The Lawyers' Compass - your ethics starting point

The first, and perhaps the most important, thing to be said about ethics is that they cannot be reduced to rules. Ethics are not what the [lawyer] knows he or she should do: ethics are what the [lawyer] does. They are not so much learnt as lived. Ethics are the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process. If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion.

Sir Gerard Brennan

Bar Association of Queensland, Continuing Legal Education Lectures

No. 9/92 - 3 May 1992.

When confronted with an ethical problem where do you start in your search for an answer?

Historically, rules have served as a regulatory tool, but ethics are about something more – a personal commitment to doing what is right. To the legal profession our ethics represent our commitment to do what is right by the law, by our clients, our colleagues and by the community.

A lawyer’s ethical obligations involve a combination of extrinsic (compliance) and intrinsic (personal commitment to our duties) requirements – and the greatest of these is the intrinsic motivation of your own character.

There has been a push in recent times to reduce ethics to the extrinsic – rules and regulation. Yet this approach risks creating a divorce between rules and values, between code and character. Ethics requires more from us than mere compliance. It requires a commitment to the spirit of what is written and the principles behind the duties owed. This, in turn, requires character – the kind of character the Court expects in its ‘fit and proper’ officers.

The Ethics Compass attempts to outline the principles that should guide us and form the foundation of conduct rules. While not aiming to answer all of your ethical questions, its purpose is to provide a starting point and context to guide your ethical thinking.

Difficult situations and hard cases will confront us. Most of the time, however, the answers are not hard to find provided you understand the fundamentals - those principles that drive our duties and how these apply to the various stakeholder groups we serve.

The Lawyers' Compass Explained

The compass is designed to be easily memorised, summing up legal ethics in 10 words.

Its three rings signify:

Outer ring: The context of the work we do.
Centre ring: The stakeholders we owe duties to.
Inner ring: The ethical principles that drive the duties we owe.

1. Outer ring: justice and service

Lawyers occupy a critical position in the administration of justice and the rule of law. So critical is the role we play to the proper functioning of civil society that mere legal qualifications or membership of a professional association are not enough to equip us to practice law. The Supreme Court reserves to itself the right to appoint legal practitioners, and even then only those who have shown they are ‘fit and proper’ persons to hold that office.

As officers of the Court lawyers have a fundamental duty to assist and promote the administration of justice and to serve the community to that end. That’s why the practice of law is unlike any other business and will always be far more than a mere ‘industry’.

Critical Questions:

Do my actions serve the administration of justice and uphold the rule of law?
Do my actions encourage public confidence in the administration of justice and in the legal profession?
Do my actions serve the best interests of my client?

2. The centre ring – the stakeholders

This comprises the “Four C’s” of court, client, colleague and community.

Court: As officers appointed by the Court our first duty is to the Court and the law it upholds. If ever the instructions of our client conflict with the requirements of the Court, those instructions must be refused.
Client: Within the parameters set by our duties as officer of the Court, we are duty bound to defend and advance the best interests of our client without regard to any other influence.
Colleague: In an adversarial system we can lose sight of the fact that those representing the other side are, nonetheless, our colleagues and our client is best served when we maintain a good working relationship with them.
Community: The functioning of civil society is dependent on its lawyers ensuring public confidence in the rule of law and in the legal profession is maintained. Our primary duty to the community is to ensure we do nothing to jeopardise that confidence. Beyond this, lawyers share a collective responsibility to ensure access to justice is maintained for all people. For many lawyers and law firms this involves providing some services pro bono.

3. The inner ring: fundamental ethical principles

The four principles apply to each of the four C’s but the application may differ depending on the interaction with each.

Fidelity
Usually translated as ‘undivided loyalty’ or faithfulness, fidelity is related to the noun, fiduciary. As such it primarily describes the loyalty owed to our clients. A lawyer must ensure that the advice and service offered to clients serves the client’s best interests uninfluenced by any other motivation.

In dealing with the Court a lawyer is bound to remain faithful to the law and to the Court’s requirements. In dealing with colleagues, be they legal practitioners or staff working with you or representing the other side, a lawyer must ensure they keep their undertakings (faithfulness to their word) and maintain a relationship conducive to the proper administration of justice. A lawyer’s fidelity to the community is most clearly seen in the commitment shown to enhancing public confidence in the law and the legal profession.

Critical questions:

Am I acting in my client’s best interests?
Is my advice influenced by any factors unrelated to my client’s best interests?

Honesty

Sometimes honesty can simply mean telling the truth. The emphasis is on what is said. At other times it means an absence of deceit with an emphasis on what is not said.

In situations where the Crown must prove its case beyond reasonable doubt, there is no compulsion on the defence to assist the Crown to do this. Consequently, a defence counsel need not correct the mistake of a prosecutor where to do so would breach a confidence or place the accused in jeopardy. We cannot, however, positively assert as correct an error made by the Crown as this would amount to misleading the Court.

What is clear is that it is never permissible for a lawyer to deliberately lie or to mislead either by statement, by action or even by silence (see LSC v Mullins [2006] LPT 012).

This principle applies across all four C’s but has most obvious application to the Court, client and colleagues.

Critical question

Are my statements, actions or omissions intended to deceive or convey something I know to be false?

Propriety

In order to successfully apply for admission to practice law, it is first necessary to prove to the Court that you are ‘fit and proper’ - meaning that you are of suitable character to warrant the Court’s confidence. ‘Propriety’ is derived from the same root as ‘proper’ and relates to how you conduct yourself in relation to all four C’s. Clearly, civility and respect for others plays a significant part in this.

Critical question

Am I treating others as I would like to be treated by them?

Competency

There is no compulsion upon a solicitor to take on every matter that presents itself and instructions should only be accepted by a practitioner confident of their competency in regard to the matter presented. On this issue Chief Justice de Jersey has noted:

“…it is plainly of great importance for a practitioner not to take on work beyond his or her capacity, but that should not give rise to undue timidity where the capacity exists. Where the capacity is lacking, it is not only potentially negligent, but in my view unethical as well, for the practitioner to act. As said in Vulic v. Bilinsky (1983) 2 NSWLR 427, 483:-

“… if a solicitor inexperienced and lacking knowledge in the field accepts instructions to act for a person injured at work, he should inform the client of his lack of experience and give the client the alternative to instruct a solicitor who has a degree of experience and expertise in that field. At the very least, if such an inexperienced solicitor wishes to accept those instructions, he should protect himself and his client by seeking advice from Counsel, and this means the furnishing of proper material to Counsel upon which advice might be given.””

(Chief Justice de Jersey AC, “Negligence – The Impact of Specialisation”, presented at the Specialist Accreditation Conference on 8 April 2005, p 5-6)

The principle of competency has most clear application to clients and to the Court, though an incompetent practitioner will negatively impact colleagues and also the public’s perceptions of that practitioner and confidence in the profession.

Critical Questions

Do I have sufficient knowledge and experience to provide appropriate legal advice in this area of law?
If not, can I obtain adequate counsel or support from colleagues to ensure the client’s legal needs are met?