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.