• Breadcrumb navigation uses Javascript

---

The lawyer's duty to the community

by Simon Longstaff

Introduction

Let me begin by saying that I consider Frank Riley's paper to be an important contribution to debate about the ethics of the legal profession. One significant aspect of Mr Riley's paper is the way in which he reminds us of the profession's long tradition of concern about such matters. His reminder is important because much of the current debate within the profession is conducted as if the problems faced are entirely novel in construction. This may be evidence of a general ignorance of the history of thinking in this area, or it may be one result of a conscious decision to ignore forms of argument that lead to conclusions that are no longer fashionable.

It is my observation that a positivist strain is dominant in the culture of deliberation within and about the legal profession. In my experience, the majority of practitioners act as if ethical issues are best decided by reference to the law. A separate ethical dimension (beyond the law) is either considered theoretically inconceivable or beyond serious contemplation. Similarly, the terms of debate are often conducted as if legal reasoning offered the only legitimate way of thinking about issues of principle.

It could be objected that the above account is a crude caricature of the terms of debate. A good number of exceptions could be cited. For example, Frank Riley's own work is a splendid example of broader thinking. And so is that of many members of the judiciary. While accepting the evidence of exceptional contributions from individuals, one still encounters evidence of a distrubing narrowness of perspective. For example, I have sat on committees dominated by lawyers in which a member of the legal profession has expressed grave concern that an international body has included the word 'justice' in its model code of ethics.

The Council of the Law Society of New South Wales has explicitly rejected the notion that solicitors have an ethical obligation to decide matters according to a well informed conscience, and so on. Mr Riley's paper opens the debate in a way that reminds lawyers (and others) of a wider frontier that might be explored.

Frank Riley includes reference, in his paper, to the lawyer's duty to the community. In recent years, detailed consideration of this duty has been conspicuous by its absence. Many perceive a clear tension between the duty to the community (which most professions explicitly recognise) and the lawyer's duty to serve the client faithfully (within the limits of the law). It may be that the tension has, for the moment, been resolved by recourse to the argument that the duty to the community is fully discharged by faithfully observing the duty to the client and the court.

It is this position that I examine more closely through this paper. This means that there is much in Frank Riley's paper about which I make no comment. However, it is hoped that the following argument at least indicates the points where I would agree with Frank and/or what I might say by way of disagreement with either him or those whom he quotes.

The following discussion offers the 'bones' of an argument about the relationship between lawyers and the community. It lays the ground for a more detailed exploration of the issue at some later date. As with any skeleton, some parts need to be stronger than others. With this in mind, I have been selective when choosing points to explore in greater detail. To extend the analogy, although a skeleton is a rigid structure, its form is such that it 'anticipates' and 'accommodates' the softer tissue.

I mention this because a complete argument about the relationship between lawyers and the community will require that proper weight be given to a range of factors including popular intuition and feeling about the role of the legal profession per se. Such factors need to be tested in the crucible of reason. Indeed, they often fire proper consideration. It would therefore be a mistake (a frequently made mistake!) to assume that only the products of cold calculative rationality are to be considered relevant if a more complete discussion is to be developed.

I wish to suggest that the question about the relationship between lawyers and the community has been raised at a time, the significance of which has not been fully appreciated. According to one aspect, the current discussion can be seen as the product of a concern to protect the legal profession from the attacks and proposed programmes of its critics. However, even if there is some truth to the claim that lawyers are predominantly motivated by self-interest, its articulation should not be allowed to obscure the apprehension of matters of greater moment.

It is suggested that the real significance of the debate is best viewed in light of the contention that the interaction between the community and the legal profession provides an indication of the health of society itself. The worst case arises when members of the community generally feel that lawyers can no longer be trusted to promote the common good. Put simply we might ask; if society can no longer trust those best acquainted with the demands of justice, then who can be trusted? And if there is no trust, then to what degree can there be said to be a community at all? Rather, it would be truer to say that there is a bare and contingent association of individuals - each armed against the potential predations of the other.

These opening comments are offered at one of those rare times when popular cynicism about social institutions is near its zenith. There has probably never been a period in history without one or two institutions being the target of public criticism. But surely it is unusual to find nearly all of society's institutions rocking in unison, the vibration of each resonating with the others as their foundations crumble. What today is the standing of lawyers, politicians, doctors, accountants, the clergy, parents, bankers, police, and those in industry and commerce? It is against this background that the legal profession needs to make a decision about its relationship to the community. It is a time for serious and sober assessment.

One of the difficulties facing the legal profession is that the consensus about what it means to be a profession has been eroded to a considerable degree. And even where some residual understanding remains, there are those who maintain that the obligations of professional status are too onerous to sustain. It is now said quite openly that to practice law is to run "a business in the law". Thus, the argument is conceded to those who would have lawyers define themselves exhaustively as service providers operating in and according to the laws of the market-place.

Those who wish to oppose this trend mount sophisticated political strategies and engage the services of lobbyists and PR consultants. There is much talk of the ‘public interest’. But to many, the words sound hollow and self-serving. Why should this be so? Why should the standing of lawyers continue to fall?

One possible reason is that lawyers generally don't believe their own rhetoric - and thus, fail to convince. Favourite statements of principle are rehearsed and aired by people who juggle the husks of traditional incantations. Empty of the substance of understanding, the formulae are whisked away by the winds of change.

Lying at the heart of the problem is the issue of the relationship between the lawyer and the community. And it is to this issue that I now turn.

back to top

Associations, occupational groups and professions

The legal profession does not have a right to exist. It is not the product of a law of nature. Nor is its existence a curious metaphysical fact that one must necessarily take into account when contemplating the cosmos. Rather, the legal profession is a social artefact.

There could be thousands of people with a superb knowledge and understanding of the Law and still be no profession as such. Individual lawyers might attract clients willing to recognise and pay for their learning and skill, but this would not make for a profession. Indeed, for there to be a profession at all it would first be necessary for people to come together in order to form some sort of voluntary association. The trouble is that not all associations are allowed to survive, let alone flourish. For longevity, one or more of the following conditions need to apply (the list is indicative and not exhaustive):

Internal conditions

1. There continues to be a raison d'etre for maintaining the association,
2. The membership of the association remains committed to its preservation,
3. There is a decision-making process capable of resolving and managing internal disagreements, of charting new directions and so on.

External conditions

1. The new association is relatively insignificant and therefore escapes attention,
2. The new association is conceived by society as an expression of itself,
3. The new association is perceived to offer no threat to society,
4. The new association is believed to offer positive benefits to society,
5. The new association is under the protection of some power sufficient to shield it from attack,
6. The new association is sufficiently powerful to ward off any attempt to curb it.

As noted before, the conditions outlined above are not mutually exclusive. Indeed, it is quite possible that a fledgling association will pass through a number of phases in which its status changes. One imagines that a history of the legal profession would reveal just such a progression. But this is beside the point. The chief fact to bear in mind is that the existence of an association is a contingency and not a necessity. A sufficiently powerful force can obliterate it at any time. Alternatively, it can destroy itself through implosion, collapsing when internal supports have decayed. The facade may stand awhile, but it too will eventually fall.

Of the external conditions, except in the application of conditions five and six, the association will depend on the good-will (or indifference) of the host society. One can imagine societies in which a powerful protector might be minded to guard the interests of an association. And it is possible to think of groups having sufficient power to protect themselves. However, all of this is quite academic when it comes to understanding the place of associations in a modern democracy such as we find in Australia today.

Given the sovereignty of the people, the community has the power to dissolve associations as and when it may desire. Constitutions and Bills of Rights offer only limited protection as they may be amended according to the popular will. Of course, it could be argued that the selective abolition of certain associations would be ‘undemocratic’.

This may be true. However, it is a curious feature of democracies that they enjoy the capacity to act undemocratically. The only penalty they might suffer is the sting of criticism from those who are concerned to promote authentic democratic consistency. The charge of bad-faith might stick. But short of some external power imposing sanctions, there would be little to prevent such a course of action being followed.

back to top

The social 'compact'

While a society might be expected to tolerate all manner of associations as a proper expression of a commitment to the principles of liberty, it is a little more difficult to see why it should allow any group, defined by a common occupation, to enjoy privileges not available to other occupational groups.

A moment's reflection will lead one to conclude that a society founded on the idea of the formal equality of all can accept only one reason for positively discriminating in favour of one group over another. This is that to do so must promote the interests of the community as a whole.

For example, it is accepted by most people that the community would suffer if I had the right to perform open-heart surgery on my kitchen table. Instead, the right to perform such operations is restricted to those properly qualified and registered as medical practitioners. Similarly, it has been concluded that society would suffer if each individual was permitted to take the law into his or her own hands. Civil peace is thought to be enhanced if a properly accountable State is able to exercise a monopoly in the administration of force. Thus, powers of arrest are limited. An impartial cadre of judges supervises the trial of alleged offenders and the State (on behalf of the community) punishes the guilty.

None of this is controversial. At the heart of the position described above is the idea of a social compact made between society and particular occupational groups and associations. Certain privileges are accorded in return for the provision of social goods that would not otherwise be available. It is within this general scheme of arrangement that an understanding of the role of the professions in Australia must be located.

back to top

The idea of a profession

There is, however, another dimension to the discussion of professions. Rather than flowing from a consideration of the external environment in which the professions are sustained, this other dimension relates to what have been held to be the internal standards of a profession per se. One can observe that all manner of occupational groups can make bargains with society in return for privileges or other social goods and yet still not be considered to be professions.

For example, the police have special powers not normally conferred on ordinary citizens. Yet, to be a police officer is not to be a member of a profession. So where does the distinction lie?

One particularly influential definition of a profession was offered by Roscoe Pound. It goes as follows (i):

The term refers to a group ... pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means to livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.

The point should be made that to act "in the spirit of public service" at least implies that one will seek to promote or preserve the public interest. A person who claimed to move in a spirit of public service while harming the public interest could be open to the charge of insincerity or of failing to comprehend what his or her professional commitments really amounted to in practice.

In August of this year, the Australian Council of Professions issued a discussion paper, Professional Services, Responsibility and Competition Policy (ii). Significantly, a press release about this paper was issued under the title, In The Public Interest. Both the paper and the release sought to distinguish a profession from "more commercially minded occupational associations". As opposed to others, professional practitioners:

... must at all times place the responsibility for the welfare, health and safety of the community before their responsibility to the profession, to sectional or private interests, or to other members of the profession.

If the idea of a profession is to have any significance, then it must hinge on this notion that professionals make a bargain with society in which they promise conscientiously to serve the public interest - even if to do so may, at times, be at their own expense. In return, society allocates certain privileges. These might include one or more of the following:

• the right to engage in self regulation
• the exclusive right to perform particular functions
• special status

At all times it should be remembered that what society gives, it can take away. It only accords privileges on the condition that members of the profession work to improve the common good. Having said this, there should be no doubt that all citizens are served by the existence of independent professions that are free to interpret the common good as being something other than that which a government of the day decrees. Once again, it should be noted that a capacity for a profession to fulfil this role depends on the extent to which the broader community trusts its judgement and motives.

Deciding to take up the full and proper responsibilities of a professional career is akin to the old idea of finding a vocation. In most cases, the actual rewards on offer hardly seem to cancel out the sacrifice that is made when the narrower pursuit of self-interest (common in the market) is eschewed in favour of the public interest. Instead of relying on the operation of the ‘invisible hand’, the professional must choose - and choose well! The burden of choice is sometimes felt to be intolerable. This may explain the move towards a world in which lawyers do nothing more than operate "a business in the law".

Perhaps the idea of 'vocation' has become foreign to most of those who make up the contemporary professions. Perhaps the belief in intrinsic goods has faded. But even if one is motivated by a spirit of public service, how is one to determine what may be in the public interest? One answer, from as far back as the ancient Greeks, is to try to identify certain core goods. Some of these immediately come to mind. For example, a good society is likely to be one in which people are treated with justice, in which good health is commonplace, in which the environment is rich, rewarding and safe.

The introduction to Ethics & the Legal Profession, edited by Michael Davis and Frederick Elliston (iii) builds on this idea:

One of the tasks of the professional is to seek the social good. It follows from this that one cannot be a professional unless one has some sense of what the social good is. Accordingly, one's very status as a professional requires that one possess this moral truth. But it requires more, for each profession seeks the social good in a different form, according to its particular expertise: doctors seek it in the form of health; engineers in the form of safe efficient buildings; and lawyers seek it in the form of justice. Each profession must seek its own form of the social good. Without such knowledge professionals cannot perform their social roles.

As noted above, an old idea is at work here. It suggests that professionals might need to develop a particular appreciation and understanding of some defining end, such as justice. It is as much for this and the disinterested pursuit of these ends that the community looks to the professions for assistance.

And so we come to the crux of the matter before us. It is at this juncture that the difficulty in the debate begins to emerge for some maintain that justice is best secured when lawyers construe their duties to be first and foremost to the Law (and its institutional expression in the Courts) and then exclusively to the client. Such an account may appear to leave little room for the public good.

back to top

A conflict of duties?

Two conceptions of liberty and the 'thin' conception of duty to the community

Those in favour of serving the clients' interests above all others (what I will call the 'thin' view of professional duty) seek to reconcile the apparent conflict of duties by arguing that the common good is best served if and only if each and every person can be assured of faithful legal service from a qualified and competent practitioner. Part of the force of this argument flows from its proponents' proper concern to ensure that the liberty of individual citizens is maximised under the law. Liberty is here conceived as freedom from constraint. Under this conception, a person is free to do all things except those proscribed (some lawyers argue that only illegal acts be proscribed).

Most people are bound to support the idea that liberty be protected. And to the extent that the legal profession plays a role in the defence of liberty, so it deserves to be congratulated. Yet, perhaps one should be mindful of the fact that many believe that there may be too narrow a concept of liberty at work in the strict 'argument-from-liberty' that has been outlined above.

Rather than liberty being seen as freedom from restraint it may be further articulated as freedom to pursue one's projects in life, providing only that this is done without causing harm to others. This alternative conception may suggest that a commitment to the principle of liberty entails a further commitment to assist others or, at least remove obstacles from their path, as they go about the business of their lives.

Once again it can be argued that looking to secure the client's interests through the provision of independent legal advice may be consistent with the demands of liberty. If a person is going to be free to do as he or she pleases (within the strict constraints of the law) then legal advice may be indispensable.

Thus, it is argued that one must conclude that both conceptions of liberty tend to support the contention that, with one exception, the lawyer's duty to the client is superior to that owed to the community. The one exception is the lawyer's duty to the courts and to the Law where these duties are understood to be expressions of the community's will. Accordingly it is argued that to discharge one's duties to the courts and the Law is completely to discharge one's professional duty to the community. That is, there is no residual duty to be considered.

Thus, supporters of this view of liberty suggest that its maintenance is enhanced by the existence of an independent legal profession that is capable of ensuring that the use of power (by individuals, organisations and governments) is limited by the principled application of the law. Similarly, given that citizens are entitled to know their actual obligations under the law, it is argued that lawyers be able to advise as to what the law specifically requires.

Finally, it is argued that the principle of liberty requires that there be a recognised right of citizens to test the law both in action and, ultimately, in the courts. This may, at times, require people to act in ways that others would regard as bordering on the illegal (and therefore proscribed). But it is argued that because there is room for legitimate and reasonable interpretation of the law, there must also be a concomitant degree of tolerance.

Given that, for the most part, our law is drafted to proscribe certain specified deeds, this leaves a considerable range of activities that are legal but which may, nonetheless, be harmful to individuals and/or the community. Lawyers are therefore left to decide whether or not they have a professional obligation to attempt to prevent any of the avoidable (but legal) harms that their clients might visit upon innocent others.

The 'thick' conception of duty

Those who claim that the lawyer owes a duty to the community that goes beyond that owed to the courts and the Law might be said to hold a 'thick' conception of the lawyer's professional duty to the community. Such people argue that it is wrong (although possibly legal) for lawyers to assist clients to perform acts that can reasonably be foreseen to involve harm to others.

What is to be said in support of this 'thick' conception of duty? The argument from this side might begin by suggesting that although liberty is an important value, it is not the only value. Indeed, the principle of liberty needs to be weighed in the balance with others such as justice and benevolence. But beyond this point, it is argued that a commitment to liberty (in either conception) requires that one recognise that there are internal limits to its application in the case of particular individuals.

The obvious point can be made that liberty for all entails that each individual is constrained to respect the liberty of others. To act in ways that restrict the liberty of others is not just to do harm, it is also to act in a way that is not consistent with a proper understanding of the principle to which one has notionally given allegiance. Of course a misanthrope could claim that he does not recognise the rights of others to enjoy liberty. But then why should others respect such a person's claims?

In practice, the pursuit of liberty by an individual depends on his recognising that others have a reciprocal right to enjoy their liberty and that he has a corresponding duty to refrain from acting in ways that impose arbitrary limits on others. The Law is one expression of social agreement about the limits of liberty that individuals may exercise in their dealings with other members of the community. But is the Law the only limit?

It is at this point that the distinction between law and ethics becomes crucial. Most people have an intuitive feel for the distinction. However, it can be pointed up by an example. A person may be driving by the scene of an accident. Her passenger is a doctor who asks to be let down so that she can render assistance. There is a vacant space by the pavement where the injured person lies. But this part of the street is clearly marked by signs saying "NO STOPPING". In short, to stop and let the passenger down would be to break the law. But to not stop would be wrong!

The dictates of ethics and the law can overlap, but the fact that they do is a matter of contingency rather than necessity. Thus, the proponents of a 'thick' conception of professional duty argue that to the extent a profession argues in favour of its members being able to support harmful activity, so it gives evidence of a failure to appreciate what it means, in practice, to act in a spirit of public service.

The 'thin' retort to such a charge is that it is important to weigh such matters in the balance. Although some individuals may be harmed by the actions of the clients of lawyers, the aggregate of this harm is less than would otherwise exist if lawyers failed diligently to serve the interests of their clients. In other words, the good of the few is to be sacrificed for the good of the majority (or the good of all).

Some of the arguments explored

Here one encounters the need to recognise that just as different conceptions of liberty may be at work, so there may be different conceptions of justice. Indeed, one may contrast the view of those who see justice as involving a fair process with those that think justice involves a fair outcome. Those offering particular allegiance to the client may tend to favour the former option, with their opponents favouring the latter.

The crux of the matter lies at the point where one is required to take a position on the question of whether or not it is ever just (as opposed to necessary) to sacrifice an innocent person for the sake of a group, system or idea. For example, should the fortunes of creditors be destroyed because of the capacity of a debtor to evade responsibility through the manipulation of the various bankruptcy laws?

As we have seen, some lawyers would argue that they have a duty to the client to carry out his or her instructions to the full extent allowed by the law. If the law allows for Part X meetings to be held in obscure locations after being advertised in obscure publications, then so be it. It's not for the lawyer to substitute his or her judgement for that of the client. Furthermore, if legislation allows for this possibility, then it is up to the legislature to remedy the defect.

There are two principal objections to this 'thin' position. Firstly, it seems to suggest that the lawyer is really nothing more than the proverbial ‘gun for hire’. Providing only that it is legal, the lawyer will do anything that the client wants. This brings to mind Macaulay's wry observation that a lawyer would:

with a wig on his head and a band around his neck do for a guinea what, without those appendages, he would think it wicked to do for an empire(iv).

This is close to the heart of community concern; namely, that for a sufficient fee the lawyer will 'justify' and facilitate unethical behaviour. The lawyer is seen to be reduced to the role of a mere cipher, albeit a brilliant creative cipher, who has surrendered all claims to exercise professional judgement on matters affecting the client's interests. In such circumstances, lawyers are liable to conflate the client's ‘wants’ with the client's ‘interests’. And this, it is argued, is ultimately to fail to serve the client's interests at all.

Wants and needs

The point may be made by way of an analogy drawn from medicine. A diabetic patient may tell the doctor that she wants a large block of chocolate without the doctor having any doubt that the interests of the patient preclude her request being met. In such a circumstance a responsible doctor would not hesitate to advise against eating the chocolate. What is more, the doctor would probably be considered negligent if she helped the patient to satisfy her want.

As will be seen below, this distinction is of fundamental importance when resolving the debate between supporters of the 'thin' and 'thick' conceptions of the duty to the community.

Lawyers may need to become better acquainted with the distinction between wants and interests. For example, there may be legal options that a client may wish to pursue although the lawyer's best advice is that to do so would not be in the interests of the client, as construed in all good conscience.

How then do lawyers justify pursuing a course of action that they reasonably believe to be harmful to the client? Some say that it is up to the client to decide and that every person is entitled to legal representation. But it's important to notice that there are two propositions here. The first asserts that people must be free to judge matters for themselves. Even if one accepts this principle (as I am inclined to do) it does not follow that every person is entitled to the service of a lawyer in the pursuit of a goal that is legal but foreseeably harmful. Such a principle needs to be established independently.

Can 'thin' claims about self regulation be taken seriously?

The second objection to the 'thin' claim that lawyers should suspend their judgement about the ethical dimension of the behaviour of clients is that it undermines any serious claim that lawyers ought to enjoy the privilege of self-regulation. If it is the Law that establishes the absolute limit of conceptions of right and wrong, then it is parliament and the courts that ultimately determine the range of behaviour to be considered 'ethical' professional behaviour.

Of course the legislature may delegate some of its functions to other bodies such as the Law Society. But what then of the vaunted independence of the legal profession? If it is true that lawyers should not make an assessment of the ethics of client behaviour, how can they then exercise judgement in the case of colleagues (who deserve to exercise liberty to the full extent allowed by the law)? Application of the 'thin' conception to the judgement of professional peers would have us conclude that, providing the behaviour of lawyers is not illegal, then it is not wrong - no matter how 'sharp' it may happen to be.

To summarise, lawyers who suspend their judgement and just follow the law, leave all matters of conscience to the parliament. But then they are nothing more than a clever puppet. Clients pull the strings and the government writes the lines. Such a situation makes a mockery of the notion of self-regulation. But worse than this it throws open to question whether or not lawyers who hold to the 'thin' line can seriously claim to have a practical and authentic relationship to justice.

Why the 'thin' argument fails

But it is the point about the clear distinction between the scope of ‘ethics’ and of ‘law’ that I would argue to be of greatest damage to the case mounted by those who would support the 'thin' conception of professional responsibility to the community. It is clearly in the public interest that the incidence of ethically significant harms and wrongs be reduced to the greatest extent possible. Indeed, one could argue that an essential part of what it means to promote the public interest is to achieve such a reduction.

However, we have seen that it is only a contingent (rather than necessary) fact that the Law will be such that what it either proscribes or prescribes is coincidental with the public interest. That is, the Law can be unambiguously unjust - as in the case of the legal foundations for slavery. This means that lawyers who are seriously committed to the idea of being members of a profession (rather than, say, just an industry) do not have available to them the 'thin' conception. This is because allegiance to such a conception may commit practitioners to acting in ways that will harm the public interest. And to act in ways that might be reasonably foreseen to be against the public interest is, as we have seen, inconsistent with the defining characteristic of a profession.

back to top

Some further distinctions

But there is, perhaps, a further distinction that needs to be borne in mind. One can distinguish between that part of a lawyer's work which relates to the provision of advice about what the law says or means, and that which sees the lawyer actively assisting a client to secure his or her wants. Everybody may be entitled to have a clear understanding of the law without it being the case that the legal profession should facilitate everything that is strictly legal.

This returns us to the nub of the matter. At first glance the arguments presented so far may seem to imply that some persons be denied legal representation. Once again, there is a need to explore the matter with the aid of further distinctions.

Is every person entitled to representation in every case?

Representation can be an element in either a strategy of defence or offence. Without wanting to offer a firm position, it is interesting to contemplate the possibility that the force of the distinction may lie in the observation that there may not be an absolute symmetry in the rights of clients to representation.

For example, it might be argued that, in common law jurisdictions, the citizen has an absolute right to representation when this is needed to offer a defence against allegations of criminal behaviour. Such a right could be justified on two related grounds. Firstly, in order to protect the individual's liberty from infringement by the State a person might be reasonably said to have a right to representation by a person who is especially skilled in offering a defence in the courts. Such a right can be understood as an expression of the 'bargain' in which citizens transfer personal authority to seek justice into the hands of the State. Secondly, the right to representation may be understood as an expression of the collective good reserved by citizens who may seek to check the arbitrary use and abuse of power by the State.

But is there an identical right to representation when seeking to use the Law to engage in unconscionable (but strictly legal) behaviour? Should a lawyer use different criteria when considering how to respond to instructions from defendants and plaintiffs respectively?

As noted above, I have not worked through the issues with thoroughness enough to enable me to go beyond posing these few questions for consideration. Intuition suggests that every person should have a right to be represented when dealing with the State. It will sometimes be that the lawyer's skill is all that stands between a person and individuals and institutions that have all of the massive power of the State at their disposal.

However, intuition (and the emerging argument of this paper) suggests that although every person is entitled to receive independent advice about what the Law requires, it is not the case that every project is to be aided by the services of a lawyer.

This is not to suggest that the lawyer substitute personal judgement for that of the client. It is still to be left to the client to decide whether or not to proceed with a particular course of action. However, it is to suggest that there will be cases when the client will be left to proceed alone and without the benefit of qualified legal representation. In some cases this may mean that a client is unable to proceed.

However, no person is entitled to assume that others will co-operate with his projects. Financial institutions, governments, individuals are constantly assessing proposals and deciding whether or not to co-operate. In many cases, a decision against a proposal is enough to render it impractical. This is not to say that such an outcome is intended. Rather, the independent application of selection criteria may inadvertently lead to this result. The same thing could apply where a lawyer determines that it would be against the public interest if her or she were to facilitate a client's wishes.

The need for a 'level playing field'

All of this may sound quite naive. Surely, it will be argued, the pressures of the legal services market will be such that a client seeking legal assistance in the facilitation of a project that is legal (but against the public interest) will 'shop around' until a lawyer is found to do the job. In a similar vein, it might be argued that when engaged in a legal dispute it is essential that the lawyer be able to fight fire with fire. It could be argued convincingly that there's very little point in following polite conventions and fair procedures if this means that the client's interests will be harmed.

The points are well made. However, an immediate response comes to mind. Surely it is the role of the profession to ensure that the means by which law is practiced should be subject to ethical standards applied across the board. This may mean that the profession will have to set standards of 'fair play' that go beyond what the law requires in terms of due process.

Such a proposal may seem to be at odds with current thinking about the demands arising from the adversarial nature of our legal system. Specific discussion of the relative merits of the adversarial system is a separate topic for debate. Yet it should be observed that an acceptance of the broad features of the adversarial system does not entail acceptance of the proposition that in the conduct of a matter 'anything goes'.

While it is important that lawyers strive to ensure that their clients are successful in their suits, this does not mean that a win should be secured at all costs. This is to eschew the argument that the end always justifies the means. Even a just cause can be prosecuted by means that are themselves unjust. One needs to ask whether or not the legal profession takes trouble enough to ensure that minimum standards of fairness apply in the conduct of matters. In summary, it is suggested that the profession take seriously its responsibility to ensure that no lawyer acts in a way that is, in itself, unjust.

back to top

Some general principles

To what conclusions do the arguments outlined above lead? The following principles seem to have emerged:

• Every person is entitled to independent advice about what the law is thought to be, mean and require
• Lawyers ought not to suspend their judgement about the ethical status of their client's proposals,
• Lawyers should be prepared to offer independent, professional advice based on a proper discernment of the potential difference between a client's wants and needs or interests
• While respecting a client's right to choose how to proceed, no lawyer is to assist a client to pursue a course of action which, in all conscience, the lawyer believes to be against the public interest. In this regard, illegal acts are prima facie against the public interest.
• In the conduct of every matter, a lawyer is to proceed according to the profession's accepted principles of fair dealing
• The profession, as a whole, is to ensure that self regulation ensures that only those who deal fairly continue to practise law

back to top

Conclusion

It has been argued that the defining feature of a profession is a commitment to promote and preserve the public good. It has been further argued that this commitment is only honoured by those members of a profession who adopt a 'thick' conception of the professional obligation owed to a community. The need to honour such a conception at all flows from the nature of the ideal social compact between society and the profession. It has been argued that the interests of society are advanced by the existence of a genuine legal profession rather than a legal industry in which lawyers operate businesses in the Law.

The current debate about competition and the legal profession sees bodies such as the Trade Practices Commission advancing arguments that are based on the assumption that the legal profession is just another service industry. To the extent that the community treats the legal profession as just another industry subject to market forces so it erodes the foundation for any expectation that lawyers should recognise a special duty to promote the public interest. Instead, it would be perfectly reasonable for lawyers to pursue self interest with all the vigour at their disposal, only limited by the constraints of the Law itself. I believe that society would suffer if such a state of affairs should come to pass.

Unfortunately, many of those who subscribe to a 'thin' view of professional responsibility to the community give evidence of an internal professional dynamic that reinforces external perceptions that lawyers are members of an association that is a profession in name alone.

This is not just a matter of perception. As has been seen above, the 'thin' view is inconsistent with a genuine commitment to public service. This is because lawyers who hold to this view allow for the possibility that they may assist clients to pursue objectives that are lawful but harmful and by means that are technically correct but unfair. It may be that the 'thin' view will triumph.

If this is so, then lawyers will need to understand that by their choice they will have further eroded any claim to enjoy justified professional status. In such circumstances, the law may still be referred to as a profession. However, the ascription will be meaningless as lawyers will have joined the ranks of service providers subject to nothing but the law and the dictates of supply and demand.

If lawyers wish to remain part of a true profession, then their response to the community should be an unambiguous declaration of allegiance to the overriding principle of public service. Fine declarations will then need to be matched by evidence of decisions taken that involve some willing cost to the profession. There are many occasions when the interests of lawyers and the broader community (of which lawyers are a part) coincide. However, there is a suspicion that when a choice is to be made, then in practice the interests of the profession override all others.

In the current social environment there are many who would argue that a genuine commitment to ethics is an unrealisable ideal. Many think that sound ethical principles are fine in theory but that they can't really be applied in practice. To try to do so is to be nostalgic. They say that to promote virtue is to be old fashioned, to hark back to ideas only useful in a different era. They ask us to be 'realistic' and to embrace the 'modern' way of doing things.

This plea is often nothing more than an ill disguised plea to allow for the survival of the fittest. Perhaps such people are right. Perhaps a dog-eat-dog world will be the most efficient. And perhaps efficiency is the only value that we need to embrace in the search for a worthwhile life. Or perhaps efficiency is only one of a number of important values that we must learn to juggle across an unpredictable landscape.

Those members of the legal profession who are serious about meeting their ethical obligations must face up to this challenge. After all, what if their critics in the market place are right? What if the prime (and exclusive) objective really is to 'run a business in the law' ? One can only reply that an authentic commitment to professional ethics may require lawyers to live a life that makes only partial sense in a world dominated by an orientation to markets.

The full sense of such a commitment might only be appreciated when viewed against a background of community. That is, the relevance of professions probably depends on the prior existence of a society and not just an enterprise association.

Most people have a fairly good feel for what it means to live in a ‘society’. But what about an ‘enterprise association’? John Casey (v) has tried to describe the latter:

We might imagine a city founded purely as a trading post. The laws of the city will reflect its original purpose, and have to be understood in relation to this purpose. Contracts will be vigorously enforced however unreasonable or unjust, because it is of the highest importance to retain the confidence of those with whom the city trades. Indeed, the notion of a contract being 'unjust' will have no meaning. All education will be subordinated to the need to produce an ‘enterprise culture’, and no subject will be studied as an end in itself. The rulers of the city will regard themselves essentially as the managers of the enterprise. Their tasks will be to maximise wealth and promote trade.

Is this so very far away from what we now experience? Some may say that this is an accurate and even attractive picture of the type of world in which we live. But does such a view of our relationships miss something of vital importance? For example, do we exist simply to "facilitate the exchange of commodities" or is there something more?

Is there, for example, a need to value friendships, to realise that other people can make a claim on us? Is living in a society only possible when we recognise that each person is bound to others within a network of formal and informal relationships?

The challenge facing us today is to make a choice about which alternative we want. Do we want a society of citizens in which something like a self-regulating legal profession makes sense? Or do we want the enterprise association in which each of us is little more than a purveyor or consumer of commodities? The latter consigns us to a place where the ideals of justice and community seem strange and alien - just a shadow of a once remembered past?

I believe that a number of the tensions outlined above can be resolved if only the profession comes to recognise and accept the 'thick' conception of professional responsibility to the community - and all that it entails. This is to draw back towards an older view of professional responsibility. It requires a type of peer review that may have been more easily applied in days when the number of practitioners was much smaller.

The challenge faced by the profession is to instil, in difficult times, the sense of a corporate responsibility based on a genuine belief that the practice of the Law is a noble calling and not just a job.

discuss this article

---