mind or of consciousness per se would require a hugely complex and expensive research process, and is perhaps an unattainable objective without some as yet experimental neurological intervention. And even if technically feasible and ethically justifiable, experimenters would encounter much hostility and suspicion of manipulation among subject lawyers, sufficient to make any direct assessment method unworkable. Accordingly, an indirect approach is needed. Assessment of an individual’s awareness of values and emotional intelligence is the chosen approach, because subject awareness is an accessible cognitive quality very commonly approached through interview and questionnaire. The two brief scenarios below, followed by some questions, provide examples of the sort of situations that may confront lawyers. They can be used by any lawyer to explore their awareness of their own values and emotional capacities. Scenario 1 You are a parent of young children. You work too hard and your marriage ● is strained because of that, but your reputation for success in tackling difficult criminal cases is important to you. You are asked to defend a known paedophile who is charged with rape of a 10-year-old child and who: – has allegedly been picked out of an identity line by that child and other adult witnesses, and – is alleged by the police to have confessed to an undercover witness in an unrelated investigation. You interview your client and he completely denies his guilt, alleging that he is a convenient scapegoat for police because of his history and because he lives in the area near where the alleged offence occurred. Your client appears genuinely resentful of the charge, saying that while he does have a history and that (smiling) he would have liked to have ‘had’ the victim, he was not in the area at the time. A psychologist says your client’s desire for children is undiminished, but wonders at the significance of his apparent resentment about this charge, given that he ‘celebrates’ his paedophilia. Your domestic partner is appalled and angry that you are even prepared to consider defending this man, saying she has had enough and threatening to tell your extended family all about it. The forensic inconsistencies in the police case are very attractive to you but you are also confused and despondent and wonder if you should just hand off the file to someone else. Questions What is important to you about your professional reputation as a defence ● lawyer? Are you inclined to put aside the feelings of despondency and just get on ● with preparing the case? Could you really ‘let go’ and decline a reputation-making case for the sake ● of a quieter life at home?

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Scenario 2 You are the new external lawyer for a major developer of gene therapies. ● Your client has a drug that offers an astounding treatment for infertility in women, but might also lead to an increased risk of some cancers. Your client corporation seems to be able to profit by exploiting the therapeutic approaches of competing but less aggressive pharmaceutical corporations in ways that are not yet clear to you, but are clearly highly successful. One of your more senior partners acts for one of these corporations and has done so for many years, but she is near retirement and losing influence in the firm. You ask her if she is prepared to stand down from acting for her client corporation for the sake of the firm’s future growth. She angrily describes you as na¨ıve and insists that you should be the one who stands down, warning that her client is likely to issue proceedings for an injunction restraining the firm from continuing to represent your new client. Questions How annoyed would you be by the attitude of your partner? What would be the emotional costs for you personally if you backed down? ● What course of action do you think the firm should take and what might ● that indicate about what you value? The following studies also use an indirect approach to assessing values awareness and while they are not directly on point in relation to the desired qualities of awareness, they do emphasise the distortion to both caused by adversarial imperatives. ●

7.3 Research assessments of ethics and ‘complex judgment’ Several empirical investigations support the view expressed in Chapter 414 that adversarial justice systems distort ethical judgment by prioritising clients’ concerns over wider social responsibilities. This does not mean that ethical judgment has ‘gone missing’ or that lawyers automatically behave unethically, but rather that ethical decision-making is under constant systemic pressure in such jurisdictions. And that pressure communicates to everyone involved. Even law students, recently surveyed in the United States, the United Kingdom, Germany, Argentina and Australia, ‘have a low opinion of the trustworthiness and standards of lawyers.’15 Parker’s hope that a culture of ‘responsibility’ might come 14 See, for example, William Simon, ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1083; Carrie Menkel-Meadow, ‘The Limits of Adversarial Ethics’ in DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000. 15 Michael Asimow, Steve Greenfield, Guillermo Jorge, Stefan Machura, Guy Osborn, Peter Robson, Cassandra Sharp and Robert Sockloskie, ‘Perceptions of Lawyers – A Transnational Study of Student Views of Law and Lawyers’, (2005) 12 International Journal of the Legal Profession 407, 427.

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to at least equal the culture of ‘rights’16 remains only a limited prospect while the zealous lawyer walks out of the criminal courts and into the boardrooms of litigious corporations.

7.3.1 Criminal lawyers’ ethics Criminal law is a proper place for zealous advocacy but even in this specialisation, there remain limits. Clarke’s 2003 study of the ethics of Australian criminal law practitioners provides a cogent snapshot of the ethical preferences of 20 advocates attending a criminal law conference.17 This self-perceptions study was small but important, not just because an investigation of criminal lawyers is rare,18 but also because of the internal contradictions which emerged. In general, these lawyers thought of themselves as more ethical than the general public would appear to think: 50% of respondents rated the general ethics of their peers as ‘high’ (that is, one step down from ‘exceptionally high’), but 90% also thought that some criminal lawyers frequently breached the spirit, if not the letter, of the professional conduct rules.19 Did they therefore think of themselves as ethical20 but of their peers as less so, because they preferred their clients’ interests to all others? If so, Clarke’s results suggest a degree of self-denial and lack of awareness of the values that were really determining their behaviour. The specific findings of the survey dispel complacency about criminal lawyers’ ethics, even allowing for the social need of the justified zealot. Thus 35% admitted having given advice to a witness which, if disclosed while given in evidence under oath, would have embarrassed them professionally.21 Just as importantly, 70% thought it was ethical to deliberately silence a client who wanted to tell them ‘exactly what had happened’.22 And 75% said they were more conscious 16 Stephen Parker, ‘Why Should Lawyers Do Pro Bono Work?’, Keynote Address, First National Pro-Bono Conference, Canberra, 4 August 2000, p 9. 17 Ben Clarke, ‘An Ethics Survey of Australian Criminal Law Practitioners’ (2003) 27 Crim LJ 142. Clarke’s study received considerable media attention because of its findings. See Kate Marshall, ‘Ethical Dilemmas Keep Criminal Lawyers Awake’, Australian Financial Review, Sydney, 13 September 2002, 56; ABC Radio National, ‘The Ethics of Criminal Lawyers’, The Law Report, 12 November 2002. 18 A US study by Rod Uphoff, of the University of Missouri at Columbus, investigated the ethical positions of over 700 defence counsel and prosecutors, which shows continuing caution among some US public defenders in ‘allowing’ clients to control the conduct of their criminal trials. See Rodney J Uphoff and Peter B Wood, ‘Allocation of Decisionmaking between Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-Client Decisionmaking,’ (1998–1999) 47 U. Kan. L. Rev. 1. 19 Clarke, op cit, n 17, p 149. 20 ibid. Clarke defined legal ethics broadly as the critical study of the profession’s structures, role and responsibility, of the individual lawyer’s own values, standards, roles and responsibilities (and of the ethical implications of those roles) (p 143). Clarke sourced this definition to Richard O’Dair, ‘Recent Developments in the Teaching of Legal Ethics – A UK Perspective’, in Kim Economides (ed) Ethical Challenges to Legal Education and Conduct, Hart Publishing, Oxford, 1998. 21 Clarke, op cit, n 17, p147. Coaching witnesses has recently become newsworthy, though not in criminal practice. Serious allegations that expert witnesses are not impartial and have subordinated their own views to those of a party’s lawyers, have recently been aired in relation to software piracy and other commercial litigation. See Garth Montgomery, ‘Spotlight on Biased Witnesses’, The Australian, Legal Affairs, Sydney, 14 October 2005, 26. 22 ibid, p 148. The ‘silencing’ issue is, of course, a major continuing sticking point for the criminal bar. It remains the established view that it is appropriate to stop a client from describing what happened because any such description may hinder the running of a defence based, for example, on a lack of criminal capacity due to mental illness. Clarke did not criticise this attitude, taking the view that he was an observer only. On

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of ethical matters after being in practice, than when they first started practising criminal law.23 The small scale of the study limits its utility, but if these findings, and particularly the final observation are indicative of the wider criminal bar, practice experience alone is insufficient to develop the ethical lawyer. Something more is needed. Criminal legal practice remains a powerfully attractive arena to ethical scholars because its ethical dilemmas are played out against a setting of potential conviction and imprisonment for those most vitally interested. Not the least of the factors which both attract and concern ethicists is the simultaneous awareness by a zealous advocate that truth may be suppressed by preventing a defendant from ‘telling what happened’, while at the same time placing an inordinate faith in juries to discern that suppression. In other words, the refusal to acknowledge and bring forward possible truth in the course of a trial (a denial of Kantian fair process) is justified at a utilitarian level by a belief that the jury will, in the end, get the outcome right. For present purposes however, it is doubtful whether criminal advocates – particularly Clarke’s 35% who admit to ‘embarrassing’ behaviour in witness coaching – would be prepared to publicly deny the importance of ongoing ethics education. But to be clear, ethics education will achieve maximum credibility only when it is assessable.

7.3.2 The ethics of commercial litigators In the United Kingdom, Moorhead et al spent a little time on legal ethics in the large-scale Quality and Cost study.24 Although their focus was on client care or ‘centredness’ as a dimension of quality; that is, as a competence issue rather than as a factor in professional ethics, they perceptively warned of the risks of over-identification with client interests as a consequence of a commercial and adversarial legal culture: How do you judge the overall value and competence of lawyers where they advance clients’ interests that are assumed to be antithetical to the broader interests of society at large? This relates to larger questions about whether lawyers exist to deliver outcomes or processes and whether such processes are there to benefit clients or society as a whole. In theory a profession’s existence depends on its ability to solve problems in a way that is practically and socially relevant to its client group and to society as a whole. If this is so, a way of judging or defining legal competence would be to ask the question: does the lawyer improve the position of its clients and broader society? Yet the adversarial dilemma, which is perhaps peculiar to the legal professions, suggests an almost impossible tension between the two. These tensions are echoed in the balance to be struck between outcome and process values . . . [Thus] . . . [I]t is probably wise the contrary, he considered that many criminal practitioners took a very responsible attitude to their ethical obligations. 23 ibid, p 151. 24 R Moorhead, A Sherr, L Webley, S Rogers, L Sherr, A Paterson and S Domberger, Quality and Cost: Final Report on the Contracting of Civil, Non-Family Advice and Assistance Pilot, Norwich, Stationary Office, (2000).

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to see client alignment as a valid constituent of legal competence, but a constituent in tension with broader ethical or professional values.25

In the civil practice arena, empirical studies of legal ethics were less common until major work from researchers began to come out of the United States and the United Kingdom in respect of another intense legal environment – the large commercial law firm. Frenkel, Nelson and Sarat26 explored the nature of litigation and its impact on legal ethics, particularly when that litigation is conducted by the largest firms, in the expectation that the reflections of the judges and lawyers involved would throw light on why otherwise responsible individuals appear to descend into undesirable conduct.27 They concluded that the litigious system’s ‘hyper-adversarial’ orientation, the weakness of firm culture and the lack of judicial supervision of lawyers’ individual behaviour produces an endemic ethical suffocation which is unresponsive to incremental reform.28 Surveyed firms and their lawyers were struggling under the weight of impossible burdens and were disenchanted. Curiously, they were also convinced that solutions to rampant adversarialism lay, if anywhere, within the law firm culture itself,29 because the firm owes no real outside loyalty.30 They also found that there was an attitude of blame-shifting even among those who thought there was a problem with the adversarial system, and that this was an additional barrier to cultural reform. Frenkel et al provide strong empirical evidence of dissonance between law firms’ objectives and individuals’ values. Short of the wholesale replacement of adversarial structures, the authors were not optimistic of marked improvement in litigious ethics. Empirical studies by Chambliss and Wilkins,31 Fortney,32 Kirkland,33 Flood34 and Regan35 all point to similar disenchantments and strive to develop different approaches to improving ethical accountability inside large firms. Many of these 25 ibid, pp 27–8. 26 Douglas Frenkel, Robert Nelson and Austin Sarat, ‘Editorial Discussion: Bringing Legal Realism to the Study of Ethics and Professionalism’, (1999) LXVII Fordham Law Review 697. This article describes Sarat’s qualitative methodology. 27 Austin Sarat, ‘Ethics in Litigation: Rhetoric of Crisis, Realities of Practice’ in in DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000, p 147. 28 ibid, p 160. 29 ibid. 30 The view that regulators might be effective where ethics was not, did not come within their research design, possibly because they were studying large law firms at the height of what might be considered a misdescribed elitism; that is, before the collapse of Enron and other corporations produced the regulatory hammer of the Sarbanes–Oxley Act in 2001. Large law firm cultures are still strong and as yet, the organised profession does not wish to challenge that strength. In the UK large firms are if anything, on the regulatory offensive. Allen and Overy LLP, for example, organised a London seminar on 24 February 2009 entitled ‘Are there better ways to regulate the legal profession?’ at which they argued for separate regulation of the largest firms on the basis that the nature of their clientele and operating environment was outside the remit of the Solicitors Regulation Authority [pdf of Allen and Overy LLP seminar presentation on file with author]. 31 Elizabeth Chambliss and David B Wilkins, ‘Promoting Effective Ethical Infrastructure in Large Law Firms: A Call for Research and Reporting’ (2002) 30 Hofstra Law Review 691; Elizabeth Chambliss, ‘The Nirvana Fallacy in Law Firm Regulation Debates’ (2005) 33 Fordham Urban Law Journal 119. 32 Susan Saab Fortney, ‘The Billable Hours Derby: Empirical data on the Problems and Pressure Points’ (2005) 33 Fordham Urban Law Journal 171. 33 Kimberly Kirkland, ‘Ethics in Large Law Firms: The Principle of Pragmatism’ (2005) 35(4) The University of Memphis Law Review 631. 34 John Flood, ‘Megalawyering in the Global Order: The Cultural, Social and Economic Transformation of Global Legal Practice’’(1996) 3(1/2) International Journal of the Legal Profession 169. 35 Milton C Regan Jr, ‘Taking Law Firms Seriously’ (2002) 16 Georgetown Journal of Legal Ethics 155, 76.

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researchers address the opportunities provided by effective ‘ethical infrastructure’, discussed earlier in Chapter 2, but do not venture into individual lawyers’ ethical assessment. Milgram’s adventurous if highly unethical psychological enquiry into the corruption of judgment was discussed in Chapter 3.36 A final reference to his observations is relevant here because they point to the understanding of complexity as a critical quality in synthesising the various types of human awareness already discussed. Milgram’s investigation was not focused on lawyers, but the implications for the legal profession are considerable, as Luban recognised.37 He has warned that the essence of Milgram’s Yale experiments on the infliction of pain by one human on another is the potential for all humans to discount their innate sense of fairness when the environment or situational context is compelling.38 Milgram’s insight about the corruption of the human preference to obey in a Western, values-diverse culture,39 does not mean that moral autonomy is dead, but it does mean that the confidence to reject both moral intimidation and paternalism and behave with a sense of ‘complex’ moral autonomy, must be nurtured. This process is particularly important for new lawyers. While there are a number of empirical studies that indicate that the human tendency to fairness is also well-developed,40 Milgram’s results show that, 36 Stanley Milgram, Obedience to Authority: An Experimental View, Harper-Collins Torchbooks, New York, 1974, and accompanying text. Ironically, these experiments would now be regarded as completely unethical. 37 David Luban, ‘The Ethics of Wrongful Obedience’ in DL Rhode (ed), Ethics In Practice: Lawyers’ Roles, Responsibilities, and Regulation, OUP, New York, 2000. 38 ibid. 39 Perhaps obedience provides an anchor of sorts in human behaviour. 40 Boudon has reviewed the human tendency to fairness and discussed whether it is genetic in origin or developed as a result of social conditioning. See Raymond Boudon, ‘The Sense of Values’, Seminar on the Theory of Science, Innsatsomradet etikk, University of Oslo, Norway, 1998. Boudon describes the ‘Ultimatum Game’, a social experiment that demonstrated, he asserts, the innate preparedness of humans to share. Referring to James Wilson, The Moral Sense, Free Press Paperbacks, New York, 1993, as arguing that values are a part of the genetic heritage of humans, evident in the existence of sympathy, a sense of fairness, of self-control and a sense of duty, Boudon sets up the game scenario as follows:

‘100 euros are available in the pocket of the experimenter. Subject A is allowed to make any proposal he wishes as to the way in which the 100 euros should be shared between himself, A, and another person, B. B has only the right to approve or reject A’s proposal. If he rejects it, the 100 euros remain in the experimenter’s pocket. If he accepts it, he gets the sum allocated to him by A. With the “rational choice model” in mind, according to which people have no moral sense and would exclusively be concerned with maximising net benefits, one would predict that A would make proposals of the type “70 euros for me, 30 euros for him, B”. For in that case, B would not refuse the proposal and A would maximise his gains. In fact the most frequent proposal is equal sharing’. Thus Boudon asserts that we have ‘strong reasons’ for believing one thing to be ‘bad’ and another ‘good’, etc. Thus over time, our collective experience of democracy versus despotism persuades us that the former is better. We prefer the former for good reasons. Similarly, in the past we believed that capital punishment was a good thing because without it murders would increase. When abolished, homicides did not increase (or decrease) and the death penalty was therefore demonstrated, in many countries, as useless and with that, public opinion changed against it in many places. To explain that stealing is bad does not depend on the consequential argument (that the victim will lose, because it is also often true that the thief will gain) but upon the recognition that stealing violates the basic principle of social organisation that reward = contribution. According to Boudon, these are non-consequential, axiological reasons. Similar reasoning lies behind the discomfort with corruption (because of the annoyance with the lack of congruity between input and output rather than any sense that people will be directly affected). See also Marc Hauser, Moral Minds: How Nature Designed Our Universal Sense of Right and Wrong, Ecco, New York, 2006, which argues in support of evolutionary selection of morality as an aid to human survival. In contrast, Kate Douglas (K Douglas, ‘Playing Fair’, New Scientist, Melbourne, 10 March 2001, 38), while also referring to the ‘ultimatum game’, discusses the alternative possibility that our sense of fairness is a social construct rather than a genetic derivation. If this is the case, it will be possible to promote social organisations that value fairer play. Douglas refers to (but does not cite) research in many different societies internationally

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whatever common aspirations to fairness exist, there are still many situations where circumstances can easily counter an individual’s moral inclinations. Luban brings Milgram’s research into the law firm. He asserts that ‘corruption of judgment’ consequent upon employee lawyers’ inability to assert ethical independence in the face of overbearing pressure from superiors to behave poorly, is likely to approximate the circumstances in which new lawyers may find themselves from time to time.41 When zealous support of clients’ interests dominates the call for fairness or social responsibility, the need for new lawyers to understand their values and the notion of ‘complex judgment’, and to develop the confidence to exercise all in a congruent manner is a sine qua non of legal practice which deserves support. Lawyers’ consciousness of all three is needed to counter both the pressure of ‘superior orders’ and the attraction of a rule-based, black-letter approach to professional conduct. Thus lawyers’ individual capacity for self-awareness of their own values system, of the competing ethical methods and arguments for contrasting behaviours, of their self-contradictions in criminal representation, of the circumstances in which they could be vulnerable to undue influence from team leaders and, finally, of their own ‘bottom lines’ in dealing with such pressure, are all extremely relevant to efforts to assess ethical performance. Inevitably, such comprehensive assessment can only take place when new lawyers have had at least some exposure to workplace cultures and superiors’ expectations. This reality was recognised by the Law Society’s consultants to its Training Framework Review, who – despite the lack of total support from the Law Society on this point – expressed doubt about reliance only on a final written examination to test ethical competence.42 The consultants (Webb, Maughan and Purcell) believed that ethical preparedness in the vocational phase of legal education should be finally assessed by a combination of prepared portfolio, critical incident assessment and face-to-face interview.43 While a test of lawyers’ memory of professional conduct rules is a part of this process, it is misconceived to try to assess ethical sophistication in a written test.44 The portfolio approach to ethics assessment is interesting. A portfolio is a selection of written reports of past ethical events in which the lawyer has been which suggests that the most cooperative societies are the most generous, or fair. ‘ . . . if our moral values are shaped by our lifestyle rather than by human nature – as traditional economic theory holds – then we should be able to promote good social behaviour in the correct social context’ (p 42). 41 Luban, op cit. 42 J Webb, M Maughan and W Purcell, Project to Support Implementation of a New Training Framework for Solicitors Qualifying in England and Wales, The Law Society, London, 10. 43 ibid. Nick Johnson, ‘Ethical Outcomes and the Training Framework Review’, (2005) 8 Legal Ethics 7, 10, also expressed concern about sole reliance on a written test of ethical competence and preferred a final interview to allow this judgment to be made. 44 Empirical investigation in educational contexts suggests that the type of assessment is directly correlated to the depth of student learning. A 2000 study of Australian tertiary students found that students are more likely to employ surface learning techniques when preparing for examinations and deep learning approaches when writing assignments or essays. If this is correct, preparation for a peer-conducted interview to assess ethical consciousness is more likely to encourage depth of learning than is ‘cramming’ for a written test. See K Scouller, ‘The Influence of Assessment on Student Learning’, Paper presented to the Annual Conference of the Australian Association for Research in Education, 4–7 December 2000, Sydney, at <wwwaare.edu.au/00pap/sco00195.htm> at 19 January 2007; JB Williams, ‘The Place of the Closed-Book, Invigilated Final Examination in a Knowledge Economy’, (2006) 43 Educational Media International 107.

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involved. Portfolios allow a lawyer to assemble key pieces of evidence of their ethical ‘competence’. They contain reflections on the ethics issues in those events and clearly have potential in the vocational phase because of the control that can be readily exercised in checking the evidence and its connection to assessable outcomes in large numbers of law graduates. But portfolios suffer from all self-assessment methods in that they do not allow scenario reflection on an ethical issue that is simply missed by a candidate, not to mention the problems in screening out others’ hidden contributions to the portfolio itself. Even critical incident examinations, which work in a similar way to portfolio assessment of specific scenarios but tend to allow only a limited time for candidate reflection, cannot attain the depth required to determine if a candidate really understands ethical typologies and their attendant complexity. Use of portfolios in post-admission contexts has too much potential to self-serve and deflect attention from judging what really matters: lawyers’ understandings of subtlety and nuance. All this is really only possible within an in-depth and face-to-face interview. By the time a lawyer has been in practice for several years, evidentiary portfolios may not be professionally tolerable if available for scrutiny by vocational trainers. In the United States especially, the strong cultures of client confidentiality and perceived threats of malpractice actions may stifle lawyers’ candour. Only the in-depth interview, but conducted as a peer-led exercise and supplemented by limited quantitative information, is likely to have a real prospect of divining an experienced lawyer’s ethical qualities in a cost-effective manner. To conclude, there are as yet no empirical findings which establish a direct link between ongoing ethics training (which would include various assessment processes) and, for example, a reduction in the level of misconduct complaints or client disputes.45 Such connections cannot by definition exist because current post-admission ethics training is not assessable. But the research of Clarke, Moorhead, et al and even – (thanks to Luban) – Milgram, suggests that a common preference or intention to behave fairly can be distorted or manipulated in certain circumstances and that better behaviours are likely if these distortions could be controlled in some way. Distortion of values and the parallel suppression of good judgment occurs most readily in highly controlled cultures, including, Luban argues,46 law firms. The research in this section indicates that ‘forewarned is forearmed.’ If new lawyers get the chance to reflect on: their values, the importance of their feelings and the feelings of others to ● clear decision-making, 45 Personal communication with Ronwyn North, consultant and principal of Streeton Consulting Pty Ltd, NSW, 10 October 2005. North knows of no published work which establishes that ‘ethics awareness’ schemes would reduce the number of complaints of misconduct or unsatisfactory conduct. Further, although she has no evidence for the view, North does not believe there is much of a link between the typical professional indemnity claim author and the typical ‘complainee’. That is, those who are careless are not also likely to be the subject of conduct complaints, except perhaps in the crossover area of costs. If that view is correct, it would support the need for separate assessment of both competence and ethical behaviour. 46 Although there is no other research re lawyers’ experiences to support this approach, Luban’s view is sufficient to argue that there could be a gain in professionalism if the qualities of self-reflection were assessed.

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how they can be incrementally de-sensitised of any moral culpability, and how cognitive dissonance works to expose such desensitising, and are then tested for their understanding of these realities, they may be in a position to better exercise ethical judgment and moral courage. If this is correct, capacity for ethical judgment is a reasonable ingredient in any process of assessment of lawyers’ behaviour. ●

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7.3.3 Lawyers’ status in the firm as an indicator of ethical attitudes The remaining study in this section concerns research by Corbin into the attitudes of 16 Australian practitioners, who were asked about their perceptions of professionalism;47 that is, about their adherence to ethical practices.48 These Queenslanders were divided into two groups of eight; half had been in practice for two years and half for more than fifteen years.49 Semi-structured interviews were conducted to ascertain if these participants tended to conform to the views of the ‘firm’ in relation to professionalism; that is, did they broadly agree with the ethical culture of the firm or not? The older group tended to consider their firm’s professionalism to be satisfactory (since they tended to determine those policies themselves)50 , while those who had been more recently admitted to practice were not comfortable because they were ‘experiencing dissonance . . . [believing that their firms were] pressuring them to “fit in” by following . . . prescribed policies and procedures.’51 The former (older) group promoted a ‘commercialized professionalism’ culture (that is, expert service designed to enhance peer perceptions) while the younger lawyers were more interested in traditional professionalism, with elements of altruism and public service strongly represented.52 The recent graduates felt tension because ‘their understanding of professionalism is being undermined by the “firm” view to which they are being required to conform.’53 Corbin favoured the recent graduates’ viewpoint and suggested that, in order to assist them to retain more of their traditional understanding of ethical responsibility, there was a need to ‘educate individuals about situationism,’54 by which she meant the need to consider context when making complex ethical judgments. Corbin reinforced the importance of utilising cognitive dissonance among lawyers while they are still new to legal practice to limit the potential for “firm” culture to progressively overwhelm any sensitivity to context and complexity. She obliquely referred to a research participant’s view that continuing legal education might deal with these issues, but that ‘practitioners would not 47 48 49 50 51 52 53 54

Lillian Corbin, ‘How “Firm” are Lawyers Perceptions of Professionalism?’ (2005) 8 Legal Ethics 265. ibid, p 274. ibid, p 275. ibid, p 274. ibid. ibid, p 288. ibid. ibid, p 289.

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be interested’,55 and reverted back to the law school as the most likely venue for encouraging this process.56 The importance of Corbin’s research is in its further demonstration of the critical impact of the first few years of legal practice on the ethical sensitivity of lawyers. While her prescription of ‘situational’ training (via CLE) is clearly best delivered and received after admission, it is not of course, irrelevant within formal legal education, where the curriculum includes the best inducement to maintaining interest: assessment of learning. But if poor law-firm culture is generally too pervasive to allow for contextual ethics education of new graduates, there may be a case for profession-wide inducements. The challenge of postadmission legal ethics education indeed, of all legal education delivered after admission, is to be taken seriously by new lawyers. That change may occur if CLE ‘situational’ ethical awareness is introduced by law societies and that awareness becomes assessable. There is nevertheless a structural qualification to the potential positive effects of assessing lawyers’ ethics. It is implicit in all of the above discussion that regulatory vigilance is maintained and that prosecutions of gross incompetence and ethical breaches occur when required and are seen to be occurring. Some jurisdictions will lack the necessary prosecution vigour from time to time and some self-regulated professions can lose track of this imperative. Unless rule enforcement is transparent as a ‘pull’ factor in the profession, the ethical ‘push’ factors are unlikely to achieve their potential, particularly among those lawyers whose behaviour will be improved by the presence of both ethics assessment and prosecutions for misbehaviour, but not just by one. If it is accepted as desirable to assess ethics awareness, would such assessment like this find acceptance among lawyers and will such an instrument make any difference to behaviour? The Melbourne Study (below) offers one view, but different law societies will handle this challenge differently and there is no necessity for precise alignment between jurisdictions, even if that were politically possible. Localised assessment tools can be developed for particular purposes in particular jurisdictions.

7.4 The Melbourne Study: Lawyers’ awareness of values and ethics 7.4.1 Background As discussed in Chapter 2, there are indications from the Australian Lawyers’ Values Study that a personal understanding of those values which appear to be related to intentions about behavioural choices, do bear some relationship to 55 ibid, at note 135. 56 ibid, p 290.

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reported behaviour.57 Such values, especially in women, appeared to have an observable effect, not due to chance, on ethical decision-making.58 Additionally, in their focus group discussions for that study, the workplace behaviours of the first- and second-year respondents59 appeared to be increasingly informed by the values reflection that they commenced at the start of their participation in the research process and were continuing to engage in as they entered practice.60 The plausibility of some connection between lawyers’ personal reflection and behaviour is also supported by scholars who have considered this issue in the context of admission to practice. Barnard’s advocacy of ‘renewable bar admissions’ in the United States, as a method of testing ethics knowledge after admission, is premised on the likelihood of this connection.61 To the extent that awareness of values may have some relationship to behaviour (or, expressed in the negative, that ignorance assists the status quo), it seemed desirable to question interviewees in the Melbourne Study to ascertain whether testing of enhanced values and ethical awareness would be acceptable to practitioners as a useful contribution to improving behaviour. In the following section, interviewees’ reactions to the possible introduction of values and ethics awareness training and testing processes, as a post-admission initiative, are discussed. Although this proposal was most often considered in the context of accredited specialists and interviewees were asked only about awareness of ethical principles as a general concept, Figure 7.1 sets out the major empirical findings in relation to the awareness of values and ethical principles as a general indicator of ethical behaviour.

7.4.2 Opinions of interviewees The main point here is the discussion about whether ongoing testing of values and ethics awareness makes any difference to a lawyer, after their immersion in the practice environment. In other words, will better awareness change behaviour? 57 The Australian Lawyers’ Values Study (2001–03) and accompanying text. It was funded under an Australian Research Council Large Grant to the author as Chief Investigator. 58 Section 3, ‘Alienation of Lawyers’ in Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill Towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252; Josephine Palermo and Adrian Evans, ‘Australian Law Students’ Values: How They Impact on Ethical Behaviour’ (2005) 15 Legal Education Review 1, 12. 59 That is, articled clerks or PLT students (first years) and newly admitted practitioners (second years). 60 Adrian Evans and Josephine Palermo, ‘Law Students’ Perceptions of Their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2003) 5 Legal Ethics 103, pp 247–8, 251–5. 61 See Jayne W Barnard, ‘Renewable Bar Admissions; A Template for Making “Professionalism” Real’, (2001) 25 J Legal Prof 5. Woolley observes that ‘ . . . when considered in light of its philosophical history, and the evidence of social psychology, the premise that character determines conduct can make a qualified claim to correctness.’ See Alice Woolley, ‘Tending the Bar: The “Good Character” Requirement for Law Society Admission’ (2007) 30 Dalhousie LJ 27, 61. Not everyone agrees however. Rhode asserted in 1985 that ‘It is impossible to prove that conduct flows from character, and some have argued that the assertion that it does is largely indefensible.’ See Deborah L Rhode, ‘Moral Character as a Professional Credential’ (1985) 94 Yale L.J. 491, 556–7.

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Testing for Awareness of Values and Ethics Yes, testing is useful ‘... I prefer to deal with colleagues who are ethical – I would not be threatened in addressing those issues in an examination process.’ Test in an examination setting for conflicts’ awareness, for reasoning and capacity to exercise judgment, for the level of pervasive ethical understanding

‘ ... last year, if I had introduced in the exam a ‘fatal’ ethical issue (which we do want the candidates to understand), the question could have been answered quite quickly and the rest of the [technical] discussion would have been unnecessary. May be a case therefore for separate questions re [different] ethics [issues] – but I still think integrated questions can also be discussed, but maybe only if they do not contain ethically definitive issues, leaving the latter to separate questions.’ ‘...we definitely need exams on ethics issues... and because the LIV is swamped with new lawyers and there are predators circling, including in the business specialisations), they should be trying to push very, very hard this excellence thing, which should include ethics – yes it’s a business advantage to people.’ No, it’s an issue, but it’s overstated

‘... perhaps a bit of [ethics], but I personally think that the ethics side of it has been blown out of all proportion.’ ‘...ethics should be more structured and more regular and apply to everybody, not just specialists.’

Figure 7.1: Tree display of awareness of values and ethics

7.4.3 Observations on and interpretation of ‘awareness of values and ethics as a contribution to ethical behaviour’ Some interviewees were not sure about exam-based testing, preferring the indepth personal interview by peers, because of their intuition that this was more revealing of complexity and ethical depth. Yet, the sense that testing was both important and achievable was just as pronounced as the earlier hesitation about the assessment of integrity by psychological testing. Those who were against ethics awareness testing were opposed because they thought it was important for all lawyers or because they were essentially unhappy with the notion that specialisation accreditation should be asked to do more than assess competence. One interviewee was especially unsettled about linking competence with ethics within specialisation, although he had agreed with the notion of preliminary exclusion from specialisation of those with unsatisfactory prior histories: ‘[although specialisation] implies that you have not got

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a negative record . . . I don’t think it needs to imply – the baseline is that you have stayed out of trouble – I don’t think it needs to imply what ethics is all about.’62 One interviewee referred to her speciality environment (family law) to point to regulatory change as the more effective influence on behaviour: I don’t think [an] exam [that tests ethics] will help people to be more ethical. I think the culture will be turned around more by things like the pre-hearing procedures rules, because that forces the practitioner to address the issues [of mediation, consent, etc]. Everybody knows what the right thing to do is, what they should do and what the right answer is . . . and that’s not necessarily going to have an impact I think.63

In fact, however, there was no agreement at all that newer practitioners ‘knew what the right thing to do’ was. If anything, the sense among interviewees was that, despite their uncertainty as to whether a direct, strong relationship existed between practitioners’ increased values awareness and their better behaviour, such a link existed. This is a crucial finding because it supports the reasonableness of testing awareness of values and ethics in the prospect of better behaviour. This linkage – between practitioners’ increased values awareness and their better behaviour – repeated a conclusion of the Australian Lawyers’ Values Study.64 Whether strong or weak, any prospect of linkage was considered by interviewees to be sufficient to justify an assessment of values and ethics awareness. Similarly, interviewees’ perception that assessment for increased awareness of values and ethical principles would improve behaviour was accompanied by a sense that newly admitted practitioners’ understanding of ethics is basic only and that there needs to be a countervailing ethical force exerted on the (often adverse) conditioning process that can set in after admission.

7.4.4 Summary of interpretation: Awareness of values and ethics as a contribution to ethical behaviour In general, interviewees had a strong sense of a probable linkage between enhanced levels of awareness of values/ethics principles and of better ethical behaviour. Whether or not such assessment should occur for all lawyers or just sub-sectors such as accredited specialists was, in a sense, peripheral to their support for the concept of such assessment. The observation was made by some interviewees that the CLE process might well provide the vehicle for such testing, but of course there is no assessment in that arena as yet. 62 Extract from interview with accredited specialist AC7, Melbourne. 63 ibid, AC18, Melbourne. 64 Adrian Evans and Josephine Palermo, ‘Law Students’ Perceptions of Their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2003) 5 Legal Ethics 103. Footnotes relevant to this extract have been omitted from the text for purposes of brevity.

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7.4.5 Neither academic ethics education nor disciplinary prosecution is sufficient Thus far, efforts at harm minimisation in respect of lawyer misconduct have focused on improving pre-admission legal ethics education and in better detection and prosecution of misbehaviour. Both have some positive impact, but neither is sufficient. Assessment for values and ethics awareness could play an additional useful role in improving ethical behaviour. Such assessment ought to be on the agenda for development in the professional life of every lawyer. A judgment as to the appropriate time after admission at which to conduct an initial assessment would be required. Again, indications from this investigation are that the three-to-five year period after admission is appropriate to allow for some experience of practice to infiltrate a lawyer’s ethical consciousness, but not so much as to prevent or check their responsiveness to the tangible feedback provided by this first ethics assessment process. The same process should be repeated at subsequent intervals also, as ethical complacency can set in for an individual lawyer as easily as it can for any other individual.

7.5 Awareness promotes intentionality The ultimate test of any ethical assessment process for lawyers is whether there is a significant reduction in ethical misbehaviour (however defined) as a result of lawyers undergoing assessment of their level of awareness. Without any testing process in place ethics awareness assessment cannot yet be proved to have that positive effect, even if research already reported suggests that heightened values awareness will have some association with better behaviour.65 But there is some prospect that relative awareness of competing ethical viewpoints, not just the ethical principles reflected in conduct rules, could be an indicator of future ethical behaviour because of regulators’ experience in a discrete area of misconduct: theft of trust funds. An important assumption behind the proposal to assess awareness of values is that most lawyers misbehave out of careless indifference or neglect – the sort of indifference that is related to a lack of awareness of values – rather than from conscious intent. Outright criminal behaviour is thankfully unusual in lawyers,66 but in some lawyers there does seem to be degradation in their conduct over time in relation to theft of clients’ money.67 Regulators say that lawyers who steal their clients’ trust funds often begin to do so because they are disorganised, do not appreciate the increasing temptations associated with their barely solvent practices and convince themselves of their underlying honesty, without appreciating 65 Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill Towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252. 66 Michelle Sharpe, ‘The Problem of Mental Ill Health in the Profession and a Proposal for its Solution’, in Kieran Tranter (ed), Alternative Perspectives in Legal Ethics, Routledge, (forthcoming). 67 See, for example, Robert Cornall, ‘Considerable Sums of Money’, (1995) 69(1) LIJ 12.

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that they are actually stealing. Regulators advise anecdotally that lawyers often see themselves, when they are making such decisions, as merely ‘borrowing’ funds to help them through tight financial times.68 Lawyers’ dissonance as to what is really going on seems to be the problem, as observed by Rhode: ‘Much of the problematic counselling that occurred in recent scandals was the product less of conscious venality than of moral insensitivity or indifference.’69 It is plausible that, if awareness of ethical type is measured – though a credible statistic – then that prototype measure (see Appendix C) will provide a basis for development of a larger, composite scale of ethical functionality; and that lawyers’ greater, assessed awareness of values, of ethical type, of the role of cognitive dissonance in decision making and also of ethical complexity, will pay dividends. Particularly where this more widely based ethics assessment occurs some years after admission to practice (when pressures on behaviour are tangible), then there ought to be a proportional and observable reduction in the instance of theft among those lawyers whose numerical measures of these varieties of awareness were considered adequate. However, while a large-scale ethics assessment regime could be expected to improve behaviour and should therefore forestall client complaints, it is unlikely that such assessment will lower the general level of conduct complaints in any observable cause-and-effect manner. There would be too many variables at work. Many client complaints which lie behind regulators’ disciplinary investigations are made for reasons which can have little objective connection to their lawyers’ values consciousness or behaviour. For example, clients can make complaints to try to reduce their bills and because they are often frustrated with the limitations of the justice system, quite independently of what they think of their lawyer’s behaviour towards them. Some also have vexatious personalities and target law and lawyers as responsible for their problems in life.70 Further, any improvement in behaviour associated with better observance of duties to the court might not reduce net client complaint numbers because of an increase in collateral complaints; for example, of overcharging, from clients who felt their interests were sabotaged by their lawyers’ tacit refusal to deceive a court or the other party. Accordingly, even if better values awareness results from testing, that awareness might not be measurable in any overall statistic at the end of the day. But even if there is no legal research to draw on, there are plausible indications that testing for preference as to legal ethical type is likely to have a similar association with better behaviour, as does heightened awareness of values. This

68 Comments made to the author over many years by Victorian regulators. 69 Deborah Rhode, ‘Moral Counselling’, (2006–2007) 75 Fordham L. Rev. 1317, Rhode helpfully restates others’ questions which lawyers might ask themselves in order to test for possible dissonance. Attributed to David Luban, she asks lawyers to check, when their advice is the same as their client wants to hear, whether the advice would be the same if their client asked the same question but wanted a different outcome. To Robert Gordon, she attributes this question: Would a fair-minded impartial observer find their advice persuasive? Or, put slightly differently: How would it feel to defend their position on the evening news? (p 1334). 70 See, for example, some of the histories retold by Simon Smith in Maverick Litigants, Maverick Publications, Melbourne, 2009.

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correlation is plausible because awareness of ethical type is a more sharply focused form of generalised values awareness. When lawyers focus on the differences between ethical types and consider how they individually straddle the differences in type, they ought to be more easily able to relate their generalised values to their legal workplace. For example, a new lawyer who thinks that loyalty is an important value may only have a general or abstract sense of what loyalty might mean in their life experience and struggle with the concrete implications for their professional life; that is, until they appreciate that a strong sense of loyalty will often mean acting as a partisan or zealous advocate for their clients, above all others. And someone who knows that they prefer to speak truthfully will make more connections to that value preference if it is identified in their mind with responsible lawyering. Individuals’ understanding of this ‘values-to-type’ awareness, if assessed, is likely to improve behaviour because the assessment experience should make decisions more conscious and intentional. And the process can operate in reverse as well. So the newly admitted corporate lawyer who discovers that they strongly identify with moral activism as an ethical type could find it easier to make it known inside their firm that they want to work on pro bono cases more than commercial litigation. Similarly, a new tax lawyer who is assessed for their preferred or dominant type and (uncomfortably) discovers their preference for responsible lawyering may be more aware of the regulatory reinforcement for truth-telling within their specialisation. In summary, the relatively new lawyer who assesses their preference for ethical type and consequently understands who they are in legal ethical terms, is likely to be more intentional in their workplace decisions, becoming either a better lawyer or a better something else, before too much time passes and habits are entrenched.

7.6 Measuring a lawyer’s preference for an ethical type Law societies may think that it is better to assess ethical type, if it is to be assessed at all, by exposing lawyers to various hypothetical scenarios or vignettes and even anecdotes71 in an interview environment and seeing how they perform, rather than attempting to develop a quantitative psychological tool to achieve a similar purpose. The qualitative format of interviews permits peers to use an intuitive or gestalt72 process to assess nuance, sophistication and awareness of complexity and to do so with arguably more subtlety than is possible in deriving a single 71 Economides and O’Leary extend this approach further and argue for the use of storytelling as a powerful method of ethics self-examination. See K Economides and M O’Leary “‘The Moral of the Story”: Toward an Understanding of Ethics in Organisations and Legal Practice’ (2007) (10)(1) Legal Ethics 5. 72 gestalt (plural gestalts). A collection of physical, biological, psychological or symbolic entities that creates a unified concept, configuration or pattern which is greater than the sum of its parts (of a character, personality, or being). Australian Oxford English Dictionary, 2nd ed, OUP, South Melbourne, 2004, p 523.

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number. The use of interviews in assessing ethics is entirely appropriate for this reason; but a numerical assessment process complements and strengthens an interview result, it does not replace it. An interview of any credibility will also produce a qualitatively-derived rating, allowing both the qualitative interview and quantitative ratings to be totalled, producing a whole that is greater than the sum of its parts. In Chapter 3, several alternative classifications of lawyers according to their behavioural and ethical qualities were discussed.73 Atkinson considered that lawyers fall into just three categories: ‘for clients’, ‘for justice’ and ‘for themselves’, a system that had little room for the compassionate lawyer. Kohlberg’s far more sophisticated classification had six levels of moral development, ranging from dumb obedience to an almost total moral autonomy at the high end of the scale. Kohlberg’s system has too many options for lawyers to easily identify themselves. At the lower end of the range, virtually no lawyer would choose to agree with blind obedience to authority and at the upper ‘moral’ end of the spectrum where ethics-based systems were rated more highly than rules-based decision-making, the potential for a confused choice is high. While the priority of ethics over rules is one that many would agree with, many would also disagree that rules are inferior to ethics in all circumstances. Kohlberg’s approach to classification runs the risk of alienating lawyers on this point as well as leaving them without a clear choice as to ethical type. It is therefore preferable for purposes of assessing ethical awareness to have a system of ethical classification which has sufficient categories to be useful but does not prioritise one category over another in its moral worthiness. In other words, a system such as that articulated by Parker,74 which approaches each of its four categories as morally valid positions in particular contexts, any of which a lawyer might prefer and identify with in validating their own approach to legal practice. It is for this reason that the four-part Zealous-Responsible-Activist-Carer system is used here. ‘Awareness of lawyer types’ involves a lawyer knowing what the options are and being able to accurately nominate which type they prefer. The hypothesis proposed in Chapter 3 was that lawyers tend to have one basic ethical orientation or behavioural preference which influences but does not always define their actual ethical decisions. As with personality-type indicators,75 the supposition is that while lawyers will typically prefer one type more than the other categories as typical of their own approach, most will also find themselves behaving from time to time with each of these types uppermost in their actual decisions. ‘Lawyer type’ is therefore a shorthand phrase for an individual lawyer’s preferred descriptor of their most common behaviour. It is not a guarantee of a particular behaviour in all 73 See Chapter 3, section 3.3. 74 ibid. 75 For example, the MBTI. An example of an online MBTI test can be found at <www.personalitypathways. com/type inventory.html> at 12 April 2010. Another well-known instrument is the Enneagram, which emphasises psychological motivations to describe emotional outlooks on life. See <www.9types.com/ homepage.actual.html> at 2 June 2009.

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circumstances, because situations will always vary and situational imperatives can dominate some decisions. Empirical evidence for the existence of lawyers’ preferred ethical types is still to be generated, but research has commenced to prove the relationship and develop a numerical measure of lawyers’ self-awareness of their preferred ethical type, according to these categories. The longer-term objective is to construct a psychological scale designed to reliably and validly assess an individual’s ethical sophistication – that is, their awareness of these alternative bases for decision making in legal ethics – and their degree of understanding concerning the overlap in these concepts (of ‘ethical complexity’). Assessing lawyers’ ethics using such a scale would not eliminate thieves or dishonest lawyers from legal practice, but would allow law societies to assert that greater ethical type awareness, and together with the rigour and necessary reflection of the ethical assessment process itself, will go close to eliminating unethical behaviour in a proportion of lawyers and dampen it in others. Numerical assessment of ethical type awareness is conservative and realistic in two senses. First, as explained above, the scale would not indicate whether a lawyer has ‘good’ or ‘bad’ ethics, that is, it could not measure ethics per se. Such an objective would be of doubtful efficacy, even if achievable, because of the lack of consensus as to what is a good or bad ethical position on a wide range of ethical problems. For example, was it ethically proper for the mega-firm Allens to assist James Hardie to achieve its disreputable aims by helping the corporation to move offshore in 2001? One ethical view is that the duty to assist Hardie’s within the law, which Allens certainly satisfied, is superior to all other obligations, but there is another view that even if activity is lawful it is not necessarily ethical. Many such differences of opinion continue even after courts or government enquiries pronounce upon the lawfulness of these activities, because ethical discourse has never considered itself confined to issues of lawfulness. Awareness of complexity within this topic is measurable via a scale, where an absolute such as moral right or wrong is not discernible (or at any rate, is not relevant, given the legitimate nature of diverse opinion on such issues within the profession). Second, this measure of ethical consciousness or awareness confines itself to just one indicator of awareness: awareness of ethical type as explained above. There are other potential indicators, for example, knowledge of professional conduct rules in particular jurisdictions; awareness of underlying principles of moral philosophy (utilitarian, Kantian and virtue ethics) and perhaps the awareness of local common law of ethics. Only ethical type is explored here because the universal nature of these four categories makes them likely to be of use across different jurisdictions with different jurisprudential traditions. As yet there is still no scale which could measure a lawyers’ preference for a particular ethical type. Only the groundwork has been done. And so far there is still no wider scale or combination of scales which aim to assess lawyers’ ethics

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at any wider level. The research described below has a limited objective only: to pilot a measure of an individual lawyer’s preference for an ethical type with sufficient predictive power to be useful for that lawyer; that is, to give lawyers confidence that they do in some degree prefer a particular type over others and, in undergoing the reflection that the assessment process involves, to help them understand the complexity of their personal dividing lines in preferring once type to another, all in the context of a number of hypothetical positions or statements.

7.7 Summary methodology for scale development This measure represents a first step in improving lawyers’ ethics by quantitative assessment. The measure relies upon the bona fides of test subjects and their willingness to undertake an assessment process without excessive regard for how the result will be viewed by others. Since this assessment is explicitly concerned only with an understanding of personal preference as an aid to improving ethical decision-making, and does not contain any inferences as to right or wrong decisions, the process has a reasonable chance of being effective for its purpose. In summary form, construction of this prototype scale involves three stages: 1 Primary statements. Developing a large list of descriptive statements for each ethical type which a practising lawyer would consider applicable to themselves in terms of their preferred ethical type. For example, a zealous advocate might identify with the statement ‘I naturally tend to favour my clients’ interests over other considerations’, as defining of their own ethical approach or preference. 2 Secondary refinement. Considering if suitable statements may be regarded as relevant and comprehensible to the issue of ethical sophistication in three phases: first, by progressively refining the initial list with the help of a consultant empirical researcher and statistician, next through a group of eight hand-picked assessors (‘judges’, in the language of scale development) and then a larger group of 20 randomly chosen specialist lawyers. 3 Final testing. The final stage, yet to be undertaken, will involve administration of the proposed test scale to several hundred lawyers, followed by statistical analyses of the capacity of each statement to predict a lawyer’s ethical preference reliably and validly. Scale development through the first two stages above necessarily means the use of reputable psychological processes, which allow for any efforts by test subjects to produce what they might perceive to be ‘favourable’ outcomes. To this end, the psychometric properties of the instrument and its four sub-scales were established using conventional scale development techniques. Appendix B describes these techniques in detail. The intention in Stage 3 (final testing) is to run reliability and factor analyses to determine which of the proposed statements are the best predictors of each ethical lawyer type, and which are not. Final testing will have sufficient responses to allow statistical analyses and a definitive assertion as to the

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reliability and validity of the instrument to assess levels of awareness of ethical type for administration on a large scale. The penultimate list of 10 scale items per ethical type (that is, 40 statements for the prototype scale as a whole), comprising the four ethical lawyer type subscales of the instrument are found in Appendix C. Note that this list, essentially the prototype scale, provides a methodology for assessing awareness of ethical type: that is, a measure of whether the specialist lawyer interviewees, all highly experienced and reputable, considered the questions to be probative for this purpose. The prototype scale could pave the way for a credible and larger study to determine whether ethical awareness assessment across many parameters will improve behaviour.

7.8 Implications for a comprehensive scale for assessing lawyers’ ethics Experience with this prototype scale for awareness of ethical type suggests that it may be possible to develop larger scale tests for similar indicators of lawyers’ ethics, and perhaps for a composite or meta-scale of various sub-indicators (including awareness of ethical type), designed to allow a single index of a lawyer’s ethics to be constructed. Although both these efforts would involve a major collaborative effort and require considerable investment of funds and research time, they could be achievable for a law society if the social and political value of such an index is recognised. But even if an index of this nature were constructed, it would always represent a mix of both numerical and intuitive assessments, in the same way as the present prototype scale for assessing awareness of ethical type should be used in conjunction with a qualitative assessment of ethical function derived from a peer interview, as discussed below. Use of any scale without comparable intuitive assessments of lawyers’ ethics would be unwise, just as reliance on an intuitive assessment without supplement from an available numerical measure would provide a less than comprehensive indication of a lawyer’s overall ethical function. Neither approach – scale or peers’ intuitive assessment – is foolproof. A scale is limited by its reduction of complex psychological tendencies to a single number; a number which in itself averages out rather than eliminates any potential for lawyers to consciously or unconsciously deceive the rating process. And a peer interview process is open to charges of interviewer bias and incompetence as well as interviewee manipulation of the interview itself. Even if the peers chosen by a law society to conduct a peer interview are highly skilled and strive to exercise their roles with diligence, some will be deceived, just as any job interview or psychological assessment process can be deceived or mistaken. Nevertheless, the combination of a numerical scale and a peer interview reduces the uncertainty of both measures as assessment techniques, regardless of their predictions in a particular individual. Together, they offer each other the

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legitimacy of the whole – something that Stern might equate in medical ethics assessment to ‘triangulation’76 – where neither could hope to be as effective as single mechanisms. If the scale result and a peer interview assessment pointed broadly in the same direction, their individual results would reinforce each other. But if they varied (in direction or by exceeding thresholds yet to be developed), that discrepancy would tend to highlight either a fault in the design or execution of one or both of the assessment methods or an attempt at manipulation, and ought to lead in any event to a further interview to try to resolve the discrepancy. The benefits of this combined, complementary approach to assessing lawyers’ ethics seem to be self-evident, so much so that the case for proceeding with lawyers’ ethics assessment cannot be made convincingly unless each approach is used together with the other in order to validate or challenge their separate conclusions. The development of other quantitative indicators of lawyers’ ethical function could proceed in any of the following areas: 1 Identifying lawyers’ fundamental values, as distinct from whether those values are ‘good’ or ‘bad’. 2 Determining what relationships exist between values’ awareness and subsequent misbehaviour, accepting that lawyers’ values awareness appears to connect to attitudes that influence their behavioural decisions in a number of areas. 3 As mentioned previously, lawyers’ awareness of: possible generic methods for approaching legal professional ethical ● decision-making – utilitarian, Kantian, virtue ethics, local professional conduct rules and disciplinary rulings, and ● case law ethical priorities (including lawyers’ duties to courts versus ● duties to clients). 4 Attitudes to potential conflict between business ethics and professional ethics within legal practice. 5 Reactions to specific scenarios and anecdotes with particular ethical connotations. 6 Awareness of complexity and the need for judgment; that is, the possible means of reconciling all of the above (and often) conflicting ‘guidelines’ in the face of concrete ethical quandaries.

7.9 Assessing ethics through peer interview Economides and Rogers consider that peer interview77 and perhaps the presentation of a portfolio of work78 are promising approaches to ethics assessment. Peer 76 David Stern, Presentation to Georgia State University Law Review Symposium (Jan. 29, 2004) (morning transcript available at , at 10–13). 77 Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’, Section 3: The Challenge of Ethical Assessment, The Law Society of England and Wales, February 2009, p 49, unpublished. 78 ibid; also recommended by Webb, et al, op cit, n 42.

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interview is recommended (and is potentially most attractive to law societies) because lawyers would be interviewing and assessing each other and therefore be in immediate and comprehensive control of the process, much as they are in the various specialist certification programs. The interview approach is also particularly useful because its oral character allows a small group of peer interviewers to gauge the sophistication of a lawyer’s values, attitudes and knowledge of ethical complexity in an environment that can only be partially predicted and controlled by the candidate for assessment. And in terms of confidentiality, it is easier for a candidate to discuss an example of an ethical challenge they have faced than to commit that detail to paper, even on an anonymised basis, in a written examination. ‘Cramming’ for such an interview is also not as easy as it can be for a written quiz about conduct rules. Candidates’ preparation for such interviews would inform them about the assessable qualities, assessment criteria, concepts of ethical type, cognitive dissonance and the powerful influence of situational imperatives, not to mention the relevance of values, systems of ethics and the impact of those conduct rules, but their ability to orally and convincingly respond to vignettes and anecdotes presented to them at the time of assessment only, is not something that could be easily achieved by someone lacking adequate wisdom and experience of practice. To be fair to candidates, the opinion of respondents in the Melbourne Study was that such an interview ought not first occur before a practitioner had had at least three-to-five years’ practice experience, but they were also confident that that period of time would allow an ‘ethical’ and prepared lawyer sufficient experience to display the knowledge and sense of judgment needed to gain the confidence of peer interviewers. The assessment interview itself would involve intuitive, holistic (or gestalt)79 assessment by peers of an individual lawyer’s oral responses to particular vignettes (particularly those extracted from others’ lives) and recitation of their own anecdotes. Intuitive assessment is no more than the ordinary process of developing a judgment based on observation of a candidate’s efforts to meet published criteria. It involves peer interviewers giving careful consideration to those criteria, much as a judge or tribunal member must do on an everyday process in numerous other assessment environments. There is some debate as to which of either vignette or anecdote is more effective, but they each have their advantages.80 Candidates’ discussion at interview of their reactions to ethicsrelated vignettes; that is, to shorter oral situations recounted to them by interviewers, is a highly productive technique. For example, a brief recitation of the story of Marcus Einfeld, the former Australian judge who pleaded guilty to perjury but then insisted just before his sentencing that ‘I’m not dishonest, I just made a mistake’,81 could allow a candidate to reflect on the particular problems 79 gestalt, op cit, n 72. 80 See generally, P Mercer, MA Wilkinson and T Strong, ‘The Practice of Ethical Precepts: Dissecting DecisionMaking by Lawyers’, (1996) 9(1) Canadian Journal of Law and Jurisprudence 141. 81 Anna Patty, ‘Einfeld: I Just Made A Mistake’, The Age, Melbourne, 23 March 2009, 4.

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lawyers face with cognitive dissonance and self-deception. The ‘real-life’ quality of these episodes compels a candidate to take the assessment process seriously. Consideration of standardised scenarios or vignettes offers comparability across candidates, obviously crucial in comparative rating, and can help a candidate to relax because they need not engage so personally with the subject matter. But vignettes are also indicators of a candidate’s possible action rather than reports of actual personal behaviour and can permit someone to talk distantly about others’ experiences rather than their own. In contrast, anecdotes (that is, reports of critical incidents in the candidate’s professional life) can offer the gold standard of actual behaviour to peer interviewers if the candidate is (no pun intended) candid. Good peer interviewers, lawyers all, can be expected to determine such candour with some confidence, but candidates’ self-choice of a suitable anecdote to mention is likely to put up fairly benign content unless the circumstances are profoundly favourable to the lawyer concerned. There might not be too much direct self-exposure of any moral quandary, even if in the telling of the incident they are likely to be providing more subtle information to interviewers about their ethical stance than they imagine.82 As in previous discussions of this issue of methodological diversity, the best approach must be to use a combination of vignette (for comparability of candidates) and anecdote, for the opportunity the latter seem to provide for greater insight into an individual’s character. Candidates’ responses allow interviewers to build up a set of impressions which go well beyond what is possible through the use of multiple choice or true/false quiz tests. Appropriate vignettes or scenarios will differ between jurisdictions because of cultural and procedural variation, but they will help a candidate to demonstrate their understanding of the complexity of specific and commonplace ethical dilemmas if they are developed from real-life examples as in the Einfeld case above, and then varied somewhat to ensure that candidates’ preparation takes them only so far. The reported cases and the literature from different jurisdictions show that the following four areas are among the most common and challenging for a lawyer to respond to adequately: conflicts of interest between classes of clients (current and former), and ● between the lawyer and their client(s), client over-dependence; that is, preferring clients’ interests to arguably ● more important moral and legal obligations to courts and even the community as a whole, whistle-blowing: when should silence about a client’s plans turn into active ● reporting? and over-charging: how much over-billing is acceptable? ● In their discussion of their responses to both vignettes and anecdotes which focus on these areas, candidates could be expected to vary considerably in their 82 Mercer, et al, op cit, n 80, pp 147–8.

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self-confidence and ethical sophistication, particularly in the early days of such assessment as the profession develops the training programs needed to adequately prepare candidates and to refine their awareness of issues of ethical complexity to the maximum extent possible. More of these early candidates will inevitably under-prepare and ‘fail’ (that is, show too little awareness of ethical principles and their interrelationships), requiring a ‘re-sit’ at some later point. These early variations will permit the panels of interviewees (ideally, each of three individuals in order to balance a variety of opinion with cost considerations) to develop their experience in rating candidates and construct rating templates that suit local legal cultures and community expectations. ‘Re-sits’ would be time-consuming, especially in the early stages of developing local testing mechanisms, but they also serve another valid purpose that compensates for the additional effort. A candidate for an initial ethics assessment might perform poorly at interview even if they have been admitted to practice for some time. They may have had too limited an experience due to the type of work undertaken or simply failed to develop the maturity necessary to ‘see’ complexity or shades of meaning in ethically challenging environments. Peer assessments of inadequate ethical consciousness and complexity ought to be reconsidered in further interview(s) to reflect changes in candidates’ awareness over time; that is, after an initial failure to rate well enough, without restriction on the candidate’s ability to practise. Lawyers’ ability to mature is important and thankfully common, as Woolley recognises in the context of initial judgments about the fitness of a candidate to be admitted to practice: Character is not fixed . . . The Law Society of Upper Canada has consistently emphasized that character can change with time, and that the relevant question is the character of the applicant at the time of application, not some prior moment; the relevant test is the applicant’s ‘good character at the time of the hearing.’ The Law Society notes that the ‘transition from being a person not of good character to one of good character is a process, not an event. It may or may not happen to someone who was not of good character.’83

Initially, a simple and conservative approach to this qualitative (but numerical) rating is likely to be the most useful. For example, each interviewee would be able to record a candidate’s performance as either poor (0), satisfactory (1) or superior (2), for each of a number of assessment criteria. These criteria would differ according to the jurisdiction, but there is also likely to be some agreement among interviewers from all jurisdictions as to what is an adequate ethical understanding, in much the same way as Olympic diving judges are able to identify good performances when assessing subtle differences between divers of many backgrounds in the diving pool. Until panel experience is developed, a minimum rating ought to err on the side of generosity to limit the risk of unfair assessments. The rating of a single 83 Alice Woolley, ‘Tending the Bar: The “Good Character” Requirement for Law Society Admission’ (2007) 30 Dalhousie LJ 27, p 37.

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interviewer would be summed with those of the other two interviewers on the panel to get a composite result. Reflecting an initial conservative approach, if two out of three interviewers considered that a candidate had an acceptable rating in each of the criteria, they would consider the candidate to have ‘passed’. Interviewees in the Melbourne Study showed a strong preference for an ethics assessment process to occur at three or five years after admission to practice, to allow enough time and experience to be developed by candidates for assessment. One or two interviewees thought that 10 years after admission might be a better interval, but such a lengthy interval between admission and initial assessment could allow too much time for ‘bad’ ethical habits to develop and might make it too difficult for a poor performer to learn from the assessment experience and go about the necessary attitude development. No opinion was expressed as to the interval that should elapse between subsequent ethics assessments, but a fiveyear period could be acceptable, in order to balance the currency of assessment with the overall expense of the process as an ongoing quality assurance strategy for the profession.

7.10 Template example of a peer interview assessing lawyers’ ethics Approaches to peer interview and assessment will differ between jurisdictions for local reasons. However, a template for an in-depth law society interview of a practitioner which might achieve the above objectives could look like this: Interviews to Assess Lawyers’ Ethics Introduction for Participants Direct assessment of values, emotions and ethical principles would require a hugely complex, invasive and expensive neurological research process. This is practically unattainable in the short term and involves doubt about accuracy and compromise of lawyers’ independence. Accordingly, an indirect approach which focuses on a lawyer’s awareness of these qualities is preferred, because such awareness is an accessible cognitive quality very commonly approached through interview scenarios and questionnaire [see Appendix C]. Interview Assessment Criteria An individual lawyer’s oral responses to particular ‘real life’ vignettes will ordinarily encourage that lawyer to take the assessment process seriously. Similarly, recitation by lawyers of their own anecdotes (that is, reports of critical incidents in their professional life) can provide an insight into actual behaviour. Peer interviewers’ comparison of responses to the two types of reflections will give an insight into whether awareness of the following dimensions of legal ethics, in each environment, is genuine and considered: – consciousness of own values (the mix of private priorities such as honesty, loyalty, respect, sharing; or alternatively, deceit, faithlessness, disrespect and greed) and feelings/emotions (emotional intelligence), – of the ethical methods, types and principles that flow from differing values and of the relationships of these factors to any relevant conduct rules,

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of the judgment that is needed to weigh up which of these methods, types and principles should apply in different situations and in different contexts, of uncertainty associated with ethical complexity; that is, the ability to see all sides of an ethical debate and being able to explain to a panel why, as a lawyer, they prefer one ethical position over another, of bona fides (or virtue and courage) in attempting to respond to such uncertainty, how lawyers can be incrementally desensitised of any moral culpability, and how reflection on cognitive dissonance works to expose such desensitising.

Three Vignettes In respect of each of these criteria, a three-person interview panel of peers should ask each candidate lawyer to analyse their attitudes to each of the following vignettes (of which each candidate would have only limited time to familiarise themselves with) and may separately assess responses as inadequate (0), acceptable (1) or superior (2). These vignettes cover some of the most commonly experienced ethical challenges for lawyers in Western jurisdictions: conflicts of interest, client over-dependence and the pressure on employee lawyers to conform to law firm cultures. 1. Conflict of Interest Backup Partners are a Melbourne-based commercial law firm that is poised to break into the second tier of legal practices. Backup are well-regarded in media and telecommunications law throughout the Asia-Pacific region and have guaranteed access to government legal work, having achieved coveted ‘panel status’ with the Department of Foreign Affairs and Trade (DFAT). Their managing partner, Greg Dureau, a member of the Law Council of Australia, wishes to dominate the sports and entertainment law scene in the Eastern states. He has just acquired a Sydney criminal law practice, TacsRus. Senior partner of TacsRus, Kerry Tacs, specialises in crime but has been developing a more important sideline: handling the tax affairs of entertainment identities. Tacs has been working on techniques for minimising and disguising her clients’ income from various sources. Neither Dureau nor Tacs realise it, but at the time Tacs is about to join Backup, she is under covert investigation by the Australian Tax Office (ATO) for her involvement in heavily promoted schemes to reduce her clients’ tax liabilities. It is rumoured inside the Law Council that one of the matters which the ATO is looking into involves TacsRus’ representation of Joel Khemlani, a multimillionaire 3G mobile phone reseller who is closely connected to the Australian Government and has been increasingly involved in the Afghanistan civil reconstruction program. Khemlani has been persistently linked on the internet with Canadian allegations that he organised inflated mobile services contracts involving kickbacks to members of the Afghani Government. Khemlani is separated from his wife, who has launched family law property proceedings against him. Coincidentally, she is represented by another Melbourne firm in which Backup has just acquired a substantial shareholding under the incorporated legal practice provisions of recent Australian legislation. At the same time as the ATO executes a search warrant at Backup’s offices, seeking evidence of Tacs’ transactions, Khemlani’s estranged wife applies for a Family Court injunction restraining Backup from acting for Khemlani on the basis that her confidential financial information is now probably available to her husband and will be used against her in forthcoming family law hearings. Simultaneously, Dureau is alarmed when he is taken aside at a Law Institute Council meeting by another member and discretely asked whether Khemlani’s troubles are likely to pose a problem for DFAT.

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Dureau is furious with Tacs for involving him and, by implication, the Law Council, in these complexities but resists termination of the TacsRus acquisition because the rest of Tacs’ client list is just too lucrative. So he insists that she and the rest of her team stay in their existing offices in Sydney rather than move in with the rest of the Backup staff in Melbourne, until all problems with the ATO and Khemlani are resolved. 2. Client Overdependence Marconi and Partners (M&P) are somewhat self-important communications psychologists, specialising in helping management teams in private companies to understand each other better and work towards mutual goals with fewer conflicts. M&P obtain the licence from a Californian psychologist to use a new type of personality inventory in their business. M&P’s licence fee for the inventory is calculated per month in US currency and soon amounts to several hundred thousand dollars. But sales are not as fast as anticipated because of an international economic downturn. The partners begin to worry about a large cash shortfall and look for a way to minimise expenditure. M&P offer Dennis Di Nueto, a successful sole practitioner from suburban Melbourne, a share in their business if he will get them out of the problem they have with the licence fee. M&P claim that they have been deceived by the US owner of the inventory as to its usefulness and that they were not and could not have been aware that it would not be well received in Australia. Denis is a bit sceptical but recognises that M&P may have a case. He calls in his friend Guy Chay, a senior lawyer with a known ability to solve debt problems. Chay advises that Denis begin proceedings against the US psychologist on several grounds, including fraud. M&P readily accepts this advice and the proceedings are commenced. 3. Employees Conforming to Firm Culture [see ‘Round-up Hours’ scenario, Figure 2.1, Chapter 2].

7.11 Accumulating assessment ratings to produce a composite rating or index If a lawyer received an acceptable rating on one measure of ethics functionality (for example, the peer interview) but not on another, law society assessors, or their delegates within CLE providers, would be faced with a choice: should they accept the positive rating on a single measure as sufficient and ‘pass’ the candidate, or should they require an acceptable rating on a majority of measures or indeed, all measures? If there were reasonable certainty that each single measure of ethical sophistication was accurate, major differences in results between measures should not be recorded for single individuals. But there can be no such certainty because each technique has its limitations and this is the reason why multiple measures are suggested. In fairness, individual candidates might therefore expect to pass their overall assessment if at least a majority of the measures upon which they are rated record a satisfactory result.

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In addition, law societies might in due course choose to produce and make available to each candidate a summed or composite ‘score’ for their rated performance across a number of measures. This approach would deliver a final confidential number to a candidate of their ethics rating, allowing for greater subtlety in the accountability of the rating process and permitting a candidate to question, consider and possibly seek a further assessment under one or more measures, should they wish to do so. Ideally, such reassessment should be encouraged, since the first purpose of the whole exercise is to improve a lawyer’s potential for better behaviour rather than criticise it. Another assessment issue of major significance must also be considered. In the early stages of any ethics assessment process, it will be important for law societies or their delegates to be willing to learn from the assessment experience and vary rating criteria and assessment measures if it appears that the above suggested approach is inadequate. Some variations of this nature are inevitable, but it will be vital to the credibility of the assessment regime as a whole if the initial groups of candidates for assessment are only assessed in provisional terms and that the local profession understands that the assessment process will be trialled in this way for some time, pending refinement of the techniques under study. As this assessment regime will be unprecedented, it would be unfair to any early candidate or cohort of candidates to proceed in any other manner. The major likely variation in assessment which would follow early experience concerns the decision as to what is a reasonable minimum rating, either for separate measures of ethics function or in the more sophisticated composite rating. Apart from the comments already made about this issue, it seems premature to comment further or speculate as to what might emerge from early experience. There will be little alternative but to see how assessment proceeds for some time. However, what is clear is that these uncertainties mean that any individual ‘failure’ in an ethics assessment, so determined, should be both confidential and regarded as incomplete, pending reassessment when there is more confidence that changes made from experience have had time to improve the accuracy of results. Such lawyers would ideally be asked to resubmit themselves in 12 or 24 months for another assessment, with specific acknowledgement that earlier results were not considered sufficiently fair or accurate.

7.12 Consequences of an inadequate assessment rating It will be strongly argued that a lawyer who receives a poor ethics assessment rating could nevertheless be a ‘good’ lawyer in the sense that their actual behaviour might be on a much higher ethical plane than their values, preferred ethical type and expressed attitudes would suggest. This argument can be made most plausibly in the proposition that the professional and financial cost of development of any number of methods of assessing lawyers’ ethics has to eventually

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depend upon there being a positive statistical association between better awareness and understanding of ethics and lawyers’ improved behaviour, or at least some observable and connected reduction in reports of behavioural problems. The fact that that association cannot be demonstrated beforehand and, by definition, cannot even be realistically approached except with a long-term study undertaken some years after an apparently stable assessment regime is established, does not diminish this criticism very much. But the profession will be further weakened if an insistence on observable cause-and-effect as a reason for inactivity (even if this seems a reasonable view) is allowed to hold sway indefinitely. Those law societies who feel they need such clarity before committing development resources will be able to maintain a rational inactivity, particularly in an era of diminished economic activity. And federal law councils or associations who need this level of certainty before proceeding with ethics assessment will also be able to maintain the status quo. The profession as a whole might have a solid if narrowly defensible reason for doing very little about improving lawyers’ ethics, except for one important point. As is clear from all previous chapters, legal ethics are just as much about values, attitudes and capacities as about consequential behaviours. Who we are as lawyers matters as much as what we do. The state of mind of an individual lawyer, including in particular whether that state of mind is virtuous in the sense explained in Chapter 3, is at least as important as any acts that might flow from that ethical attitude. Of course, virtue ethics goes a little further and asserts that it is the character of the actor, rather than the acts themselves, that is important, but the assessment of values and attitudes does not objectively require that there be an observable link to actual behaviour, although that is the expectation. As Woolley again observes in the context of admission to practice: . . . [T]he definition of good character is linked to morality and ethics. It is one’s ability to do the right thing – to act in the right way – which constitutes one’s good character . . . Good character is thus defined not simply as a matter of moral behaviour, but also as a matter of having the virtues which will result in moral behaviour.84 [emphasis added]

Does it matter therefore that actual behaviour, as opposed to intentions or awareness, cannot yet be completely tested or is never susceptible to testing, except in the post facto disciplinary sense? The answer is that it should not matter, providing the expectation of a connection between assessed ethics and subsequent behaviours is reasonable. And it is the comprehensive assessment of awareness of values, ethical methods (or principles), ethical type, and particularly the capacity for complex, situational judgment that makes the connection between the two defensible. This sort of assessment offers a method of consciousness-raising sufficient to bridge who the lawyer is with and what they subsequently decide to do, providing the assessment process also has some practical consequences for lawyers. 84 ibid.

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When ethics assessment measures are considered stable, and this could take a decade, the logically necessary and final stage of the whole exercise will need to be confronted. There is clearly little point in a state, provincial or national law society, particularly a law society watching its back to see what a regulator might do, investing in the infrastructure to develop an ethics assessment process if there are no consequences whatsoever for a lawyer with several failed assessments behind them. More importantly, lawyers themselves would also reasonably regard an ethics assessment regime as entirely laughable if there were no consequences for failure, once trial processes had concluded and rating stability had been achieved. An individual lawyer who at, say, five years after admission to practice is unable to achieve a minimum ethics rating, whether expressed simply as ‘satisfactory’ or in the form of a number or both, and who cannot achieve improvement after again submitting to an assessment, is a practitioner who may not have appropriately ethical attitudes and approaches to legal practice. Their disciplinary history might still be ‘NIL’, but their actual behaviours would not be the issue. If such a lawyer’s ethics rating was inadequate, the likelihood of some negative impact on behaviour would be enough to require some consequences for the individual. The most productive consequences of an individual lawyer’s ‘failed’ rating in such circumstances, in keeping with the objective of overall ethics development via assessment, would be a licensing review, offering the lawyer in question all the protections of a ‘show-cause’ process. Of course, a law society administering an assessment process might not have the power to conduct such a review, let alone to suspend a practising certificate, but their recommendations to the regulator would be credible. The result of that review might not be up to the law society in question, but that society would have fairly discharged its obligations to its member and to the community at large, in its creation of an ethics assessment process.

7.13 Recommendations: Achieving and sustaining lawyers’ ethics Conversion of the present lukewarm approach to developing lawyers’ ethics requires both emulation of medical ethics education and the use of entirely new tools suitable only for lawyers. In particular, law societies should consider the following initiatives. Acceptance that assessable legal ethics education of lawyers is necessary. ● Acknowledgment that an individual lawyer’s awareness of their own values ● and of what has become known as emotional intelligence is an assessable characteristic of all ethical lawyers. Acknowledgment that while there are few if any ‘correct’ ethical positions, ● an individual lawyer’s awareness of their preferred ethical method and

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type, of ethical complexity and their capacity to make judgments about an ethical course of action in particular circumstances, are assessable characteristics of all lawyers. Institution of appropriate combinations of qualitative peer interview and numerically scaled instrument(s) to initially assess the above qualities in each lawyer between three and five years after admission to practice (if cost allows, such assessments ought to be repeated at later intervals). Acceptance that a lawyer’s ‘failure’ in an ethics assessment exercise gives rise initially only to further opportunities to undertake assessment, pending subsequent review of their license to practice by a regulator, with appropriate ‘show-cause’ procedures in place.

8 Entrenching ethics assessment

8.1 Improvements, not solutions Significant cases of legal practitioner misbehaviour in the Australian context provided the impetus for this book; but the literature and research confirm wider international concern for ethical legal conduct in all developed jurisdictions. Criticism about overcharging, conflicting behaviours and insufficient commitment to social obligations are all part of the picture. In short, although many good lawyers continue, as ever, to try to make a difference, individuals and firms are seen too often to be there for themselves and for their client of the moment, rather than also for a wider commitment to ethical practice. The fact that anecdotal distaste for lawyers’ activities is perennial does not limit the urgency of challenges from many quarters. Among them are competitive pressures from non-lawyers; external regulators’ scrutiny and restriction of historic privileges (especially complaint handling and legal professional privilege); new lawyer disillusion, depression and then early departure after significant intra-firm training; partners’ caution about their fellow partners;1 employee identification not with the profession per se but with the firm, corporation or government which employs them; and the self-expressed culture of total commitment to the firm, for those that remain. All these influences contribute to a stressful workplace and a dimmed vision as to the importance of ethical lawyers. The need for ethical lawyers is self-evident, but deciding how to nurture them in greater numbers has proved elusive. Broadly speaking, law schools have had as little success in this task as the profession. Every effort to strengthen ethical 1 One Australian law firm partner was quoted as saying in 2005 that ‘we are all in partnership but my biggest competitor is sitting in the office next to me.’ Extracted from ‘Far From the Glamorous Profession in “LA Law”’, Lawyers Weekly, Sydney, 16 December 2005, 20.

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behaviour has come up against more powerful cultural forces in wider society, some of which could be threatened if there were an effective way to consistently monitor and improve individual lawyers’ behaviour. Such cultural influences are outside the scope of this book, except to the extent that monitoring has the potential to short-circuit lawyers’ preoccupation with financial success. But another part of the reason such monitoring has been difficult has been the technical difficulties and costs of the monitoring process. These difficulties continue. While it might be possible to technically assess whether an individual lawyer adheres to ‘desirable’ ethical positions, no-one can decide which position is ultimately and always superior, even if pluralist societies would ever countenance single-minded ethical positions. The discussion of competing ethical bases in Chapter 3, which discussed several classification systems, made the point that no single ethical approach is superior to another in all circumstances. And to this objection might be added a range of concerns associated with religious prescription, State-sponsored surveillance potential and even the prospective abuse of genetic engineering.2 While the reality is that predesignated ethical superiority is an inquisitorial nonsense, there are nevertheless some more fundamental indicators of ethical ‘functionality’ which can be promoted fairly and usefully. Interviewees accepted that a capacity for ethical sophistication is very important in lawyers and could be assessed by a panel of peers. Thus, instead of trying to identify a lawyer’s ‘best’ response to an ethical problem, such a panel would look at the extent of awareness of values diversity, of ethical methodologies, of the contrast between adversarialism and other models of ethical lawyering, of the processes of cognitive dissonance and hence the capacity for complex ethical judgment. Interviewees were often of the view that peer-panel assessment of ethics functionality would be costly, but remains intellectually reasonable. There is also a basis to accept numerical assessment of awareness of ethical type and perhaps of other indicators of ethical consciousness. Whether an individual will actually have the courage to make and act on a complex ethical decision3 appears beyond current measurement, but the awareness or consciousness of the opportunity to do so is neither insignificant, nor unapproachable as an assessment goal, if the judgment of peers as to an individual’s capacity in this area is seen as legitimate. Nevertheless, being ethical means quite a lot to most lawyers and still holds something out to their clients. Practitioners of law are needed, but they are 2 If an ethical perspective were, at some point in the future, officially designated by the State (by analogy to the Nazi classification of ethnic diversity as genetically unacceptable), then that perspective might be engineered at the foetal stage of life. 3 Nicolson and Webb comment on na¨ıvety as an objection to testing for greater ethical awareness, because it would not stop determined immoral behaviour: ‘While our contextual approach may allow those bent on immoral behaviour to evade sanctions if they go through the motions of purporting to consider all relevant contextual factors before acting . . . we believe that in the long run it may lead to an overall reduction in lawyer immorality. This is because fewer lawyers should engage in immoral behaviour due to ignorance, indifference or a failure of ethical imagination.’ See Donald Nicolson and Julian Webb, ‘Editorial: ‘Public Rules and Private Values: Fractured Profession(alism)s and Institutional Ethics’, (2005) 12 International Journal of the Legal Profession, p 286.

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needed not just for any expertise applied to clients’ concerns, but also for their potential integrity and service to society. An evolutionary clock may therefore be running on lawyers’ social utility, as professionals. If their attention to matters of integrity flags or is sidetracked by too much concern for profitability – in other words, if the overarching utility of personal integrity is allowed to further recede – other social mechanisms may emerge to narrow the market for services delivered by lawyers. The evidence of the cases, of ongoing examples of lawyers stealing from their clients’ trust funds and of numerous studies described earlier, all suggest that ethical failures are likely to be a mixture of organisational and structural inadequacies in law firms, personal depression and occasionally, greed and criminality; but they also make it clear that much of the downward spiral begins with a confused or ‘dulled’ sense of ethics: that is, an absence of values awareness and ongoing ethical development, rather than a sudden intent to deceive. Law societies could take a lead from medicine in limiting behavioural dysfunction in lawyers, for example, in the mental health field. Sharpe suggests that a cooperative effort by law societies, law schools and regulators could help solve lawyers’ mental health problems. She cites the Victorian Doctor’s Health Program (VDHP) initiative4 as successful in reducing complaints to the medical regulator resulting from doctors’ ill-health and asks, could the same intervention model could work for lawyers? The VDHP model is funded by a levy on doctors’ registration fees and allows independent staff employed by VDHP (as opposed to clinical colleagues) to assess doctors not coping in clinical settings and inviting those individuals to participate in remedial health programs. Since such invitations are initiated on the basis of VDHP staff assessments, any problem of doctors’ ‘failure to report’ is avoided. Applied to lawyers, there would be no need for a discrete referral from a judge or a complaint from a client to surface before others become aware that someone is in psychological trouble. This medical model is important because it shows that something else is needed in the legal profession: something not dependent on colleagues reporting their concerns or any judicial initiative. Much better personal awareness and understanding followed by ethics assessment is that something else. However, there is no automatic solution to unethical behaviour. The dominance of the business model and hourly billing in law firms and their relationship to ethical corner-cutting and worse means that no ethics enhancement initiative will provide a ‘solution’: at best, there will be improvements. The assumption in the legal ethics debate is that better, profession-initiated structural systems surrounding client care, lawyer-care, attention to fairness and access to justice will encourage those who are willing to change. Some will take up these opportunities in a similar way to the medical profession, as described by Sharpe. However, those who should not be in legal practice anyway (for example, because their motivation is primarily monetary), will be untouched by such appeals. But some 4 Michelle Sharpe, ‘The Problem of Mental Ill Health in the Profession and a Proposal for its Solution’, in Kieran Tranter (ed), Alternative Perspectives in Legal Ethics, Routledge (forthcoming), p 28.

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of those individuals will respond if their individual behavioural propensities are assessed after they enter practice. Accordingly, were the profession to pay attention to the structures of law firms that promote ethical behaviour but not to the structures for supporting and licensing individual lawyers, only half of the misconduct playing field will be addressed. Ideally, assessing lawyers’ ethics is best undertaken through a mechanism that already exists and is understood and financed by the legal profession: that is, continuing legal education (CLE) or continuing professional development (CPD).

8.2 The Melbourne Study and CPD Interviewees in the Melbourne Study were positive about the potential of CPD generally and specifically in relation to the possibilities for its use in ethics assessment. But CPD has not reached its potential. In a number of jurisdictions, efforts to improve ethics through continuing education have taken the first step with the introduction of mandatory attendance, but with none of the concurrent issues of quality or participant understanding currently monitored, there is little evidence for hopeful pronouncements by professional leaders that CPD is, at present, appreciably improving very much at all. One interviewee in the Melbourne Study judged the common, rules-based approach as too rigid and not allowing for the pervasive nature of ethics in law: CPD emphasis should include more than just [the] technical – the ethics and the social aspects of the accreditation. There’s nothing saying you need to go beyond the technical requirements. [CPD] allows people to focus on the technical and never go beyond that.5

Another interviewee, in commenting on the possibility of assessment of learning within CPD, expressed her own ambivalence: ‘I’d hate to do exams again, but it’s a bit like retesting for a driver’s licence. I see people who . . . should know better on some basic issues . . . ’6 , but there was still implicit recognition in most interviewees, and express recognition in a few, that CPD provider accreditation and participant learning assessment was legitimate. Interviewees were very critical of the varying quality of CPD courses, describing many of them as sub-standard and ‘mickey mouse’. In this slang expression they were pointing to a cultural problem in all CPD delivery – the accreditation of providers – and this issue is one that will have to be addressed if credible ethics assessment is to proceed. Assessment of learning might be introduced without accrediting providers, but the strong negative opinions about many courses currently on offer suggests that any requirement to assess lawyers’ learning would bring the indifferent nature of many offerings even more firmly into the spotlight 5 Extract from interview with accredited specialist AC9, Melbourne. 6 ibid, AC5, Melbourne.


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and make law society, or even external regulator prescription of those providers, unavoidable. In other words, inferior CPD courses can be tolerated by the organised profession as long as there are also quality courses on offer (of which there are certainly many, including those run by the law societies) and no-one actually has to show that they have learned something; but, as soon as learning has to be demonstrated, sub-standard providers have to be weeded out on some basis – ergo, accreditation. On the other side of the ledger, accreditation of providers as organisations might commence without any assessment process for participants, but it would not be too long before those providers who have been accredited (and who operate in competition with one another) would want to demonstrate that their accreditation is superior to others – ergo, assessment of learning. If ethics assessment is introduced, so inevitably must providers be accredited and vice versa. Up to that point, the relevant law society would have to fund the cost of developing accreditation standards, but all along they will also need to persuade their members that it’s all necessary and non-negotiable. Accreditation assessment is a significant project and not one which the major law societies are likely to willingly commence of their own initiative, unless there is national leadership in each jurisdiction and a more sophisticated cost-benefit analysis is embraced. On this issue also, interviewees in the Melbourne Study were perceptive. Interviewees’ awareness of the benefits involved in testing ethics was always tempered by the compliance agenda: not so much the legitimacy of compliance, but its cost. Thus they were generally inclined to argue for affordability when any initiatives that might improve professional behaviour were discussed. These lawyers were self-confident and self-assured, convinced they were doing a good job for their clients, yet also well aware that their performance was partially determined by the degree of efficiency and fairness of the wider systems of justice. The notion that their own standards played a role in the utility of the wider system met with ready acceptance. Progressive suggestions for increased monitoring of lawyers met with careful, considered responses. Standards of competence and ethics in general practitioners were seen as under considerable pressure. Some urged immediate introduction of ethics-related initiatives but most wanted to see what their peers thought, after this research was publicised, before committing themselves further. There was a clear view that outcomes or results from major cases remain the main determinates of personal achievement and client satisfaction (and hence competence must remain at the top of the list of professional achievement), but there was also a strong sub-theme that ethical awareness and behaviour were absolutely crucial supporting elements. Older lawyers in particular were very reflective in relation to the notion of assessing ethical understanding, of the ability to remain ‘calm under pressure’ and to make complex ethical judgments, as worthy of encouragement and appropriate for assessment, in addition to competence.

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8.3 Evidence for the effect of CLE There are numerous CLE courses, including ethics training, available to the profession in many developed jurisdictions, but the only substantive requirement of these programs is to participate (in practice, to attend) for a very limited number of hours each year.7 Significantly and despite the unanimous views of legal educators,8 testing of learning does not occur in any US, UK or Australian CLE programs. Australian professional leaders are keen to claim that CLE improves competence,9 but can provide no evidence for the assertion and do not even try to make that claim for the effects of ethics training. If there were a statistical association between, for example, the introduction of compulsory CLE and falling levels of client complaints,10 that finding would be very important. However, an inability to provide evidence does not necessarily mean that improvements have not occurred as a result of an attendance requirement per se, since neither the positive nor the negative proposition appears to have been investigated.11 Although Sherr has researched the impact of accumulating legal experience on competence12 and concluded that experience plus training are required to maximise performance, he did not venture into the precise effect of competence testing per se, as an aid to improving competence. The lack of evidence either way about CLE is unsurprising. In Australia at least, the ethos of CLE currently lacks evidentiary credibility. The Australian profession considers that its current regime still provides the best compromise between no CPD at all and what is financially acceptable to members. This may be true so far as it goes but, as discussed above, training providers need not, as a rule,13 meet any particular quality standard. Lawyers need only self-assess whether they have in fact attended seminars of some worth 7 See, for example, Continuing Professional Development Rules 2005 (Vic), Rule 5.1 <www.liv.asn.au/ regulation/pdf/arf/cpdscheme.pdf> at 10 December 2006. In Australia, just 10 hours per annum is required for general legal practitioners. 8 For example, Cunningham et al reinforce the educational point that ‘learning’ without assessment is problematic. See Karen Barton, Clark D Cunningham, Gregory Todd Jones and Paul Maharg, ‘Valuing What Clients Think: Standardized Clients and the Assessment of Communicative Competence’ (2006) 13 Clinical Law Review 1. 9 See, for example, David Faram, ‘Mandatory CLE Raises Standards’, (2002) 76 LIJ 2. Faram was President of the Law Institute of Victoria when he made this claim. 10 By definition, any such association would be valuable for policy purposes only if other potential relationships, for example, between better economic conditions and falling complaint levels were also deemed to be statistically insignificant. 11 Alan Paterson has also commented that CLE is a tool for improving competence: ‘new entrants to the profession were required to attend courses in management and in ethics in the first three years after qualification. Though this was perhaps not the most obvious sector of the profession to address first, the tactic of selecting a soft target proved effective and mandatory continuing legal education is gradually being extended to the rest of the profession’, but has not yet researched the issue. See Alan Paterson, ‘Professionalism and the Legal Services Market’ (1996) 3 International Journal of the Legal Profession 149. 12 Avrom Sherr, ‘The Value of Experience in Legal Competence’ (2000) 7 International Journal of the Legal Profession 95. 13 Personal communication from Murray Paterson, Law Institute of Victoria, 2 November 2005. Queensland has a non-compulsory provider-accreditation process at present, but only the Victorian Bar and the Northern Territory have compulsory provider-accreditation processes. Additionally, the Victorian Bar only accredits external providers.


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to themselves and self-record what they have done. Auditing of records is provided for and does occur,14 but the audit process itself is of limited credibility because the audit schedule itself is not monitored by any outside standards assessment regime. The common adage in all education, not just legal education, is that if something must be understood and absorbed, make it assessable.15 But this truth has apparently not penetrated CPD or similar post-admission professionalism training regimes in the United States.16 As continuing legal education schemes currently stand, they represent only basic approaches and could achieve so much more.

8.4 Continuing opportunities for law societies In the Melbourne Study, interviewees’ opinions of other lawyers’ competence and ethics were not overly complimentary, though many interviewees recognised that individual practitioners were significant exceptions. While large-firm general practitioners were often considered especially competent (having achieved that competence with the benefit of their firm’s size and resources, informal specialisation and quality of client), their ethical stances were less heartily endorsed. In their view, the contemporary, well-publicised trend to pro bono commitment emanated from the larger firms for purposes of their own public image. These firms were perceived as loading their fees to finance the necessary time expenditure. In other words, large firm pro bono activities were considered a veneer, rather than as representing a genuine reduction in net income by reason of their voluntary activities. Large-firm practitioners were also generally regarded as elite only in respect of their competence. Interviewees were generally quick to point out that they and their colleagues, taking personal decisions, frequently performed unheralded pro bono activity by way of informal fee reductions and legal aid work. They were unsympathetic to suggestions that formalised pro bono work ought to be considered a mandatory part of legal professionalism, let alone be assessed as such. Pro bono for these lawyers was considered a personal not a professional decision and not strictly a legal ethics issue at all, if these distinctions may be taken. The notion that all practitioners would need to undergo periodic reassessment of their competence (that is, their knowledge and skills) and their awareness of ethical agendas – in other words, that their present obligation to attend CLE would become a serious process – would nevertheless not be especially welcome. 14 CPD in Victoria is controlled by the Continuing Professional Development Rules, op cit, which provide for record audits at Rule 8, but there has been no publication of the results of any such audits to date. 15 Also expressed in the truism ‘we value what we measure’ and ‘we measure what we value’. See Barton, et al, op cit, n 8. 16 Personal communication from Roy Stuckey, Chair of the Steering Committee, ‘Best Practices Project’, US Clinical Legal Education Association, 28 October 2005. In the US, as in Australia, attendance at such sessions is the only requirement.

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Yet testing professionalism is generally understood as a baseline indicator of a continuing ability to practise in other professions and more lawyers are coming to appreciate this. Lawyers after all, already have a conditional licence to practise contingent on several negative indices, such as the avoidance of misconduct. As discussed, experience alone is inadequate to ensure reliable levels of competence in general practitioners – training is also required. For new lawyers there is much at stake if the cycle of law firm culture, which presently seems to favour expertise over rather than alongside ethics, is to be interrupted. As Gordon observes: ‘The crucial period is apprenticeship: the novice’s first exposure to concrete settings, practical applications, real incentives, and senior lawyers who are relevant models for imitation.’17 In order to retain some power, law societies might well choose to go on genuine professional ethics offensives for new lawyers’ sakes, rather than continue to suffer criticism for failure to deal only with the fallout from notorious and repetitive complaints made against predominantly older lawyers. Some observers have suggested it could be more productive to bypass law societies as ethical primemovers and seek to encourage other players (individual law firms, government departments or legal aid providers) to move from an approach that merely reacts to complaint or scandal and to develop an alternative baseline legal ethics centred on community accountability. Parker, for one, considers such an ethic is more likely to promote the sort of long-term or generational transformation which will improve lawyers’ ethics.18 Parker’s insight is innovative but unlikely, at least in the legal profession, because it is far from clear as to who would champion this underlying transition to community accountability. In Australia, vigorous consumer organisations have been substantially neutered by the mainstreaming of consumer affairs inside government departments and industry organisations, who are themselves often in cruise control.19 Australian law reform commissions might occasionally become involved, but short-focused governments are usually content with reactive regulation when necessary and unlikely to see the electoral need to refer enquiries for research on this fundamental issue. Legal services commissioners and ombudsmen handle complaints, but do not have a brief to initiate fundamental policy reviews of practitioners’ ethics. Apart from government itself, the lack of an obvious instigator of change tends to leave national and local law societies current policy dominance in place by default. Some law societies appear to be in significantly stronger political positions than some of their UK counterparts,20 but all are vulnerable in the medium term. 17 Robert W Gordon, ‘Professionalisms Old and New: Good and Bad’, (2005) 8 Legal Ethics 30. 18 Christine Parker, The Open Corporation, Oxford, Oxford University Press (2002). 19 In the 1990s competition policy became government policy and (as Parker herself mentions – ibid, p 703) dominated ethics. Similarly, the activist passion for consumerism waned as governments made it one of their political agendas. Former consumer activists, never very numerous, were progressively recruited to industry self-regulatory schemes and to government agencies. Their criticisms were incorporated into corporate complaints-handling policies and, for a time, standards were raised. 20 Andrew Francis, ‘Legal Ethics, the Marketplace and the Fragmentation of Professionalism’, (2005) 12 International Journal of the Legal Profession 173, 190. Francis sees the Law Society of England and Wales as weakened in its ability to lead the profession as a result of the Clementi process.


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Those which become complacent are also vulnerable to the unexpected combination of scandal and a determined minister or departmental secretary.21 They can be too sanguine about the potential for government regulatory ‘interference’, especially as the timing of that interference is more or less unpredictable. Initiatives to improve or enhance professionalism might, however, be embraced by law societies because of the concern to retain what may be retained, of professional self-determination: in effect, to sustain as much of the independent integrity that lies behind the mediatory role that lawyers attempt to perform for society. Professional concern for self-regulation – now often reduced to the issue of complaint handling – has obscured the more defensible desire to sustain self-governing institutions and structures, although both conceptions of organisational autonomy will be threatened if the decline in ethics proceeds further.22 Parker (and this author) may prefer community oversight of major professions but: [I]t is often better to implement professional ideals through the institutions of professional community than through disciplinary enforcement and penalties because it is the professional community that can support individual professionals’ discretionary and contextual decisions to act on conscience or integrity.23

Law societies still have an opportunity to enhance members’ behaviour by adding to the requirement for competence, a focus on values and ethics. This is true despite professional leaders’ likely initial reluctance. Law societies could perceive that the mass of general practitioners will see such changes as designed to raise the long-term financial bar for their own practices, as a justification for increased fees or even as a step towards a formal separation in the discipline, with larger firms or specialists acquiring increasing status (perhaps even becoming the ‘new lawyers’, per se) and general practitioners declining in self-esteem and public recognition. Such outcomes may be underway to varying degree in any event, but if societies were to accept the assessment of ethics, there may be more gains and fewer adverse reactions than expected.24 The fact that these initiatives would do nothing more than recognise what a good practitioner already does should not be forgotten. A quandary now presents itself to law societies: do they lumber on with limited or nil assessment, not offending the mass of their ‘GP’ members (who might be uncertain about the implications of ongoing assessment), or do they secure at least a part of lawyers’ 21 The instigation of the UK Clementi Review at 26 June 2010, is a case in point. 22 The issue of self-regulation is a sub-set of the phenomenon of professionalism. See William Hurlburt, The Self Regulation of the Legal Profession in Canada and in England and Wales, the Law Society of Alberta and the Alberta Law Reform Institute, Calgary, 2000, p 201. 23 Parker, op cit, n 18, p 149, referring to William F May. 24 Assessment of general practitioners’ performance and the enhancement of accredited specialists’ status could be seen as linked initiatives. Set against the stakes involved for the law societies in doing little creative about public criticism, membership disillusion and periodic regulator encroachment, the opportunity to extend that energy to improving general practitioner performance, while contemporaneously enhancing specialist accreditation, may just be good sense.

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collective future by addressing the concerns of clients and regulators and developing new cultural capital,25 holding and extending lawyers’ ‘turf’? The overarching question is: are the economic reasons to encourage (preemptive) enhanced ethics enough for the profession to wish to act, short of further scandals of some sort, or is it in the nature of the history of the cultural ‘bargain’ that the profession is only reactive, never sufficiently proactive, when change in the way law is practised is concerned? Even if pre-emption is less common than reaction, the laying of groundwork for a model of change, in response to the next public challenge, will be of value.

8.5 The cost benefits of ethics assessment Parker has observed that professions can utilise occupational enhancement for their own ends rather than the public good, but affirmed that professionalism is not of itself undesirable.26 The task is to get the balance correct, so that professionalism is enhanced, rather than the profession per se. Cohen points out that law and economics scholars have started to see regulation of the key areas in legal ethics as important because issues such as money laundering, confidentiality and conflicts of interest were attracting the attention of institutions outside the profession.27 When ethics was more of an exercise in public encouragement to ‘do the right thing’, the scrutiny was less intense; now it is much clearer, according to Cohen, that rules governing lawyers ‘ . . . matter a great deal in today’s environment.’28 Cohen suggests that it is useful to identify where self-interested behaviour and ethical conduct diverge, because this is where both the economy and legal ethics suffer. In economic terms, ‘[w]e should expect to see more self-interested behaviour (and less ethical behaviour), as the cost of engaging in self-interested behaviour falls or the benefit from such behaviour increases.’29 Conversely, where particular regulatory initiatives have the effect of increasing the cost of self-interested behaviour (and improving the utility of ethical behaviour), self-interested behaviour may be expected to decline. In the Melbourne Study, a factor in the hesitation of many interviewees to engage with particular self-governing initiatives that might increase the cost of self-interested behaviour, stemmed from their concern about who would bear the 25 Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor, University of Chicago Press, Chicago, 1988, p 8. Abbott defines professions loosely as ‘exclusive occupational groups applying somewhat abstract knowledge to particular cases’. 26 See Christine Parker, (1995) 24 Contemporary Sociology – A Journal of Reviews 387 where she commented (in the context of a review of Organisations, Occupations and Markets – Professionalism Reborn: Theory, Prophecy and Policy, by Eliot Freidson), that ‘it is not clear how we are to avoid the tendency of occupations to use professional status for their own ends, while also nourishing professionalism as desirable in certain situations.’ 27 George M Cohen, ‘When Law and Economics Met Professional Responsibility’ (1998) 67 Fordham Law Review 273. A good example of law and economics applied to legal ethics is provided by Randall Graham Legal Ethics: Theories, Cases, and Professional Regulation, Edmond Montgomery Publications, Toronto, 2004. 28 ibid, p 274. 29 ibid, p 279.


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cost of implementation. Interviewees were unhappy that the profession would initially pay for any major initiatives and that such payment would be followed by clients’ collective contribution through higher legal fees. The fact that the cost would be passed on did not detract from interviewees’ concerns but emphasised them, because even they perceive many legal services to be too expensive relative to value. They are apprehensive of further client price resistance (even though clients as a group often bear the consequences of no ethical assessment) and potential competitors from other disciplines. They were not perturbed by increasing the overall cost of poor behaviour: their concerns were far more immediate and reflected, as much as anything, concerns for their clients’ access to justice. Yet cost transfer to clients is a given, regardless of the source of change. If the profession were to decide to trial something, it would initially pay through higher levies on practising certificates. Similarly, if an external regulator such as a Legal Services Board or a Solicitors Regulation Authority were to require the same trial, or just proceed to implement something from scratch, the profession would pay and then partially shift the burden to clientele.30 Any increase in the expected standards of legal practitioners will come at a cost. Indeed, the real question in assessing ethics is not one of absolute cost, but whether the initiative in reform might just be relatively less expensive if managed by the profession, as compared to regulators. It is more than predictable that ‘government’ regulatory initiatives inevitably become more expensive than those which are professionally sponsored from professional resources alone. If that perception is accurate, law societies might be prepared to trial initiatives to improve ethical behaviour if they considered that any likely alternative governmental agenda could be more expensive or, worse, less responsive to the need for the inevitable fine-tuning of procedures. Regulatory involvement in the affairs of lawyers is not unprecedented. As set out earlier,31 governments have unceremoniously despatched law societies from key regulatory roles when they considered circumstances required it. Australian migration lawyers are already captured for training purposes by education regimes external to the profession.32 There are attempts by governments to externally regulate tax lawyers to the extent that they become promoters of avoidance schemes.33 There are non-lawyer professionals involved in both these jurisdictions, yet neither area of expertise is considered by government to be sufficiently well-administered by the profession to allow training or regulatory 30 Progressively, the funds that were formerly available to support legal regulation from the interest on clients’ trust balances, will be reducing as the effects of electronic conveyancing and greater use of specific interest-earning deposits also reduce the balances held in practitioners’ general trust accounts over time. See Adrian Evans, ‘E-Transfers A Threat to Funding’, The Australian, Sydney, 25 November 2005, 24. 31 In Queensland, for example. See Reid Mortensen and Linda Haller, ‘Preface: Legal Profession Reform in Queensland’ (2004) 23(2) The University of Queensland Law Journal 280. 32 Regulation is controlled by a Federal agency – the Migration Agents Registration Authority. See <www. themara.com.au/Online/default.asp> at 7 December 2006. 33 See for example, Chris Evans, ‘Avoiding the Issue: Countering the Termites in the Australian Tax System’, in the Australian Review of Public Affairs, 12 September 2005, (reviewing John Braithwaite Markets in Vice, Markets in Virtue, Federation Press, Sydney, 2005).

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exemptions for lawyers. Abel suggests that the threat, or even the possibility of threat of external pressure for reform, is needed before a law society reacts and does something about poor lawyer performance.34 Based on past experience, it will be a matter of time only before ‘circumstances’ emerge that will call for a far more comprehensive effort to improve legal behaviours than the piecemeal, jurisdictional approach taken to date.

8.6 Overall recommendations In the present international climate of marginal law society attention to improving post-admission behaviours, feasible recommendations for improvements to the licensing regime are paramount if change is to occur and legal ethics improved, especially among general practitioners. In the assessment of lawyers’ professional ethics, the ability to scrutinise and monitor values and attitudes through various mechanisms is a function of immediate cost and likely longterm cost benefits. The following specific recommendations are made with those cost benefits in mind. Although the altruistic motivation is strong in many practitioners and does ● translate into pro bono activity, to recommend its assessment would be counterproductive because the essence of altruism is its voluntary nature. Among law students the argument for some mandatory pro bono activity seems to be significant,35 but sufficient numbers of practitioners may well comply with pro bono form while undermining its substance, making a practical mockery of the very notion. And there is a real and continuing debate about whether lawyers’ pro bono activity has anything substantial to do with their legal ethics. Accordingly, there is no recommendation for assessment of pro bono contributions, though law societies may well wish to continue their existing encouragement by assessing attitudes to pro bono. In many jurisdictions the obvious manner in which to improve legal ethics, ● with regard for cost, is to expand and strengthen existing infrastructures of continuing legal education, or continuing professional development. Ample evidence exists that current approaches are inadequate. Accreditation of CLE providers and assessment of learning would come at a price, but the cost would be less than that incurred if a completely new infrastructure were created. Further, the profession understands the purpose and importance of CLE, even if it also has only conditional respect for its current incarnation. In a real sense, the political cost of introducing post-admission assessment is already half accomplished. 34 Richard Abel, ‘Why Does the ABA Promulgate Ethical Rules?’ (1981) 59 Texas Law Review 639. 35 Adrian Evans, ‘Recognising the Conditional Nature of Pro Bono Motivation: Avoiding “Aspirational Compulsion” and Developing an Appropriate Pro Bono Ethic in New Lawyers’ (2004) 78(10) LIJ 38–41.

ENTRENCHING ETHICS ASSESSMENT ●

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The establishment cost of CLE/CPD provider accreditation and assessment of learning is still a hurdle, but again, if such accreditation is administered by the profession for its members (just as is specialist accreditation in some jurisdictions) it could be done on a cost-recovery basis. Since provider accreditation and learning assessment are linked and the profession will wish to assess technical competence before anything else, assessment of both competence and the ethical parameters specified here could proceed together, in the context of provider accreditation. The profession rather than a regulator would control CLE and some cost efficiencies could be expected from the more immediate communication between members and providers. Continuing psychological and neurological research insights and innovation in medical practitioners’ ethics have strengthened the claims of psychological approaches to assessing ethical awareness and fitness to practice. It is now rational for law societies and not just regulators to support: – testing of psychological type as part of the wider effort to encourage and support lawyers’ ethics, – introduction of limited psychological testing of legal practitioners’ honesty and integrity through tests designed to probe consciousness of both active and passive lying, and – assessment of reputation for integrity through the now ubiquitous ‘360degree’ process, for its potential to assess that quality in all lawyers. The need to make choices between valid but competing ethical positions is such that ethics assessment is not concerned just with conduct rules or with preferences for any one ethical methodology or principle over another. Accordingly, testing knowledge of conduct rules should occur in the context of assessment of lawyers’: – values awareness, – knowledge of psychological and ethical types, – preference for particular types, – sense of what honesty and integrity means to them, and – their virtuous capacity for complex moral judgment. Some of these capacities might be thought too esoteric, too ‘soft’ or even sinister, but many practitioners already have an implicit understanding of these concepts and achieve high ethical standards. Assessing ethical awareness in these contexts ought to apply to all lawyers after a reasonable period of experience on practice. Assessment of such ethics awareness is best undertaken through a peer interview process which delivers rated results, supplemented by appropriate quantitative instruments. Assessment of legal ethical type is one example of such a quantitative instrument. Since it is important, especially in the ethical context, to initially encourage better performance rather than peremptorily penalise its absence, an initial assessment of ethical awareness should occur between three and

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five years after admission to practice36 and any initial ‘failure’ (however determined) ought not to lead to a referral to the regulator. Reassessment should be required although clearly, a second failure must lead to such a referral if learning assessment is to mean anything to practising lawyers. Periodic ethics education and reassessment is also necessary to maintain lawyers’ sense of ethical currency, just as most accept it is appropriate for continuing technical competence. Set against the stakes for the profession and society, both of which are at risk from further significant ethical failures, introduction of ethics assessment and of its eventual consequences is little more than a minimum response to continuing misconduct. Assuming adequate ongoing virtue ethics education and training through CLE processes, an ‘ethics confirmation’ process ought to occur at five years after admission, at which any disciplinary history should be assessed for purposes of continuing practising certificate renewal. There ought to be no threshold offence that automatically disqualifies a practitioner from renewal, but rather a ‘show-cause’ process which involves an interview of the practitioner to ascertain if the history is at all relevant to continuing licensing. Such a process would be low cost because the relative number of practitioners affected would not be large. The use of referees for re-licensing or accreditation purposes, while affordable, is insufficiently independent of the subject lawyer and ought not to be adopted or continued. As clients’ opinions on ethical issues are generally relevant and reliable only in relation to lawyers’ communication skills and standards of written reporting, their opinions on other behavioural issues among lawyers are unlikely to be useful. However, there is a case for trialling an ethics feedback process among those groups of niche clients who are already assessing competing law firms and practitioners on a daily basis. As is evident from the UK research and the Melbourne Study, the occasional, unexpected, random audit of a small selection of lawyers’ client files is an effective secondary indicator of many aspects of legal ethics, including their awareness of a virtuous balance in their decision making. Such audits ought to be introduced on an ongoing basis among general practitioners, again, in order to warn if necessary, rather than exclude practitioners from practice. The small scale of individual audits is necessary to manage the cost of obtaining client consent. Such audits often occur already when suspicions exist concerning possible defalcations and accordingly law societies frequently have established expertise in their operation. Vulnerable sole practitioners are an Achilles heel of professionalism, not just in their higher exposure to stealing clients’ funds, but also in their

36 It is to be expected that the current approach to CPD sessions, for which a ‘quota’ of annual attendance points must be accumulated and which commences in the first year after admission, would continue.


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limited access to second opinion on the full range of substantive law and ethical dilemmas. Existing suburban and regional law association structures in some jurisdictions are designed in part to address this isolation, but their typical structures are not small group-based. The model of voluntary small (6–8 member) study groups, already utilised by accredited specialists to pursue technical issues of their speciality, is capable of adaptation by geographical area and loose connection to the suburban/regional associations for all lawyers. Such groups ought to be encouraged by law societies through offers of training for small-group facilitators, to be attached to the suburb or region as appropriate. Many of these recommendations are derived from the empirical studies described in this book. Some of them may occur by default in any event – through quality assurance processes eventually required by corporate regulators or professional indemnity insurance risk analysis – but these will be imposed from outside and, because they will be more readily seen as ‘regulation’, will not necessarily have the aspirational support of members. The law society that can encourage a climate where each of its member firms can see the advantage in these initiatives will be providing those firms with long-term operational advantages over other providers of legal services and, in due course, a credible counter to consumer and government criticism. The individual firm that takes these recommendations forward and publishes on its own website, a genuine ethics profile based on assessed ethics indicators for its own lawyers, will achieve all of this and a competitive marketing advantage as well. Ultimately however, both the community and the economy will be the major beneficiaries. As things now stand, social confidence in lawyers’ ethics is profoundly in doubt despite the constant efforts of many dedicated and ethical practitioners. Assessing lawyers’ ethics will strengthen not just the confidence of the client community and the integrity of national systems of justice, but also the vocations of numerous committed lawyers around the world.

Appendix A Research methods The Melbourne Study

A variety of approaches to gathering information was possible. Large-scale quantitative analyses, whether of the whole population of lawyers in Melbourne, in Victoria or even across Australia, or randomly constructed on a very large sample of those populations, might be ideal, but the scale and practicality of empirical enquiries impose limitations on all research designs. One way to understand what lawyers think about improving legal ethics would have been to invite every current practitioner to answer a detailed questionnaire, developed at length after several pilot studies and augmented by discrete focus groups. Extensive quantitative analysis of all results might then be matched to a text analysis of the focus groups. Alternatively, a random sample of a chosen lawyer population would be acceptable, but focus groups would still be a desirable quality control. A quantitative, large-scale survey of all Melbourne lawyers (or a very large sample) was not undertaken for several reasons. Firstly, an entire population of one group of lawyers would still only be representative of one culture, not all jurisdictional cultures. The results of the survey and interviews do not attempt to define lawyers’ opinions on anything more than a parochial level, so there is no advantage in surveying a whole population (even if that were feasible) as compared to an appropriate sample. Secondly, it was considered that the detailed and exhaustively analysed opinions of a randomly chosen group of 30 specialists were highly likely to reflect the range and sophistication of opinions held by larger groups practising in Melbourne. If the interviewees were not highly experienced and successful in their roles, doubt about their representative quality might be raised; but these characteristics militate against this concern. Were it not for a preliminary survey of professional leaders (see A.1 following), who were canvassed for their overview of the significant issues, a larger sample might have been necessary, but the knowledge gained from that preliminary survey, matched to the intensive qualitative approach to text analysis, is sufficient to support the decision to fix on a main sample of 30. Thirdly (and unsurprisingly), the cost of a full survey of all relevant practitioners, together with focused discussions, would have been prohibitive. Similarly, although the cost of a random sample of, say, 200 subjects (plus focused discussion) would have been lower than a full population survey, it would have still been significantly above the resources available for this investigation and would also have faced considerable difficulties in subject identification, as discussed below. 240

APPENDIX A

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Instead, an essentially qualitative investigation of the elements of legal professionalism was prepared, based on a multi-stage research design. This was intended to balance the cost of the process against reasonable data availability. Reference was made in Chapter 4 to two of Sherr et al’s research objectives – to develop, if possible, transaction (or process) indicators of client satisfaction that were also affordable and acceptable to the profession.1 Similarly, the design adopted in this study tried to build the factors of professional acceptance and affordability into the detailed discussions with interviewees. Sherr’s reference to ‘process rather than outcomes’ involved the more general ‘evaluative’ use of terminology, not applicable to the research project chosen, since the recording of transaction criteria was in fact, an outcome as distinct from a process. Nevertheless, the concern for ‘process rather than outcomes’; that is, in the context of this research into legal ethics, the concern to observe ethical research methods along the way to achieving research outcomes, is evident in the overall design. Additionally, in this design, considerable attempts were made in the conduct of interviews to seek interviewees’ opinions without initial reference to the possibility of future regulator interest in the proposals under discussion. While discussion with interviewees often turned to likely regulator interest, this occurred only after exploration of their own opinions as to necessary ethical issues and the acceptability to peers of various proposals for improvement. In the sections which follow, the reasons for choosing a pilot group and an explanation of why accredited specialists were chosen as main interview subjects are more fully set out, followed by a description of the detailed research methodology.

A.1 Who was surveyed and how? The research hypothesis was that there may be specific, identifiable ethical issues; that is, practical and desirable normative characteristics of the lawyers’ role that could be crucial in improving behaviour if they are identified and assessed in some way, at an appropriate point after admission to practice. The hypothesis also surmised that, consequent upon the insights from the Australian Lawyers’ Values Study by Evans and Palermo,2 identification of the relevant issues and of the likely approaches to their assessment was not likely to be productive at the actual point of lawyers’ admission to practice. Essentially, the Australian Lawyers’ Values Study showed that the impact on ethical issues of the academic phase of legal education appears too limited to permit useful assessment of those issues at the time of admission. It seemed necessary to wait for some time after admission before it was reasonable to ask lawyers to reflect on their understanding of ethical issues. 1 See Avrom Sherr, Richard Moorhead and Alan Paterson, ‘Assessing the Quality of Legal Work: Measuring Process’, (1994) 1 International Journal of the Legal Profession 135, 148, referring to Jeremy Cooper, ‘What is Legal Competence?’ (1991) 49 Modern Law Review 323; also Sherr, Moorhead and Paterson, Lawyers – The Quality Agenda: Vol 1: Assessing and Delivering Competence and Quality in Legal Aid – The Report of the Birmingham Franchising Pilot, Legal Aid Board, HMSO, London, 1994. 2 Adrian Evans and Josephine Palermo, ‘Law Students’ Perceptions of Their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2003) 5 Legal Ethics 1&2, 103–29. Adrian Evans and Josephine Palermo, ‘Zero Impact: Are Law Students’ Values Affected by Law School?’ (2005) 8(2) Legal Ethics 240–64. See Section 3 ‘Alienation of Lawyers’ in Josephine Palermo and Adrian Evans, ‘Almost There: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill towards Lawyers’ Professionalism’ (2008) 17 Griffith LR 252.

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A limited scoping study of eight individuals was used to consider the territory for the following larger study. The methodology of this research was informed by Matthew Miles and Michael Huberman in Quality Data Analysis: An Expanded Sourcebook.3 This small number was considered adequate for this level of complexity. The second and larger formal study, of 30 practitioners, was at the upper end of the recommended size group for qualitative investigation, but the desirability of choosing these individuals randomly (to limit the possibility that some interviewees would be already known to the author) argued for the larger numbers. A semi-structured interview design; that is, one which follows a fairly designated course, is useful when the overall subject matter of the research is itself extremely diffuse. The combination of both set and semi-structured questions, of small groups of interviewees with a larger group and of minimal quantitative analysis with more extensive qualitative analysis, was intended to limit the extremes that can come from reliance on just one approach or a feet-first, entirely open, extended set of interviews, undertaken in the interests of ‘inductive purity.’4 The resulting multi-stage research design was intended to refine as far as possible what agendas are covered by legal ethics in Melbourne and then to examine experienced practitioners’ own views as to crucial elements of that understanding, their usefulness in assessing lawyers’ behaviour and whether particular suggestions for improvement and assessment are likely to work. Melbourne, Victoria is not, of course, the centre of thought on legal ethics, but the contested nature of this term means that it is amenable to investigation everywhere, so long as the geographical and cultural restrictions are acknowledged.

A.2 Why clients’ views were not canvassed Without doubt, the client of the justice system is also the citizen to whom all institutions and all professions are ultimately accountable. The suggestion therefore that clients’ views should not, on the whole, be considered in this investigation seems both cavalier and paternalistic. Nevertheless, clients’ views about these issues were not sought for several reasons. Although it is desirable, even essential, to obtain clients’ views as to certain aspects of their lawyers’ professionalism, prior research (outlined in Chapter 4) indicates that so-called retail clients’ views are likely to be useful only in relation to certain issues – communication skills and general accountability. There are also pragmatic considerations in approaching clients. Exactly who is a client for present purposes would have posed considerable difficulties. Thus, would either a current client (who would have privacy concerns) or a former client (who might not remember too much about their lawyers’ qualities) be suited? And a client of whom? Which lawyers would agree to share their client list, not just to consider communication issues, but for an uncertain and extended discussion process, without a great deal of persuasion and Law Institute (of Victoria) encouragement? How would a client who would provide truly informed consent be located? And who would mediate the consent process? The considerable cost and necessary time expenditure 3 Matthew Miles and Michael Huberman, Quality Data Analysis: An Expanded Sourcebook, Sage Publications, Thousand Oaks, California (2nd ed, 1994). 4 ibid, p 23.

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of an investigation of clients’ views, in order to acquire limited information, was prohibitive in this instance, though it is an acknowledged limitation of the study. There would also have been problems with the logistics of gaining client opinion. Essentially, clients could only be contacted through their lawyers unless expensive advertisements were placed in various media. Clients who make contact via these media are likely to have particular axes to grind about their past or current lawyers and may have introduced bias into the sampling process. Clients contacted through their lawyers would be potentially suitable, but only after privacy issues were negotiated, adding considerably to delay. Client surveying also involves the additional risk that some of those interviewed will not necessarily want better all-round ethics in their lawyers, but rather more ethical behaviour only insofar as their lawyer–client relationship is concerned and less ethical behaviour, if necessary, in dealings with the other side in litigation or in relation to commercial or family law negotiations. Some clients’ likely ambivalence about the ranges of ethical behaviour is, at one level, no more than feedback about whether better ethics are necessary for lawyers in an adversarially-focused legal system and is therefore worth knowing about, but their ambivalence might not be reliably observable. Equally, is any of this knowledge important for present purposes? Ultimately, while democratic communities are said to get the governments they deserve and some clients might also get the lawyers they deserve, the likelihood that some clients are content with poor ethical behaviour in some circumstances is not germane to the demonstrated need for better overall legal ethics.

A.3 Obtaining lawyers’ views: The first approach A purely quantitative design, producing numerical statistics of all lawyers’ views, might have been possible, but that option contained many practical obstacles, all revolving around cost. A quantitative sample of practitioners could have covered a large range of lawyers and para-legals: articled clerks, practical legal training students, general practitioners, accredited specialists, junior and senior attorneys, in-house corporate lawyers, patent attorneys, migration lawyers and even conveyancers. Further, it would have been theoretically possible to choose every one of these groups and segment interviewees into ‘cells’ of suburban, regional, rural, middle-ranked, first- or second-tier large firms, and then randomly sample within those cells, to avoid chance preponderance of one group dominating the opinions derived. The difficulty with this quantitative strategy would have been the considerable expense of identification of all members of each of those cells. Surprisingly, there are no convenient or complete lists in the public domain of all notional groups of lawyers in Australia. Perhaps the most useful lists are those maintained by law societies,5 but even these are limited to firm name, locality and accredited specialisation, where applicable. Choosing from each group on a random basis and then dealing with refusals to participate, the considerable travel and accommodation costs throughout 5 For example, see <www.liv.asn.au/directory/specialists> at 19 April 2010.

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Victoria and the time which it would have taken to achieve this detailed profile of Victorian interviewees, made that approach impractical. In summary, to be sufficiently thorough about interviewee selection for quantitative comparisons, a rigorous, random sample cellular selection regime would have to be developed and then accessed. Expense and time did not allow that methodology for this study.

A.4 Obtaining lawyers’ views: A second approach Instead, a second multi-staged approach was taken. In the first stage, a very small, in effect pilot group of eight leading lawyers (professional leaders) were approached who could be asked to guide the parameters of a wider investigation. This first group were chosen for their likely ability to identify key elements of legal professionalism in Melbourne. In the second stage, a larger and readily identifiable group of practitioners was identified and their opinions studied extensively on a qualitative basis. This larger group would also need to be generally respected for their professionalism by their peers and centrally located within professional strata, in order for their opinions to have some cogency, or at least as much cogency as any other group, with the mass of lawyers. General practitioners are individually the most numerous but are spread throughout different practice types, diverse geographical locations, small and large firms; in other words, with no identifiable commonality. Sole practitioners are readily identifiable but do not now stand centrally enough in the profession (in terms of income, perceived expertise or unfortunately for some, even self-esteem) to carry persuasive power with almost all lawyers in larger practices and often have little time to devote to interviews, in any case. Similarly, almost all the other practice niches lack enough representative characteristics to be of sufficient use in this study. A qualitative study of a suitable lawyer group was accordingly preferred because qualitative investigations are cost and (marginally) time-effective. Also, they are manageable with appropriate analytical software and, more particularly, the qualitative method suits the subject matter of ethics. The complex, shifting nature of ethical opinion and the volume of those opinions concerning its constituents entail both range and subtlety in initial descriptions; in interviewee response to alternative conceptions; and, in numerous intersecting findings. Just as the key to ethics education appears to be to determine and discuss what law students and lawyers really care about,6 the Melbourne Study sought to discern what interviewees really cared about in terms of ethics and to learn what they considered really defined them as lawyers. It also assessed how close those ‘cares’ were to the values regarded by their peers in the profession as the ‘central cares’ of legal ethics. Accredited specialists (that is, lawyers permitted to describe themselves in that manner in Victoria), were chosen as qualitative subjects in the larger part of the Melbourne Study for several reasons. Although not necessarily more ethical than other lawyers, they were, by definition, easily identifiable, accessible and experienced practitioners whose exposure to the stressors of legal practice placed them well beyond 6 See the Australian Lawyers’ Values Study (2001–03) and accompanying text. It was funded under an Australian Research Council Large Grant to the author as Chief Investigator.

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the point of admission. Accredited specialists must be in practice for at least five years before they can seek accreditation. Secondly, they were, by and large, moderately successful in financial terms, which meant that they might be less concerned for their income level than some less-successful general practitioners. Even though many accredited specialists were also sole practitioners, it was considered more likely that they would be able to consider topics such as pro bono commitment, integrity testing and regulatory pressure without peremptory responses. Thirdly, they were likely to be more reflective than other practitioners, by reason of their time in legal workplaces; their decision to seek accreditation; and, their likely long-term commitment to professional practice. The ease with which they could be identified as a group and their likely willingness to reflect (borne out generally in their subsequent ready agreement to be interviewed), were perhaps the most important factors in choosing them as interviewees. Since the sample was randomly selected – that is, a list of random numbers was applied to all accredited specialists in the Melbourne regional area – it was likely to be representative of all accredited specialist opinion across Melbourne. The accredited specialists who participated represented both genders fairly equally. They had been practising for between 13 and 37 years and were currently in specialisations which covered family law, criminal law, business law, commercial litigation, personal injuries, town planning, property law and workplace relations. Apart from the usual scheduling problems, no significant difficulties were encountered in surveying these specialists. Of those initially approached, only two declined to participate and their replacements, selected with the same list of random numbers used for the others, were both quite willing to assist this study.

A.5 Quantity and quality Much of the above complexity is best represented in qualitative text and visual displays rather than statistical relationships; although the latter can of course give more precision to findings when sufficiently extensive data is available and tests exist to represent that information. While minimal quantitative techniques were used in this study, most of the analysis was based on qualitative text analysis. Miles and Huberman, state: ‘Displays . . . include many types of matrices, graphs, charts, and networks.’ The text and visual displays ‘ . . . are not separate from the analysis [but] is a part of the analysis. Designing a display [is an] analytic activity.’7 Qualitative methods are more than occasionally derided as insufficiently directive of desirable change and it might be thought that, in a cultural quicksand such as ethics, the precision of quantitative results would be preferable. However, the interlocking concepts of ethics are unlikely to be any more permeable to quantitative than to qualitative methods and the consensus of opinion in this context is that the ‘quantitative-qualitative argument is essentially unproductive.’8 Both techniques inform each other. Achieving an acceptable balance between techniques, methods and objectives where there are almost too many parameters to achieve an ‘optimal’ 7 Miles and Huberman, op cit, at p 11. 8 ibid, p 41.

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objective or ‘best’ solution, may depend on accepting a compromise or solution; that is, the best approach that is possible in the circumstances. The research approach of first assimilating the possible meanings, secondly refining them, thirdly ranking them quantitatively and finally qualitatively testing the limits of those rankings by asking questions, seemed to fit this balance.

A.6 Detailed research methodology The detailed methodology used in the Melbourne Study was as follows: A.6.1 Lawyers’, scholars’ and commentators’ views as to possible ethical issues for lawyers have a consensual core revolving around values of integrity, autonomy, competency and altruism. Nevertheless, those core concepts still overlapped and were insufficiently concise for purposes of use in a semi-structured questionnaire. Interviewees who might be asked whether ‘ethics’ or ‘attitudes’ (or even ‘competence’) were important could well say ‘yes’ for socialisation reasons without anyone being much the wiser. This list therefore required restatement as a series of propositions about the essential issues in order that they would be readily intelligible to a research cohort in the Australian context. Having regard to all these considerations and to the whole of the literature, the following heuristic descriptions of legal ethics emerged: 1 Knowledge/Competence/Excellence 2 Altruism/Ethical/Moral Conduct 3 A Desire to Do the Best for One’s Client 4 Honesty/Integrity/Fairness 5 Autonomy/Independence of the Lawyer 6 Authority/Control of the Lawyer 7 A Sense of Duty/Dedication 8 Civility/Good Communication Skills 9 A Sense of Social Responsibility and Altruism. A.6.2 This set of propositions together with two others: ‘A Business Orientation’ and ‘Lateral Thinking’, was shown to eight professional leaders, mostly Victorians. These comprised: one serving and two former judges; a regulator; an elected office bearer of the Law Council of Australia; a chief executive officer of a law society; a senior counsel with expertise in professional regulation; and a director of a law foundation. Professional leaders were chosen for their role and reputation in Melbourne. These leaders had much wider functions than direct client representation and were chosen, in part, for their ability to understand and represent the interests of the wider community as well as the legal profession. The group were asked to indicate which of the issues listed above were, in their opinion, important in Victoria. They affirmed all nine of the above propositions, deleting only the concepts of lateral thinking and business orientation. Note that although this group was not asked to rank ethical issues in their order of perceived importance, they all volunteered the importance of

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Items 2 (Altruism/ Ethical/Moral Conduct) and 4 (Honesty/Integrity/Fairness). The formal ranking task was held over for the more detailed investigations of accredited specialists’ views, discussed below. A.6.3 A randomly picked group of 30 Victorian accredited specialists were asked for their own opinions about: The proper ranking of the designated ethical issues on a numbered scale of most ● important to least important. Note the question was not ‘is there a consensus as to a definition based on these core elements?’ because that question was most unlikely to receive a precise answer. This ranking was then used to derive an Excel frequency distribution. The behaviour of ‘other practitioners’ (not the interviewee per se) in relation ● to legal ethics today. The reference to ‘other practitioners’ in the phrasing of this question was intended not only to gather information about general practitioners, but also to manage the possibility that some respondents might agree with suggested reforms, regardless of their true opinions, because they want to appear to be ‘holy’. It was possible that such interviewees would respond candidly if some of the queries were pitched at the level of what they imagined ‘their peers might think about X?’ Their own views as to whether particular initiatives would assist in the improve● ment of ethics in all practitioners. A.6.4 Based on the literature and prior research as discussed in earlier chapters, a number of specific proposals about ethics assessment were put to interviewees for discussion, as follows: A psychological test to assess lawyers’ honesty and integrity. This proposal ● referred, for the sake of the argument, to the intrusive possibility of testing for honesty/integrity, but contemplated the tests already used in other sectors, particularly in management and clerical contexts. It was important to determine if lawyers were still sceptical about psychological tests as a method of limiting misconduct, the theft of clients’ funds and so on. The identification of integrity was obviously important, even if most might not wish to learn about it by psychological methods. At present, integrity (or the reputation for same) is increasingly being assessed for corporations in quantitative terms. However, it was proposed that the profession and clients could approach assessment on an everyday interview basis by qualitative perception, that is by asking ‘what is X’s reputation?’ The linkage of all lawyers’ particular disciplinary history to their continuing ● right to practice law; together with a sub-set of propositions specifically concerned with disclosure by a candidate for specialist accreditation of a ‘NIL’ disciplinary record for the previous five years, at least in respect of relevant intentional legislative offences and/or regulatory breaches. The recognition that lawyers’ past transgressions are likely to have some connection to

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future behaviour is hardly novel, but community and client awareness of their lawyers’ past offences is almost non-existent, even in those US jurisdictions where significant information is posted on the internet. Accordingly, the research design includes attention to both lawyers’ ethical ‘history’ and their current ‘intentions’ (that is, ethics testing). Further discussions canvassed (1) the threshold level of any prior offences or breaches that interviewees considered appropriate to disbar a lawyer from relicensing or accreditation, and (2) whether the only requirement should be for mandatory disclosure of all prior offences or breaches, for consideration by an advisory committee of some description. The value of a positive rating by clients of their lawyers’ communication skills and accountability (not as to case-outcome issues); providing there is client consent and such clients are chosen at random from a list of all clients, as supplied by a practitioner [could apply after a certain period in practice]. Assessment of a lawyers’ standards of maintenance of a small number of their client files, with client consent, chosen at random from the list of all clients, as supplied by the practitioner. Assessment of awareness of lawyers’ values and of ethical principles or methods, coupled with a capacity for complex ethical judgment, provided that the immediate consequence of ‘failure’ in these indicators would be feedback and a requirement to participate in an appropriate education and training process, until a ‘pass’ is achieved at a later date [could apply after a certain period in practice]. Note that the Australian Lawyers’ Values Study has demonstrated that values awareness is feasible.9 However, values assessment was not proposed to interviewees as a way of improving legal ethics because such prescription is impracticable, oppressive, Orwellian in nature and did not appear to have any chance of being seen as a serious suggestion. Note also that the research undertaken by Milgram and applied to the legal profession by Luban makes it clear that the ability to exercise difficult ethical judgment and to make consequential decisions under pressure, are likely to be crucial factors in the exercise of a complete legal ethical position. The general effectiveness of current CLE programs within the profession and as a means to improve ethical behaviour. Accreditation of CLE providers, the assessment of lawyers’ learning in such environments and the usefulness of compulsory CLE for the above purposes. Arranging for ethics retesting of practitioners along the above lines, after a certain period. Lawyer retesting, much like the perennial issue of periodic drivers’ licenses, provokes cries of over regulation in some and amazement that it is avoided, in others. Corneille10 thinks lawyers’ retesting worthy of consideration, though in the context of issuing an initial practising certificate which is conditional on further assessment, rather than withdrawing a licence because of perceived decline in physical or cognitive ability.

9 See Adrian Evans, ‘Teach Values, Not Just Rules’, Lawyers Weekly, Sydney, 28 October 2005, 15. 10 Margaret Corneille, ‘Bar Admissions: New Opportunities to Enhance Professionalism’, (2001) 52 South Carolina Law Review 609.

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A.6.5 A range of structured and semi-structured questions was then put to interviewees designed to bring out the essence of a view about ethics issues and the proposed assessments. These led by word association to other interviewee insights. The precise semi-structured questions put to particular interviewees depended in part on the direction in which the interview was taken by each interviewee. A.6.6 The recorded interviews of accredited specialists’ opinions were transcribed, dissected and then analysed using the qualitative research software package NVivo. The analytical research process relied upon successive reclassification of conceptual themes within each interview into their component sub-themes, in order to identify those components and enable collation and comparison with similar and divergent concepts in every other interview. Classification and reclassification in this manner is a gestalt process which gradually allows an overall perspective of each interview to emerge, providing an intuitive shape to the usually numerous sub-themes recorded for each interviewee. Essentially, the NVivo software promotes an iterative coding process (almost identical conceptually to the older manual methods discussed in Miles and Huberman11 that significantly aids the recall and classification of similar information given earlier in the same transcribed interview, or previously in another interview. The classification and reclassification by gestalt (intuition) is progressive rather than sudden and parallels the progress in the researcher’s increasing familiarity with each transcription. 11 Miles and Huberman, op cit, Chapter 4: Early Steps in Analysis.

Appendix B Awareness of ethical type Detailed methodology for scale development

B.1 Primary composition of statements indicating an ethical type To produce the prototype scale that would satisfy the process for the development of scale items described by Netemeyer, Bearden and Sharma,1 a number of possible statements (‘items’) were composed. Founded in definitions from the pertinent literature and based on the author’s prior experiences in legal practice, a large number of statements were initially drawn up. Each statement was intended to be representative of a lawyer who preferred a particular ethical type, utilising the typology explored in Chapter 3. For example: a lawyer who prefers Zealous Advocacy as their approach to legal ethics might ● respond affirmatively to a statement which asserts ‘Clients are my number 1 priority’, a lawyer who preferred Responsible Lawyering might respond strongly to ‘I feel ● the need to be loyal to the fair process of law before individual loyalty to my clients’, a Moral Activist might identify with ‘I want to work on legal issues at a systemic ● level, not just in relation to individual clients’ problems’, and finally a Relationship of Care ethicist would likely go along with the statement ‘It is ● more important for me to strengthen human relationships than it is to get too wound up about “unsafe precedents” or “doubtful legal principles”’. Primary composition of between 20 and 40 diverse statements such as those above, each intended to get at the key quality represented by an ethical type, was achieved for each type. This list of about 120 statements was then pruned by a consultant statistician (Associate Professor Helen Forgasz, Associate Dean (Clayton), Faculty of Education, Monash University) to approximately 80 statements, removing those with obvious ambiguity, or those with double-barrelled or double-negative phrasing, and then handed in a single ‘jumbled up’ list to a group of eight carefully chosen assessors, who were practising lawyers and legal ethicists. The judges or assessors were Ross Hyams, solicitor, Senior Lecturer and Monash Faculty of Law convenor of Legal Practice Programs; Greg Connellan, Magistrate; Garry Moore, commercial 1 RG Netemeyer, WO Bearden and S Sharma (2003). Scaling Procedures. Issues and Applications. Sage, Thousand Oaks, CA.

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and administrative law barrister; Professor Sue Campbell, legal educator and clinical supervisor; Dr Linda Haller, legal ethicist and specialist in legal profession discipline; Rachel Chrapot, legal educator and barrister; Gary Sullivan, criminal and community lawyer and principal solicitor, West Heidelberg Legal Service; and Associate Professor Mary Anne Noone, legal educator and Victoria Legal Aid Board member. The aim of this procedure was to establish content validity – ‘items should appear consistent with the theoretical domains of the construct in all respects’2 – and face validity, which is particularly pertinent in practical settings; that is, ‘what respondents from relevant populations infer with respect to what is being measured’.3

B.2 Secondary assessment of statements These eight assessors individually assessed all statements for subtle ambiguity arising in the legal context, or for too many internal concepts, and made crucial secondary decisions about whether the remaining statements accurately reflected particular ethical types. This secondary judging role was particularly important because it allowed comparative criticism of primary composition decisions, made without any knowledge of which ethical type each item had been hypothesised during the initial composition stage. Assessors created four notional ‘piles’ (one for each type) and each assessor was asked to assign a statement to one pile and one pile only. There are various processes available for deciding which items are eliminated from an initial pool. The assessors were highly expert as well as established practitioners. Their views were likely to be nuanced and it was decided a priori that items would be retained if three or more assessors identified an item as fitting the hypothesised ethical lawyer type. A statement was considered completely acceptable to predict a preference for one ethical type only if it was considered by all assessors to be wholly representative of that type and orthogonal to (independent of) every other type; that is, containing no references to or implications of another type. However, comparatively few statements were considered by all assessors to refer to only one ethical type. Most statements were judged to contain a degree of divergence; that is, they had some potential to reflect more than one type preference. A statement that was considered by all but one assessor to be representative of a particular type was identified as just ‘1-off’ (that is, of very high cogency as a predictor); a statement which all but two judges considered to be representative was identified as ‘2-off’, etc. A statement that was ‘3-off’ (where three judges felt that a statement referred to more than one ethical type) was considered to be the cut-off point beyond which a statement was insufficiently predictive to go forward to the tertiary testing stage, using the specialist lawyers. For example, the statement ‘I will make personal representations on access to justice issues to government and others during my future career’ was rejected in the secondary vetting process because it insufficiently targeted a particular ethical type and could be said to apply to both Moral Activists and Zealous Advocates. Approximately another 40 statements were culled from the preceding list by assessors for one or more of this sort of objection, leaving a total remaining list of 40 statements, 2 ibid, p 12. 3 ibid, p 13.

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with 10 statements remaining and capable of association with each ethical type, up to the ‘3-off’ level. The next stage of instrument development involved the administration of the revised list of statements to a group of specialist lawyers. Quantitative analyses of their responses further refined the statements included in the instrument.

B.3 Tertiary assessment of statements: 20 accredited specialists A group of 20 accredited specialist lawyers (‘specialists’) were then randomly selected from the list of such specialists compiled by the Law Institute of Victoria. Specialists (as opposed to general practitioners) were chosen for the same reason as they were in the Melbourne Study described in Chapter 4; because they are separately listed in a readily available publication (The Law Institute of Victoria annual Diary). These lawyers can be more easily identified as a group of sufficient legal experience to understand what is required of them in terms of their own ethical type preferences, than any other group of experienced lawyers. This group can also readily provide a further (tertiary) reaction to the appropriateness of each statement as a predictor of ethical type. Because of their status in the profession, these specialists were also likely to be sufficiently interested in the effort to assess ethics that they would agree to participate in the development of this measure. This group was also geographically easily accessible for purposes of collection of information.

B.4 The tertiary testing process: Comparison of specialists’ own ethical preferences with decisions as to the ethical fit of statements Two requests were made to the group of 20 accredited specialists: That they record their personal reactions to each statement on a sliding (or ● Likert) scale, which recorded the strength of their views about each statement in categorical terms. In effect, they were ‘owning up’ to their individual preferences for a particular ethical type, rather than just saying whether they agreed with the secondary assessments made earlier as to the relationship between each statement and a particular type. Having made their own ethical type preferences known, they were then asked ● to do as the smaller group of judges had previously done in their secondary assessment and separately consider whether a statement was representative of a particular type (and if so, then which type). As in the earlier secondary testing stage, this process would also permit further refinement of items through the elimination of items not judged to be representative of the lawyer types hypothesised. Specialists were asked to perform these tasks in this order so that results from both could be compared. The sequence of the tasks was important so that specialists’ personal preferences for a type could be recorded before that decision could be

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influenced by their consideration of the technical fit or otherwise of each statement with an ethical type.

B.5 Recording specialists’ views as to their own ethical type In offering an opinion on their own ethical type in the context of each statement, the specialists were rating their strength of fit (or otherwise) to each statement as an indicator of their own preferred ethical type on a 6-point Likert response format as follows: Strongly Agree

Agree

Slightly Agree

Slightly Disagree

Disagree

Strongly Disagree

A 6-point rather than 5-point scale was chosen because 6 points allow for greater degrees of complexity: 5 point scales must contain a ‘don’t know/uncertain’ at the mid-point, which can permit a lack of commitment or knowledge. The request to specialists that they fit their own response to each of the final list of statements was designed to allow them to allocate varying levels of agreement or disagreement with each statement. A statement was seen as a high-strength indicator of a specialist’s particular type if that specialist rated it as ‘Strongly Agree’ or ‘Agree’, or as a lowstrength indicator if they preferred ‘Disagree’ or ‘Strongly Disagree’ for that statement.

Appendix C Prototype scale of preference for legal ethical type

C.1 Introduction The intention in final testing is to demonstrate that these prototype statements are reasonable predictors of ethical type in the Australian context, as supported by reliability analyses involving Cronbach-α values and factor analysis. Based on their responses to the statements on each hypothesised sub-scale (lawyer type), reliability analyses will be run and Cronbach-α values (measures of internal consistency) determined. Conventionally, Cronbach-α values of 0.7 are considered adequate for a scale with 0.8 or above being good; but for exploratory studies 0.6 is acceptable.1 When final testing is completed, a factor analysis will also be undertaken to confirm the dimensionality of the full scale; to confirm the existence of the four hypothesised lawyer type sub-scales; that is, that the scale is comprised of four factors representing the four lawyer types, and that each sub-scale item had its maximum factor loading on the pertinent lawyer type factor. Factor loadings less than 0.3 are eliminated by convention.2 For example, if a statement has a factor loading of 0.5 on the Zealous Advocacy factor and 0.2 on the Relationship of Care factor, it will be deemed acceptable as an item on the Zealous Advocacy sub-scale. But if that statement scores 0.6 on the Zealous Advocacy factor and also 0.4 on the Moral Activism factor, it will be eliminated from the pool of items reflecting Zealous Advocacy. Overall, this process will enable further elimination of poorly performing statements or confirm the predicted statements as strong performers.

C.2 Prototype scale Note that some of the idioms employed in this prototype are regional and are likely to be inappropriate for automatic adoption in other jurisdictions. Further, some concepts in this prototype may be unfamiliar to civil law practitioners or seem forced to participants and devoid of context, regardless of jurisdictional experience. However, the ability of the scale to determine preference according to the statistical processes described above and in the Australian context, is dependent on participants making decisions about responses according to categories. It is hoped that the 1 See GD Garson (2009). Reliability Analyses. Retrieved 13 September 2009 from ). 2 BG Tabachnick and LS Fidell (1989). Using Multivariate Statistics (2nd ed). Harper Collins, New York.

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pre-tests described above have eliminated inappropriate statements from the scale and reduced the degree of difficulty in participant decision-making. Strength of Preference for Lawyers’ Ethical Types Instructions: For each statement, place an ‘X’ in the grey box below each statement that most closely represents your response to that statement. [Note that the Likert scale immediately below appears for each statement in the operational survey but is omitted from the body of this version to conserve space] Strongly Agree

Agree

Slightly Agree

Slightly Disagree

Disagree

Strongly Disagree

You may feel that statements are theoretical and general in nature rather than case or scenario-based and are therefore difficult to agree or disagree with. Nevertheless, please persist with your responses in the interests of discovering your general ethical preferences.

Statement Achieving what my client wants has to be my main priority. I would much rather take a collaborative or restorative approach to problem solving, than a combative stance. I feel the need to be loyal to the fair process of law before individual loyalty to my clients. I can only act for clients who have ‘just’ claims. It is more important for me to strengthen relationships with my clients, my colleagues and those around me than it is to get too wound up about unfair procedures and doubtful legal principles. My clients’ enterprises ultimately depend upon their acceptance of the spirit and not just the letter of the law. Concerns for justice and service are all very well, but if ‘push comes to shove’, what my client wants has to come first. I try to practise law responsibly in the interests of justice above all else. It’s pretty important to me to act for ‘morally worthy’ clients. I cannot see myself as a whistleblower. I might do more than just refuse to act if my client insisted on an illegal course of action. I probably care more about how my client will cope emotionally with a difficult decision than I do about how much it might cost them financially. It does not matter too much how law reform is achieved, as long as it happens. I put my client’s interests before anything else, regardless of who the client is or what area of law is involved. I prefer dialogue, mediation and a careful focus on principled negotiation in resolving disputes for vulnerable clients. The legal profession needs to be more ambitious in persuading its corporate clients to deal proactively with climate change. I find it hard to practice within ‘the rules’ when my clients object.

256

APPENDIX C

The concrete, practical needs of my clients for accommodation, income and health, tend to concern me more than abstract ideas of justice. Social reform and the careful redistribution of wealth through the law, is more important than personal happiness. As long as I act within the law and in my clients’ interests, the morality of my actions is irrelevant. I try to care for clients at an emotional level and even if this is sometimes difficult, it is more satisfying than trying too hard to be certain about my legal advice when very often I can only offer provisional certainty. For me, my reputation has more to do with fairness and how I get to a result, than with the result itself. Sometimes it’s necessary to think less about your client’s personal circumstances and more about what their case could do to improve justice. Clients need to know that I am not in their pocket. I care more about maintaining my own and my clients’ personal relationships than I do about achieving justice. Private legal practice is not a good fit for those who just want to ‘do good’. My ability to earn an income in legal practice depends more on my reputation for integrity than on my technical skills. My client’s ‘best interests’ are usually governed by their network of relationships rather than their legal rights. I prefer to think of law reform and better access to justice as my chief interests. Saying ‘no’ to clients is sometimes necessary in order to preserve the system on which (even though they might not care either way) their own ultimate welfare depends. Public interest lawyering is very attractive to me. Paying clients are entitled to receive what they ask for. If harm has to be apportioned, those with the least resources should suffer the least harm. Apology, reconciliation and the acceptance of moral responsibility is more important than the ‘just’ but rigorous enforcement of legal rights. I occasionally do things in legal practice of which I am not particularly proud. I find I can actually do a better job for my clients by helping them navigate beyond ‘pure’ legal advice into the realm of policy and purpose behind legislation. My aim is to do all for my client that my client would do for themselves, if they had my knowledge and experience. If I heard a lie uttered by my client or my witness in Court, I would correct the deception as soon as possible. The context and circumstances of individuals’ suffering are more important than universal legal principles. It is ethical to deliberately silence a client who wants to tell me ‘exactly what happened’.

Index

360-degree technique of assessing character 153, 237

Abbott, Andrew 49, 55, 56, 192, 234 Abel, Richard I 81–2, 236 accountability 7, 18, 19, 85, 232 clients’ rating of 176–80 culture of 6 formal 85 inappropriate 60 lawyers’ views about client rating of 177 professional self-interest in 3, 57–8, 99–100

accreditation of specialist lawyers and ethics confirmation 171 ‘fit and proper person’ test 165, 166 in Ontario 168 admission mechanisms 62 adversarial justice systems 83, 195, 197, 198

adversarial or zealous advocate lawyer type see zealous advocate lawyer type Alfieri, Anthony 17, 89 Allen and Overy LLP 198 Allens and Big Pharma case 94 Allens Arthur Robinson 24, 25 altruism 55–6, 133, 236 see also pro bono work American Association of Law Schools 120 American Bar Association Model Code of Professional Responsibility 33, 34, 142

Section of Legal Education and Admissions to the Bar 120 Anderson, Don 139 Andrews, Kenneth 96, 97 Aristotle 68 Arnold, B 50 Arthurs, Harry 98–9, 101 Arup, Christopher 55, 56 assessment, ethics of 5 Association of the Bar of the City of New York 100

Atkinson, R 72, 210 Australia cases of ethical dysfunction 21–9 Cole Commission of Inquiry 26 competition policy 232 continuing legal education (CLE) 230 law reform in 232 National Competition Council 51 national rule of conduct 18 Australian Federal Police 22 Australian Law Reform Commission 95 Australian Lawyers’ Values Study 38–41, 203, 206

effect of prior completion of an ethics course 43–4 focus groups 45–7, 90 gender differences in ethical awareness 41, 43

implications of 44–8 longitudinal research 39 pressure to behave unethically scenarios used in 39, 42 AWB Limited 25–6

41

Bar Association of Queensland, rules of conduct 22–3 bar associations see law societies and bar associations Barnard, Jayne W 107, 204 Benjamin, Andrew H 139 billable hours 90, 98, 227 Boudon, Raymond 199 Bourdieu, Pierre 50 Brain and Mind Research Institute 143 Brayne, Hugh 191 British American Tobacco Australia Services 7 Buffini, Fiona 9 Burnside, Julian, QC 69 business and ethics 92–125 and competence 101–15 conflict between 95–8, 227 information barriers 93–5

257

258

INDEX

business and ethics (cont.) and professionalism 95–8 virtue and 92–3

cognitive dissonance

Callinan, Ian QC 27 Carnegie Report 120 Carrington, Paul 141 Chambliss, Elizabeth 198 Chandler, Kevin 152 character 69, 118, 153, 217 assessment of 153, 237 development of 163–87, 217 and morality 8 recommendations for developing 185–7 relevance of lawyers’ disciplinary histories 163–5, 167–70

studies of 138–42 Chinese walls 93–5 civility 64 Clarke, Ben 196–7, 201 Clarke, Steve 104 Clayton Utz 7–9, 97 client complaints 10, 37, 131, 208 client confidentiality 3, 37, 46, 178, 179, 183

client file audits 180–4, 186, 238 assessment of 111 client consent for 183 corporate clients’ views 184–5 interpretation of 181–3 mitigating the cost of 184, 187 omissions in 110, 182 usefulness of 185 client interviews, factors in 113 client satisfaction 111, 115 as an indicator of competence 103, 173–6

clients’ views about lawyers’ performance 16, 102, 114–15, 157, 172–3, 238, 242–3 ability to assess ethics 172–3, 180, 184 corporate and business clients 115, 177, 184–5

corporate clients opinions about lawyers 177, 184–5

ethics feedback from niche clients

89, 90, 146, 202, 226,

227

180,

186, 238

rating of interpersonal skills and accountability 176–80 recommendations for use of 186–7 research on 173 understanding of legal process 114, 180 codes of ethics 82, 97 see also rules of conduct

Cohen, George M 234 Cole Commission of Inquiry 26 commercialised professionalism 59, 202 communication skills 176, 179, 238 see also interpersonal skills competence 101, 108, 229 assessment of 101–15, 124–5, 135, 176, 182, 231

clients’ views on 114–15 and continuing legal education 230 and ethics 101–15, 129, 159 and experience 230 lawyers’ views on 124–5 post-admission training 119–24 quantitative approach 112–14, 128–31

research on 102–3, 108–14, 124 terminology used in assessment of 108–9

transaction criteria 109–12 and up-to-date knowledge 134 competition 51 competitive advantage 51, 52 compliance culture of 98 rule compliance 118 confidence in the legal system 2, 4 conflict between law as business and law as a profession 95–8, 227 conflict of interest 35, 57, 67, 78, 94, 216, 219

Conley, James 141 consequentialism 68 consumer movements 19, 58, 102, 232 continuing legal education (CLE) 101, 164, 165, 230, 236

accreditation of providers 236, 237 assessment of 236 and competence 230 effect of 230–1 mandatory 171 situational training 203 continuing professional development (CPD) 101, 185, 228–9, 236

accreditation of providers 228, 229 cost of developing accreditation standards 229, 237

rules-based approach 228 varying quality of courses 228 Cooper, Jeremy 108 Corbin, Lillian 202–3 corporate governance 97, 98

INDEX

corruption, prevention of 58, 60 courage 9 and judgment 87–91 and virtue 91, 118, 189 criminal law criminal lawyers’ ethics 196–7 importance of context 23 role morality in 77 Cummins, Justice 77–8 Cunningham, Clark D 113, 181 standardised clients 113–14, 115, 177 Curry, Crossen and Donohue 29–31 Daicoff, Susan 139–41, 144, 146, 191 De Groot, John 114 deception 61 see also lying among lawyers deontologism 68 depression among lawyers 142, 144, 145, 146, 227

causes of 142 see also mental health, mental illness Dersowitz, Alan 68 Dingwall, Robert 52–3, 54 disciplinary histories assessment of 186 and character 163–87 and ethics confirmation 170–1 and re-licensing 166 recommendations for use of 186 relevance of for ethics assessment 167–70

and use of referees 167–70 dispute resolution mechanisms 83 distrust of the legal profession 1, 8, 10, 32, 136

Dolovich, Sharon 11, 98 Donaldson, William 97 Douglas, Kate 199 Dunn, Ian 171 duty to the law 47, 78 Eames, Justice Geoffrey 7 Economides, Kim 18, 188, 209, 214 economists’ views on professionalism 50–2 Einfeld, Judge Marcus 63–4, 90 emotional intelligence 67, 112, 191, 193, 223

emotions, awareness of 191–5 Enneagram 141, 153, 210 Enron 31–3 ethical awareness 14–16, 34, 35, 62–4, 98, 201, 205–6, 229 62, 90, 188–224

assessment of

259

changes with experience 39 and ethical behaviour 222 gender differences in 41, 43 and intentionality 207–9 measurement of 188–213, 224 testing for 205 training in 204 and trust 72 ethical behaviour 4, 12, 229 benefits for firms 16 core qualities of 20–61 decline in 134 definition 5 and ethical types 208 and ethics assessments 222 and ethics awareness 204, 205–6, 222 and experience 197 factors other than rules in 192 improvement of 225–8 indicators of 226 recommendations for achieving and sustaining 223–4 research on 127 scale of 208 and status in the firm 202–3 and values 205–6, 214 ethical complexity 18, 67, 81–7, 97 awareness of 65, 75, 90, 164, 189, 211, 214

and moral courage 87–91 ethical decision-making 34, 86 complexity of 216 factors other than rules in 193 importance of context 136 and mental health 146 systemic pressure on 195 values and 192 ethical diversity 18, 67, 189 ethical dysfunction 20–9, 61 Australian examples 21–9 North American examples 29–34 United Kingdom examples 34–7 ethical infrastructure in law firms 17, 24, 116, 126, 190, 236

ethical issues, ranking of 128–31 ethical methods 4, 5, 75, 97, 237 awareness of 164, 189, 214, 223, 226

choice of 11 consequentialism 68 deontologism 68 relationships between 70 utilitarianism 68 virtue ethics 68–9

260

INDEX

ethical sensitivity and communication skills indicators of 17 ethical standards 12, 46 ethical types 4, 5, 72–5, 118, 210 adversarial or zealous advocate 74, 75–80, 85–6, 114, 147, 196, 197, 226

assessment of 190, 237 awareness of 145, 164, 189, 208, 211, 237, 250–3

and ethical behaviour 208 ethicist (or relationship) of care 74, 85 and honesty 147 lawyers’ preferences for 75, 208, 209–12, 223, 237, 253, 254–6

moral activist 74, 82, 85, 114 research on 212 responsible lawyer 74, 85, 114 scale items identified 213 ethicist (or relationship) of care lawyer type 74, 85 ethics 23, 54, 57, 133

authority conception of 79–80 and business 92–8, 125 clients’ views on 114–15 of commercial litigators 197–202 and competence 101–15, 129 of criminal lawyers 196–7 development of 2 dimensions of 64, 218–19 economic reasons for encouraging enhanced ethics 64, 92, 234 importance of context 23, 82, 202 institutional support for 58, 115–16 key concepts involved in 21, 128 and morality 65 and professionalism 10–13 recommendations on 236–9 regulation of 100, 234 research on 38–48, 195–203 and stress 15 testing of 135 and values 98–101 virtue ethics 68–9 ethics assessment 2, 20–1, 36, 50, 60, 91, 101, 188–90, 225–39

see also ethics assessment: development of a scale for as central value propositions 16–18 clients’ perceptions of lawyers’ ethics 172–3

consequences of an inadequate assessment 221–3, 224

costs and benefits of

226, 229, 234–6

critical incident examinations 201 entrenchment of 225–39 frequency and timing of 104, 221, 238 lawyers’ opinions about 126–62 learning from the process 221 limitations of 17 management by the profession 235 minimum rating 221 peer interviews 136, 214–20, 237 portfolio approach 200–1 psychological issues in 136 recommendations 236–9 research on 195–203 use of scenarios and anecdotes 107 and values 16–18 ethics assessment: development of a scale for 212, 250–3

accumulating assessment ratings 220–1 assessment through peer interview 214–18, 237

combination of qualitative and quantitative methods 213, 224 development of quantitative indicators 214

implications of such a scale 213–14 methodology for 212–13, 250–3 minimum rating 221 peer interviews 213, 214–20, 224 use of scenarios 214 ethics confirmation 170–1, 186, 238 ethics courses 65, 137, 164, 202, 207 effect of prior completion of 43–4 effect on personal versus firm loyalty 44

effectiveness of 65 integration into legal education 65 post-admission 203 ethics of care 140 experience 14–16, 36, 127, 197, 203 fairness 83, 85, 96, 199 family law 179, 182 Fenn, Paul 52–3, 54 fiduciary obligations 51, 83, 150 Finkelstein, Ray 124 ‘fit and proper person’ test 143, 165, 166 Flood, John 199 Flower and Hart 27–9 Fortney, Susan Saab 198 franchising 102, 103, 109 Francis, Andrew 72, 75, 232 Freidson, Eliot 49, 57–8 Frenkel, Douglas 198 Friedman, Milton 95

INDEX

Gerber, Leslie 99 Giddings, Jeff 108–9 Gilbertson, Brian 98 Gilligin, Carol 85 Glasbeek, Harry 80 Gleeson, Chief Justice 95 Gleeson, Gerald 97 globalisation, and ethics 98–9 Goldberg, Justice 27 good character requirement for admission 143, 165, 166

good faith 85 Goode, W 48 Gordon, Robert W 31, 79, 232 governance, corporate 97 government intervention 4, 18–19, 138, 235

Granfield, Robert 142 greed 30, 227 Griffiths-Baker, Janine 35 Hall, Kath 26 Haneef, Mohamed 22–3 Hanlon, Gerard 59 Hedegard, LM 140 Heins, M 139 Holmes, Vivien 26 honesty 147–50, 237 definition of 147 and integrity 132, 136–8 psychological testing for 136–8, 154–9, 160

questions for self-appraisal of 148 testing for 148, 237 and willingness to tell the truth 149 Howard, Prime Minister John 69 Huberman, Michael 188 human rights, charters of 144 Hunter, George 31 Hutchinson, Allan C 84 identity 63 Illinois Lawyers’ Assistance Program 143 Incorporated Legal Practice regime 51, 116

indemnity insurers 126 information asymmetry 52, 99 information barriers 93–5 reason for 93 scepticism about 94–5 informed consent 61 insider trading 41 integrity 55, 58–61, 76, 147–50, 237 assessment of 150–2, 154–9, 190, 237

261

combined interview and psychological assessment 156 development of a scale to measure 154 institutional support for 98 psychological testing for 126–38, 152–9, 160, 162

self-appraisal of 160–2 uncertainty about 58–9 intentionality, and ethics awareness 207–9 International Bar Association 1 interpersonal skills 121, 131 assessment of 112–14 clients’ rating of 176–9, 180 lawyers’ views about client rating of 177

James Hardie Industries

24–5, 87, 114,

211

judgment 87–91, 118, 164 complex 84, 195–203, 214, 226, 237 corruption of 89, 200 and courage 88 situational 89 jurisprudential cultures 127 justice 83, 85, 96, 199 Kang, Terry 142 Kant, Immanuel 68 Kay, F 50 Kearns, Anthony 16 Keim, Stephen SC 22 Kennedy, Duncan 82 Kessler, Judge Gladys 13, 192 Kilpatrick, Dean 114, 115 Kirby, Justice Michael 13 Kirkland, Kimberly 36, 198 Koenig, Thomas 142 Kohlberg, Lawrence 73, 210 Kronman, Anthony 10, 11, 99 large law firms 34–7, 50, 133 culture of 11, 198 pro bono activity 231 Larson, Magali S 49, 52, 54 law as a business, and ethics 92 Law Council of Australia 12, 27 law firms approach to pro bono work 133 business models 16 conflicting loyalties in 34–7 culture of 11, 21, 152, 200, 220, 232 ethical brands 16 ethical consciousness in 89 ethical infrastructure 17

262

INDEX

law firms (cont.) honesty and fair dealing between and among partners 133 large law firms see large law firms small firms 50, 133 values of 48, 99 workplace-friendliness 16 Law Institute of Victoria 28, 131, 134, 165

Information Barrier Guidelines law societies and bar associations

94 28, 53,

100, 137

243–5

and continuing legal education 231–4 and ethics assessments 221, 222 ethics confirmation processes 171 interviewing committees 160 and mental health 145 obligations of 19, 138, 227 opportunity to promote professionalism 1–19

power of 232 practice management programs 93 and psychological testing 158 regulatory role 3, 10, 158 representative role 3 suburban and regional structures 239

surveys of clients 175 testing for honesty 160 testing for integrity 160 use of referees 170 Law Society of England and Wales

preparedness for practice 159–60 professional autonomy 28 public attitudes to 20, 98 self-interest 6–10, 57–8 sole practitioners 238 specialist lawyers 5 stress on 146 theft by 28, 207 types of 72, 73–5, 97 lawyers’ ethical intentions 13, 41–3 lawyers’ opinions 124–5, 126–62, on awareness of values and ethics

204,

205–6

on client file audits 180–3 on client rating of interpersonal skills and accountability 177–9 on ethics assessment and psychological testing 126–62, 218 reasons for considering 126–8 on professionalism 131–5 on psychological testing for honesty and integrity 154 on rankings of key issues 128–9, 130–1

on relevance of disciplinary histories 167–70

18, 34,

111

conflict of interest rules 35 Legal Practice Course 122–3, 124 outcomes test 122–4 Training Framework Review 122 lawyer–client relationship 59, 147 see also client confidentiality lawyers attributes of 138–42, 144 autonomy of 158, 189 client over-dependence 29–34, 189, 200, 216

contribution to economic activity 2, 52 expert knowledge 49, 50, 81 human rights orientation of 153 independence of 2, 57, 135, 158 influence of 2 obligations of 25, 51, 52, 55, 81 peer culture 13 poorly performing 163 power and prestige of 10 predictors of success 121

on values 204 leadership 153, 171 legal aid 102, 109 and assessments of competence 102–3 surveys of clients 173 legal education 20, 43, 64, 88 black letter approach 21 continuing education 107 effectiveness of 119 ethical education 126, 127, 225 integration of ethics courses in 65 and mental health 146 post-admission 119–24, 126, 127 see also continuing legal education, continuing professional development skills and values education 120 value-neutral 66 see also ethics courses legal ethics see ethics legal misconduct see misconduct legal ombudsmen 232 legal profession perceived decline in 222 pressure on 139 Legal Services Board 235 legal services commissioners 232 Lewis, Philip S 81–2, 84

INDEX

Liberman, Jonathan 8 licensing of lawyers 163, 236 periodic re-licensing 164, 165, 171 progressive 53, 122 renewal of practising certificates 166 restricted 122 Loban, Alton 66–7 Longstaff, Simon 9, 59, 98 Lopez, Judge Maria 29, 30 loyalty 51, 59 Luban, David 65–6, 82, 98 character 69 cognitive dissonance 89 ethical awareness 90 ethical judgment 90 ethical methods 67–8, 71–2 Milgram experiments 88, 89, 199, 200, 201

professionalism 98 values ‘dissonance’ 47 Luhmann, Niklas 60 lying among lawyers 147 active lies 147, 148 rationalisations for 148 and the right to conditional silence

148

MacCrate Report 120 Macumber case 33–4 Maharg, Paul 113–14 Makkai, Toni 49 managerialism 103 Marks and Spencer 94 Marsden, John 76 Mason, Sir Anthony 9 Massachusetts Bar Association 29 Maughan, J 200 McCabe case 7–9, 12 McCabe, Rolah 7 McQueen, Rob 41 medical education 104 medical ethics 102, 227, 237 assessment of 107, 214 and confidentiality 183 medicine definition of professionalism 105 disciplinary enforcement and publication of information 104 in-context peer and patient observations 106

measurement of quality in 104–8 professional organisations 10 standardised patients 106 Melbourne Study 5, 128, 203–7, 228–9 areas of interest identified 130

263

background to 203–4 and continuing professional development 228–9

core concepts identified 246 decision not to canvass clients’ views 242–3

detailed methodology 246–9 disciplinary histories 166 and psychological testing 152 qualitative analysis of opinions of interviewees 130–1 quantitative and qualitative methods 245–6

quantitative ranking of issues 128–31 research methods 240–9 selection of subjects 241–2 survey method 241–2, 243–5 tree display of results 131 Menkel-Meadow, Carrie 83, 85 mental health 137, 164 assessment of 142–7, 159–60 and ethical decision-making 146 lawyers’ awareness of issues 145, 146 mandatory disclosure requirements 144 sample questionnaire 145 mental illness 143, 146 see also depression Milgram, Stanley 88–9, 199, 201 misconduct 7, 21–9, 53, 225, 227 consequences of 47, 115, 134, 207 defenses against 30 disclosure of prior offences 165–71 financial consequences of 116 online databases of 79 and values awareness 207 mistrust 52–5 ‘model client’ methodology 113, 174–5, 176, 177

Moore, Nancy 35 Moorhead, Richard, 201 competence 108, 119, 173 ‘model client’ method 113, 176 Quality and Cost Report 174, 197–8, 202

moral activist lawyer type 74, 82, 85, 114 moral autonomy 199 moral choice, certainty about 66, 67 moral development 73, 210 moral intuition 71 morality, and ethics 65 multidisciplinary partnerships 51, 94 Multifactor Leadership Questionnaire 153

Murray, Ken

30

264

INDEX

Myers-Briggs Type Indicator

140, 141, 153,

160, 191, 210 Myles, Matthew 188

Natalier, Kristin 49 National Conference of Bar Examiners 120

National Conference of Chief Justices 120 National Council of Bar Examiners 120 Nelson, Robert 198 neo-liberalism 55 New South Wales Incorporated Legal Practice regime 37 Office of Legal Services Commissioner website 105 Nicolson, Donald 38, 82, 88, 91, 226 North, Ronwyn 117, 201 Oakley, Justin 104 obedience 199 O’Leary, M 209 O’Neill, Onora 59–61 organisational psychology 153 overcharging 15, 28, 216, 220 Owen, Justice Neville 43 Paine, Lynn Sharp 96 Parker, Christine 37, 232, 233, 234 ethical infrastructure 17, 24, 116, 126, 190, 236

ethical types 73–5, 85–6, 210 Parker, Stephen 6–7, 56, 83–4, 195 Parsons, Talcott 48 Paterson, Alan 108 continuing legal education 230 ‘model client’ method 113, 174–5, 176 professionalism 18–19, 102 Quality and Cost Report 173, 174 Paterson, Murray 230 peer interviews 224, 237 preparation for 215 re-sitting of 217 scenarios used in 219 standardised scenarios 216–17 template for 218–20 timing of 215 usefulness of 215 performance standards 103 personality 138–42, 145, 151, 167 Peters, Don 140 Powell, Michael J 100 power 30, 50, 54 Preston, Noel 68 pro bono activity 41, 55, 56, 133

compulsory 135, 160, 231, 236 lawyers’ attitudes to 159 professional commitment to 56 professional indemnity insurance 117, 184, 185, 193, 239

professional privilege 26, 54, 57–8, 95 professional responsibility, assessment of 119

professional services assessing the quality of 99–100 factors that improve and encourage 100 professional standards, perceived decline in 1, 20, 120

professionalism 9, 19, 75, 85, 102, 159 and accountability 57–8 and altruism 55–6 black letter approach 200 commercialised 59, 202 and commercialism 1–6 conclusions about 135–6 conflict with business aims 95–8 core qualities of 48–61, 105 and courage 90 crisis in 12, 98, 144 economists’ view on 50–2 and ethics 10–13 and globalisation 99 and integrity 58–61 lawyers’ commitment to 55 lawyers’ perceptions of 131–6, 202 measurement and assessment of 58, 109 in medicine 10 quantitative ranking of issues 128–31 and regulation of lawyers 56 role in society 227 sociologists’ views on 48–50 stability in 170 techniques for assessment 106–7 testing of 232 and trust 52–5 professions 54, 233 psychological health, assessment of 142–7

see also mental health psychological testing 137, 160, 237 accuracy of 158 cost of administration 141, 144 for honesty and integrity 136–8, 152 to identify ethical misbehaviour 138 lawyers’ opinions about 126–62 negative possibilities of quantitative testing 157 for preparedness for legal practice 159–60

INDEX

for psychological types 237 recommendations 159–60 sample questionnaire 145 support among lawyers for 158 psychometric testing 151 Purcell, W 200 Quality and Cost Report 174, 197–8 quality control mechanisms 19, 37 see also ethical infrastructure in law firms quality, difficulty in assessing 109 Queensland Law Society 28 Professional Standards Committee 27

Queensland Legal Services Commissioner 23, 37

Ravlic, Tom 109 Rawls, John 71 referees, use of 167–70, 179, 186 reflection, need for 32, 48, 121, 190, 201, 238

Regan, Milton C

70, 116, 117, 118,

198

regulation of lawyers

115–16, 134, 137,

158, 165, 206, 233 co-regulation 28 cost of 59

public intervention 18–19 and professionalism 56 and psychological testing 137 self-regulation 28, 233 and trust 53 Reich, Stephen 139 relativism 65–6 reputation 13, 156, 184 respect and disrespect for lawyers 21 responsible lawyer type 74, 85, 114

responsibility, culture of 195 Rhode, Deborah 1, 11, 45, 65–6, 85, 204,

265

rules of conduct 44, 48, 147, 192, 214 and ethical behaviour 23, 66, 127 knowledge of 188, 237 Sarat, Austin 198 Schaffer, TL 99 Schmeyer, Ted 17 Schon, DA 114 Scotland, mandatory continuing legal education in 171 Segal, Steven 63–4 self-interest 6–10, 52, 57–8, 234 Seligman, Martin 142 Shanfield, SB 139 Shapiro, Susan 35 Sharpe, Michelle 142, 143, 146, 151, 227 Sherr, Avrom competence 108, 109, 115, 176 ‘model client’ method 113, 174–5, 176 Quality and Cost Report 173, 174 relationship between experience and competence 121–2, 230 training 115 use of client files 109, 177, 180 Silver, Marjorie A 112 Simon, William 32, 82, 88 social capital 50, 55, 158 social responsibility 56 sociological views of professionalism 48–50

Solicitors Regulation Authority 235 Sommerlad, Hilary 103 Specialist Accreditation 101 specialist lawyers 5, 165 Spigelman, Chief Justice 52, 94–5, 99–100 ‘standardised client’ technique 102, 113, 115, 180, 186

Stern, David 104, 106–7, 214 Streeton Report 117 stress, and ethics 15 Stuckey, Roy 107, 122, 231

208

ethical methods 67–8, 71–2 professionalism 98 rights 140, 195 risk management 17, 18, 116, 126, 180, 185, 239

credibility of 116–19 utility of 118 Rogers, Justice Andrew 109, 188, 214 Rogers, Justine 18 role morality 30, 75, 76, 78, 80, 82, 91 in criminal proceedings 77 Rule of Law 48, 80, 144

Tasmanian Law Society 28 tax evasion 31 tax products 31–3 The Australian Lawyers’ Values Study 38–41 The Law Society, Training Framework Review 200 Thielens, WP 140 Thornton, Margaret 96 tobacco industry and lawyers 13 torture 33–4, 68 ‘Torture Memo’ 33–4 total quality management

266

INDEX

transaction criteria

102, 103, 109–12, 133,

174, 180–4

limitations of 111–12 types of 110 transparency 60, 61, 116 trust 10, 36, 62, 84 crisis of 60 hormonal influences 151 and market controls 53 and mistrust 52–5 questions for self-appraisal of 160–2 research on 151 threshold investigation of 151 truthfulness of clients 77 trustworthiness, assessment of 150–2 truth 60, 149–50, 197 Uhr, John 58–9, 61 unethical behaviour see misconduct United Kingdom assessment of legal aid practitioners 182 Clementi Review 34 client file audits 180–4 fragmentation of the legal profession 59

large law firms 35 Legal Aid Board 109 legal misconduct 34 measurement of competence 109–12 measurement of quality in medicine 104

post-admission assessment 122 Quality and Cost Report 174, 197–8 Solicitors Regulation Authority 34, 123

surveys of clients 173 United States Carnegie Report 120 client file audits 181 Clinical Legal Education Association 122

debate about public ethics 32 Department of Defense Office of Legal Counsel 33 large law firms 36 Law Schools Admission Committee

National Conference of Bar Examiners 120

National Practitioner Data Bank 105 Sarbanes–Oxley legislation 31 Securities and Exchange Commission 97

Uphoff, Rod 196 utilitarianism 68 Utset, Manuel A 73 values 16–18, 45, 91, 140 assessment of 91, 193 awareness of 47, 188–95, 201, 204, 205–6, 223, 224, 226, 237 98–101, 192, 204, 205–6, 214 and fact and emotion 67 identifying 214 lawyers’ opinions on 204 Melbourne Study 203–7 personal values 45, 56, 97, 98–101 plurality of 66 research on 38–41 testing of awareness of 56, 194–5, 205 Verkuil, Paul 142

and ethical behaviour

Victoria accreditation of specialist lawyers 182 Continuing Professional Development Rules 231 disclosure of prior offences 165–71 Doctor’s Health Program 227 Legal Practice Course 165 Legal Services Board 143–4 regulation of lawyers 138 renewal of practising certificates 143–4, 166

requirement for pro bono work 133 self-regulation of lawyers 28 Specialisation Board 166 Vinson and Ekkins LLP 32 virtue, and courage 91, 189 virtue arc 71 virtue ethics 68–9, 81, 91, 164, 222 criticism of 69 strengths of 70, 71 training in 238

121

Law Schools Admission Test 121 legal education 120 legal misconduct 31–4 measurement of quality in medicine 106

National Action Plan on Lawyer Conduct and Professionalism 120

waterboarding 34, 68 Webb, J 38, 200, 226 Webb, Julian 82, 88, 91 Wendel, V Bradley 66, 79–80 Western, John 49 whistleblowers 8, 216 White Industries v Flower and Hart

27–9

INDEX

Whitton, Evan 76 Wilkins, David B 198 Williams, Bernard 149–50 Williams, SW 140 witness coaching 196, 197 Woolley, Alice character 164, 170, 204, 217, 222

267

psychological testing 137, 152 virtue ethics 69–70 Zak, Paul 151 zealous advocate lawyer type

74, 75–80, 85–6, 114, 147, 196, 203, 226 Zlaket, Thomas A 78

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Researching Learning Difficulties: A Guide for Practitioners

Ethics Consultation: A Practical Guide

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Stamp Duty Land Tax: A Practical Guide for Lawyers

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