Time for an ethical 'makeover': lawyer responsibilities

Last month the NSW government inquiry into James Hardie was concluded with the release of Commissioner David Jackson’s report.

Although Jackson’s report clears James Hardie’s lawyers, Allens Arthur Robinson, of any deliberate misconduct, they were still found to have breached their duty of disclosure to the court and presumably, therefore, to have engaged in “unsatisfactory professional conduct”.

This finding comes on the tail of a number of controversies involving Allens and the legal profession more generally.

Earlier this year Andrew Christie, a former partner at Allens, filed a claim against the firm seeking compensation for breach of partnership, breach of fiduciary duty, and misleading and deceptive conduct and in 2002 Clayton Utz was criticised by Justice Eames in the Supreme Court of Victoria for “devising a strategy” to destroy various documents so as to avoid handing them over for discovery.

Even if these claims are wrong, the fact that these issues have come about at all is indicative of some serious problems within the legal profession. At the core of these controversies is a conflict over values and priorities.

During the Clatyon Utz incident, some commentators argued that in the race to serve their clients, many lawyers have become all too ready to neglect their duties to the court. When faced with a conflict between the demands of the court and the interests of their clients, it has been claimed that lawyers lack adequate regulatory guidance and many tend to opt in favour of those footing their bills - even under ethically murky circumstances and when the repercussions of deliberately misleading or keeping information from the court is that they may have their practicing certificate revoked or worse.

Conceiving the issue simply as a conflict between lawyers’ responsibilities to the court versus the client, however, is overly simplistic. The reason lawyers fail to adequately respond to such conflicts is to be found in their culture and the basic values they identify as being most important.

For many lawyers, legal ethics is simply about the cut and dry rules governing what they can and cannot do. This is reflected, for example, in the content of the legal ethics units taught in most law schools and by the College of Law. Law schools only teach students what they can't do, not what they should do.

Instead of a profession in which the end sought is justice, lawyers are enveloped in a “me” culture in which career success and wealth are prioritised.

A system in which raw ambition is rewarded cannot be self-sustaining. Paper shredding scandals should be expected.

To a certain degree the “me” culture of the legal profession has infiltrated all aspects of its operation and is the reason why young lawyers in big firms do not tend to be an overly happy bunch. They work long hours in a competitive environment where priority is given to generating income through quality of work and large billable hours. Many feel undervalued and expendable, and are indeed treated this way.

I should know for I was one.

As a young solicitor at a large firm in Sydney I frequently heard first hand about the various horrors inflicted on law graduates by the big firms. One junior lawyer I know was contacted by her superiors on her hen’s night so they could inform her that they had received a number of important documents and that despite her impending wedding she was still expected to work the very next day (being a Sunday).

Rumour has it that in another of the large firms a plaque is exhibited in honour of a junior solicitor who literally worked herself to death. Apparently she became so worn out because of her workload that she caught pneumonia and died.

Not surprisingly, after a number of years many young lawyers opt out of working for the big firms or exit the legal profession all together.

In the 2004 Australian Young Lawyers Survey commissioned by the Law Council of Australia, almost half of the young lawyers surveyed indicated that they did not see themselves practising law in five years time or that they were unsure. Of those admitted in 2002, 52.5 per cent of respondents claimed they were considering leaving their current job within the next 12 months.

The United States appears to have been more astute in identifying and responding to these problems. On the work front, for example, the new president of the New York State Bar Association, Kenneth Standard, has prioritised addressing quality of life issues. In terms of regulation, introduction of the Sarbanes-Oxley Act of 2002 ensures that US corporate lawyers are now more accountable for wrongdoing by their clients.

A similar approach needs to be adopted in Australia. Laws prohibiting certain shredding practices and requiring reporting of client wrongdoing to external regulatory bodies should be implemented on a national basis. By themselves, however, such measures will not be enough to ethically reinvigorate the legal profession.

Empirical studies have revealed that normative issues are closely linked with compliance with the law. People do not merely obey the law because it is in their self-interest to do so, but also because they believe it is morally proper to do so. Lawyers not only need to be subject to greater regulation in their practice, but should also have a better understanding of the internal morality of law.

Where to begin?

Law school would be a start.

Over the past couple of decades more and more emphasis has been placed on law students simply learning the tools of the trade. Black letter law subjects are in vogue and jurisprudential subjects (wherein students are better equipped with a proper understanding of the role and nature of law) are increasingly seen as an irrelevant and unnecessary part of the curriculum.

In conjunction with this, compulsory ongoing ethical formation and pro-bono work by already admitted lawyers would go a long way to providing the legal professional with a desperately needed ethical makeover.