Home | Databases | WorldLII | Search | Feedback Journal of South Pacific Law

The Importance of Ethics and the Application of Ethical Principles to the Legal Profession (Working Paper) [2002] JSPL 13; (2002) 6 Journal of South Pacific Law

THE IMPORTANCE OF ETHICS AND THE APPLICATION OF ETHICAL PRINCIPLES TO THE LEGAL PROFESSION

A Working Paper by Peter MacFarlane

The sad truth is becoming more and more apparent; our profession has seen a steady decline by casting aside established traditions and canons of professional ethics that evolved over centuries ...When we speak of the decline in "ethical" standards, we should not use the term 'ethics' to mean only compliance with the Ten Commandments or other standards of common, basic morality.....A lawyer can [adhere to all these requirements] and still fail to meet the standards of a true profession, standards calling for fearless advocacy within established canons of service.

Introduction

Surveys tell us that in terms of ethics and honesty only building contractors, politicians and car sales-people have lower ratings than lawyers. In a study done in the United States funeral directors rated more highly. The fact is that lawyers have been 'on the nose' for a long time now. Part of this can be explained by the fact that the client sees the lawyer as the 'means to justice' and so if they lose a case - be it criminal or civil - the lawyer and 'the system' are easy targets of blame.

It is also the case that the lawyer has divided loyalties - owing a duty to the court while at the same time owing a duty to the client. On occasions, these duties will be in conflict. In these cases, the lawyer is obliged to fulfil his or her obligations to the court. This is not generally understood by clients, or by some lawyers who carry the notion of the duty to the client too far and engage in practices that are unethical and that go to defeat the interests of justice. Making an allegation of fraud in circumstances where there is no evidence to support the claim is an example. Other examples include deliberately delaying proceedings, perhaps in order to force a settlement from the opposing client who is concerned about increasing costs; or issuing writs without their being any proper legal or factual foundation.

This is where legal ethics comes in. A commitment to legal ethics involves a commitment to the introduction of Codes of Ethics or Standards of Professional Practice. An example is the standards reflected in the International Bar Association General Principles of Ethics. However not all jurisdictions have Professional Codes and not all of those that do give sufficient attention to their enforcement. In any case, the lawyer who acts in accordance with a professional code of ethics may still be engaging in unethical practice.

So why is ethics important to the practice of law?

First because lawyers are integral to the working-out of the law and the Rule of Law itself is founded on principles of justice, fairness and equity. If lawyers do not adhere and promote these ethical principles then the law will fall into disrepute and people will resort to alternative means of resolving conflict. The Rule of Law will fail with a rise of public discontent.

Second, lawyers are professionals. This concept conveys the notion that issues of ethical responsibility and duty are an inherent part of the legal profession. It has been said that a profession's most valuable asset is its collective reputation and the confidence which that inspires. The legal profession especially must have the confidence of the community. Justice Kirby of the Australian High Court once noted:

The challenge before the legal profession....is to resolve the basic paradoxes which it faces....To reorganise itself in such a way as to provide more effective, real and affordable access to legal advice and representation by ordinary citizens. To preserve and where necessary, to defend the best of the old rules requiring honesty, fidelity loyalty, diligence, competence and dispassion in the service of clients, above mere self-interest and specifically above commercial self-advantage.

Third, because lawyers are admitted as officers of the court and therefore have an obligation to serve the court and the administration of justice.

And finally because lawyers are a privileged class for only lawyers can, for reward, take on the causes of others and bring them before the courts.

The application of ethical principles to the legal profession

There are a number of applications of ethical responsibilities so far as the practice of law is concerned. It is common to divide these ethical obligations into duties owed to the client and duties owed to the court. It should be noted that a breach of these ethical obligations may lead to civil proceedings by the client, for example an action for breach of confidence or an action for negligence; while at the same time may be grounds for disciplinary proceedings under the relevant Legal Practitioners legislation.

Conflicts of interest

It is well settled that a solicitor has a fiduciary duty to his or her client. That duty carries with it two presently relevant responsibilities. The first is the obligation to avoid any conflict between his duty to his client and his own interests - he must not make a profit or secure a benefit, at the expense of his client's expense. The second arises when he endeavours to serve two masters and requires....full disclosure to both.

Conflicts of interest have given rise to a number of legal and disciplinary actions. It is an area that is commonly identified by lawyers as a problem in legal practice. Conflicts of interest are not all that easy to resolve because some interests will require that the lawyer not act for the person while other conflicts may still allow fort he lawyer to act for both parties.

It is also an area that requires the balancing of two public interests; namely the interest in clients having full confidence in their lawyers, including the protecting of their confidences, and on the other hand, the interest in the freedom of a lawyer to take instructions and for the client to be represented by the lawyer of his or her choice.

The difficult issue is this: Which conflicts, if not resolved, give rise to a breach of professional ethics and which do not?

There are four broad areas of potential conflict. The first relates to those cases where the lawyer acts for both parties.

Acting for both parties

It may be that a solicitor who tries to act for both parties puts himself in a position that he must be liable to one or the other whatever he does..... [It] would be his fault for mixing himself with the transaction in which he has two entirely inconsistent interests and solicitors who try to act for both vendors and purchasers must appreciate that they run a very serious risk of liability to one or the other owing to the duties and obligations which such curious relation puts upon them.

At the heart of this issue is the fact that the lawyer owes a fiduciary duty to respect the confidences of clients and at the same time to do his or her best for the client. If you have information from one client that is prejudicial to the interests of the other client how can you do your duty to each?

In Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 at 393 Davies, Sheppard and Gummow JJ put the matter bluntly: