Virtue, Honour and Ethics: Problems with a Deontological Perspective on Ethical Responsibilities of Lawyers

Paper prepared for the Western Australian Bar Association Spring CPD[1]

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Justice Craig Colvin20 October 2020

Thank you for the opportunity to speak about the important subject of ethical legal practice. Discussion of legal ethics is often framed in terms of professional duties to be performed and ethical rules to be observed. Together those two aspects are seen to mark out the boundaries of appropriate conduct for lawyers. Adherence to established and published standards of behaviour is advocated as an assurance to the public, to clients, to the courts and the justice system more broadly that lawyers are acting properly.

However, such an approach tends to conceive of legal ethics as episodic. So, when faced with an ethical problem or dilemma, lawyers resort to the rules to find the answer. Then, if it is concluded that the lawyer is fulfilling the stated duties and conforming to the proscriptions on behaviour in the particular circumstances, the lawyer is said to be acting ethically.

Today, I propose to frame the discussion in different terms. I want to suggest that legal ethics should be concerned in a more fundamental way with moral character; those matters that we implicitly recognise when we describe a lawyer as a person of integrity.

Integrity manifests in the motivations, choices and actions that are intrinsic to the way a good lawyer practices. In our everyday conversations and dealings we identify attributes in other lawyers that are to be admired or respected. We might even go so far as to recognise in another lawyer an overall disposition that embodies the qualities of a good lawyer.

Encouragement of those characteristics in lawyers more generally is not greatly facilitated by an approach that focusses on duties and rules. Therefore, I want to suggest that there is merit in adopting a view of legal ethics that encourages particular character traits or virtues amongst lawyers. Although I consider this view may be applied to lawyers generally, given today's audience, I will mostly consider those traits with practice as a member of the independent Bar in mind.

Before I venture any further, I want to say some general things about ethical rules and codes of conduct. Of course, they have their place. They provide a ready reckoner as to conduct that is expected in certain particular circumstances. They reflect a consensus as to what is or is not appropriate in those circumstances. However, when it comes to the regulation of professional conduct, the nature of the responsibilities to be performed means that is not possible to be prescriptive or comprehensive. Therefore, any consideration of the nature and extent of the ethical obligations of lawyers requires the limitations of conduct rules to be recognised.

Problems with conduct rules

First, specific rules are ill-suited to the task of upholding ethical behaviour. Most of the ethical dilemmas that arise in legal practice are contextual. They are nuanced and often occur at the intersections where compliance with one rule contests with compliance with another or where there is no established rule. What is ethically appropriate in one instance may not be appropriate in another very similar instance. Good ethical practice involves identifying the right path in such circumstances where rules will often not assist or will be of only limited assistance.

Secondly, in any profession, ethics properly concern norms of behaviour that are qualitative in character. They serve a role akin to those aspects of the law that regulate behaviour by reference to a generalised standard such as good faith, reasonableness or conscionability. In those areas, the law does not resort to a bright line rule or to seek to enumerate in detail what must be done in any particular case. Instead, it recognises that there is a need for principles by which otherwise lawful behaviour that manifests an unacceptable degree of unfairness or impropriety is not to be countenanced. By such laws conduct is proscribed even though, viewed strictly, the conduct might be justified as an exercise of legitimate rights recognised by the law. Ethical responsibilities are also of that character. It is not the expression of rules that produce conformance with such standards. Rather, their observance requires a fundamental sensibility on the part of lawyers as to what the standard might require in particular, perhaps peculiar, circumstances.

Thirdly, unethical behaviour within the legal profession is sanctioned in order to protect the administration of the law itself. Unlike their clients, lawyers form part of an institution designed to maintain fairness and justice in the social order. They are themselves instruments by which the law operates. A legal system is seriously compromised if its lawyers are not guided by a keen insight into their role and responsibilities in the administration of justice.

Therefore, the way in which lawyers behave is fundamental to the way the law is administered. They give the law its quality in application and administration. Ethical obligations keep lawyers true to this task. It is not enough that they are honest and obey the law or even that they obey the conduct rules. That is because they embody how the law speaks and operates in the everyday life of all members of the community. The law has a different impact if it is administered by people without the requisite ethical character. The fact that lawyers act in the interests of their clients cannot distract them from these aspects of their ethical obligations. These aspects are not easily expressed or captured in a series of rules that state general duties and proscribe particular conduct.

Fourthly, the practice of the law is not a technical discipline like engineering which requires an expert understanding of the tangible. The law is not constrained by physical laws. It is not mechanistic. It is constructed by human minds to regulate human behaviour in all its complexities. For those who practise its administration and development, rules are insufficient guidance. Instead, lawyers need a keen understanding of the human condition and an engagement with the reasons for and rationale behind the law. They need to take on and manifest an understanding of the role of law in society. They need to have a philosophical perspective on what they are doing and how it should be done. Only then will they have the skeletal integrity, the backbone required to undertake the task.

Fifthly, if ethical obligations are seen to be coordinate with the scope of legal rules then considerable political power is passed to those who formulate the rules. The institutions of the law can be radically altered by what is and what is not included in the rules. If ethical obligations are seen to be limited to obedience to the rules then they concentrate the formulation of the professional responsibilities of lawyers in the hands of those who write the rules[2]. Those few can use that power to protect financial interests and alter professional norms. All rules embody ethical choices. If ethical obligations are bounded by the content of the rules then the ethics of those who write the rules become the limit of the ethics of all lawyers.

Finally, conduct rules rarely focus upon motivations, drives and dispositions. They tend to the absolute. They encourage rote compliance of a kind that requires more and more rules. They encourage a form of observance that leads to avoidance of their application or provides a means of justifying behaviour which, had it been conceived of by the rule maker, would likely have been included within the rule's field of proscribed conduct[3]. Instead of promoting reflection on what is proper or right, rules tend to direct the mind towards asking whether there has been compliance with the language in which the rule is expressed rather than consideration of the underlying reason for the rule.

So, for all those reasons, I think the case can be made for an understanding of ethical obligations that rests upon a foundation other than conduct rules. The question then, is where might we look for the nature and content of our ethical obligations as lawyers if not to our conduct rules?

Three perspectives on ethical obligations

Broadly speaking, there are three different ways of looking at normative ethical responsibilities: (a) as virtues; (b) as a duty to act in a particular way; and (c) as requiring actions that produce desirable consequences. You can think of them as the ethics of how to be, the ethics of what to do and the ethics of producing good outcomes. The fancy terms to describe these three broad schools of moral philosophy are virtue ethics, deontological ethics and teleological ethics.

A virtue ethics approach emphasises the importance of moral character. It identifies personal attributes inherent in a person that guides their decisions. For a virtue ethicist, an ethical person acts honestly, not because there is a duty to do so or because it produces less harm or because it is in their personal interest, but because he or she is inherently honest. In contrast, deontological ethics is based upon the worth of particular actions. By rules or a process of situational analysis it identifies the right way to act and recognises an ethical duty to act accordingly. It is concerned with right behaviour. Finally, teleological ethics looks to the outcomes of conduct and seeks to evaluate what will maximize happiness or well-being. It is concerned with the consequences of actions.

Before I deal with a virtue perspective on the professional ethics of being a lawyer, with sincere apologies to the moral philosophers amongst us, I will briefly describe, as best I can, how the other two perspectives might inform an approach to ethics for lawyers.

Deontological ethics, the ethics of what to do as a lawyer

Deontologists focus upon a moral duty to act in a particular way. They formulate general rules or codes of conduct and undertake situational analysis to work out the right way to act in different contexts. They are concerned with identifying right actions and behaviours. However, the ethical propriety of different actions is often contestable. Various authorities may be called upon as the source of the duty to act in a particular way. Actions may be justified as ethical by resort to notions of rationality, natural law, custom and tradition, epic myth or religious belief.

In the case of conduct rules for lawyers, the rational expectations of lawyers conceived as officers of the court acting in the interests of justice might be called upon to justify particular duties and behaviours. If an action is seen to consistent with that understanding of the role of lawyers then it may be thought of as being right or proper.

For deontologists, ethics is about behaviour. They tend towards formulating rules as to appropriate behaviour or at least ways of describing what is ethical by reference to what should be done. In the context of professional ethics, such an approach tends to focus attention on conduct rules, perhaps further supplemented by a social code or system of manners that marks out the boundaries of appropriate behaviour. However, such an approach does not offer a foundational bedrock for the making of ethical legal choices where there are no rules or their content is contestable. Even where there are rules, they invite debate as to a hierarchy of rules when there are conflicting duties or rules about how to act without offering much to guide the choice between them.

Teleological ethics, the ethics of lawyers producing good outcomes

A teleological moral philosophy measures what is ethical by its consequences. The predominant mantra of maximizing shareholder value that guides corporate decision-making is a form of consequentialist moralism. A teleological perspective asks whether particular conduct will produce a good outcome measured according to a particular view of what is good.

Applying such a perspective to the professional ethical obligations of lawyers, you might identify as ethical any conduct that advances the due and proper administration of justice.

However, such an approach may be criticised because it makes the means of achieving a particular end amoral. Also, it assumes the existence of an ethical system by which to measure whether a particular consequence is good or bad. In addition, consequences are often confused or mixed. They may be both direct and indirect. It can be difficult to foresee what all the consequences may be and often they are difficult to evaluate and therefore highly contestable. For example, views on whether it is ethical (a) for a lawyer to act on the basis of a large success fee; (b) to expect junior lawyers to work long hours; (c) to argue a tenuous legal proposition; or (d) to publicly criticise a decision in a case where the lawyer acts for one of the parties, might produce significant arguments as to whether they are good when assessed by reference to their consequences.

Virtue ethics, the ethics of how to be a lawyer

Fundamental to virtue ethics is the recognition that there is a state of being that comes from a well ordered or good life[4]. Virtues are traits that when practised lead to a flourishing existence or good living. They cause people to act out of good motivations and dispositions.

Virtues are deeper than behaviours. A lawyer may decide to be honest because the risk of being found out and struck off is too great. Such a person may be punctilious in their honest behaviour, but they are not honest. To speak of the virtue of honesty is to describe a person who is inherently honest and who will be truthful because that is their character. Such a person does not need to decide to be honest in a particular situation, they simply are because it is in their nature to be honest.

Virtues manifest in morally right behaviour not because the conduct itself is virtuous but because the person is virtuous in character. A virtuous person will be ethical irrespective of rules or consequences.

Virtues may be found or exhibited in exemplars, people who we admire[5]. The admiration we have for exemplars makes them convincing people whose behaviours we want to emulate. Faced with difficulty, we may seek out their wise counsel, not because of their wealth or influence or power, but because their character sets them apart from such things. We recognise them as being guided by principles or traits that make them healthy, free from vice and corruption. They do not draw upon rules or what the consequences might be. Instead they have inculcated a particular manner or trait into the way they think, expect, desire, choose, act and react. Therefore, they will make ethical choices and decisions.

Virtue ethicists are not keen on rules. They consider them to be antithetical to ethical behaviour because they encourage thoughtless obedience or, worse still, facilitate avoidance by focussing on what to do rather than how to be.

Virtue ethics as a basis for regulating the behaviour of lawyers has been criticised on the basis that it is not the role of the lawyer to determine what is ethical. Rather, the lawyer's role is to represent the client and not to impose the lawyer's own ethical perspective on what is proper in any given situation. If the client gives instructions to terminate a lease or to increase the rent for a tenant in difficult circumstances it is not for the lawyer to question the ethics of the client taking that step. Clients' interests, so it is said, should not be at the whim of the lawyer's conscience. This is especially the case, so it is argued, because of the vulnerability of clients to the exercise of expertise by the lawyer as to what the law requires. Lawyers, it is said, should advise as to the law not as to how the client, in good conscience, should act.

However, such criticisms assume, in effect, that a lawyer cannot accept instructions to bring a claim or raise a defence that the lawyer's own ethical character would not allow the lawyer to bring or raise if acting in the lawyer's own interests. It is to take the position that lawyers should impose their own views of the interests of their clients when deciding whether to take on a case. Some indeed do argue for that position. However, it is an argument that begins with a distorted understanding of the role of the lawyer when acting on behalf of a client. The role of the lawyer is instrumental and concerns the way in which the law is administered when a client decides to bring a case or must meet a case brought in the courts against them. The lawyer is part of the means by which justice is administered. Part of that role is not to countenance or participate in unmeritorious claims or defences or in the use of the court for a collateral purpose. Otherwise, it is the clients who decide whether to bring a claim to court and whether to admit, defend or compromise a claim as a responding party. The role of a lawyer concerns the manner in which the claim or defence is advanced. Legal ethics is concerned with the way in which that substantial responsibility is undertaken. It is a responsibility that presupposes the existence of a client with an arguable claim or defence.

Murphy J and I dealt with these distinctions in Dyczynski v Gibson[6]:

…it may be accepted that the performance of the duty to exercise an independent judgment as to the manner in which a retainer is performed is not to be confined by instructions from the client. The client does not instruct counsel as to how to undertake the professional obligations regarding the conduct of a case in court, including by confining the case where considered appropriate. Indeed, a client is not able to provide instructions that require a lawyer to fail to exercise the independent forensic judgment required to perform the obligations we have described. It would be an abuse of process for a client to seek to direct a lawyer to act contrary to those professional obligations and instead to act only at the direction of the client rather than by exercising independent professional judgment. The administration of justice by the courts depends to a considerable degree upon lawyers conforming to their obligation to exercise independent judgement as to all forensic decisions in executing the overall instructions of the client…Properly understood, a client has no interest recognised by the law in being able to instruct a lawyer to act contrary to the obligation to exercise an independent forensic judgment in fulfilment of the duty to the court to do so. Modern principles of case management give effect to these duties by facilitating a collaborative approach to refining issues by eliminating vagueness, imprecision, kitchen sinks, boilerplate and dross.

Relatedly, “it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable”… But, it is important to understand what is meant by that obligation. Where the merits of the client's position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits… For that reason, a client who is advised about problems with the merits of the case is free to reject that advice and insist that the case be litigated… The client can persist in asking the lawyer to perform the retainer by conducting the claim or defence. However, that right has its limits. It does not extend to allowing a client to instruct a lawyer to present an unarguable affirmative case or to provide instructions that constrain the exercise of the independent forensic judgment that all lawyers must bring to the conduct of a case.

All of those principles sit alongside the fundamental obligation of lawyers to carry out the instructions which they are retained to perform. When it comes to disputes, those instructions will be to sue, to defend, to mediate, to arbitrate, to conciliate, to appeal, to compromise, to enforce a judgment, to petition for bankruptcy and the like. It is not for a lawyer, holding those instructions, to decide not to carry them into effect based upon a view as to whether there is a basis to do so and thereby repudiate the terms of the lawyer's retainer…

Rather, a lawyer who forms the view that there is no proper basis to carry out the instructions or no reasonably arguable position to advance must terminate the retainer on that basis. The client may then seek other advice or choose to act in person. While the retainer is on foot a lawyer has no authority to abandon it by, for example, conceding a case as happened in the present case. Further, it is not for lawyers to act without consulting and conferring with their clients (or barristers with their instructing solicitors) about the course they are proposing to take. Clients are entitled to have the proceedings explained to them. So far as circumstances allow, clients are also entitled to have their instructions obtained regarding significant aspects of carrying out the retainer and to have those views considered before lawyers perform their obligation to exercise their independent forensic judgment.

Therefore, lawyers can act in the interests of their clients without denying the manifestation of those virtues which are essential to the administration of justice. It is possible to conceive of the role of a lawyer manifesting personal virtues in the due and proper performance of the role of a lawyer, a role which, as I have explained, is fundamental to the just administration of the law. Ethics in the practice of the law can be seen as taking on or practising the virtues or character traits of an ethical lawyer[7]. They are matters of personal character, but they are to be expressed consistently with the role that lawyers undertake in acting in the interests of a client (a matter I will address in some more detail later).

The fit and proper standard

The adoption of a virtue perspective on legal ethics is not as radical as might be thought. It is a perspective that has long been recognised as being at the foundation of what is required by the fit and proper standard which must be met by all lawyers in order to be admitted to, and continue in, practice[8].

Historically, in Australia, the term fit and proper has been used to describe the requirements to be met by those who seek to practice as lawyers. This formulation of words has long been recognised to import a requirement as to character. The position is even clearer where there is an express good fame and character requirement.

In 1909, Higgins J described the fit and proper requirement as meaning that it was not the person's reputation that was in question 'but his intrinsic character'[9]. The following year, O'Connor J observed that a person whose name is on the role is held out to be 'a fit and proper person to be entrusted by the public with those difficult and delicate duties and that absolute confidence which the public must repose in persons who fulfil the duties of [practitioners]'[10]. Almost thirty years later, Rich J emphasised that a charge of misconduct need not fall within any legal definition of wrongdoing and described the judgement to be made when determining whether the charge should be upheld in terms of 'general professional fitness and habitual adherence to moral standards'[11]. In 1947, members of the High Court considered the fit and proper test to raise an issue of 'intrinsic character'[12] or 'ethical fitness'[13].

Then, in 1960, the High Court said that the answer to the question whether a person is fit and proper to practice as a barrister 'must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister'[14]. However, the Court then went on to describe what it meant by those standards. It first described a body of conduct rules concerned with matters such as advertising, retainers and appearing without a junior. It described these as being mainly conventional in character. The Court then described rules of another class that were said to be fundamental in character. As to those rules, the Court said:

They are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is a matter of 'does not' than 'must not'[15].

The Court then explained that barristers do not lie to judges. They do not, when cross examining as to credit, ask a witness if he or she has been guilty of some evil conduct unless there is reliable information to warrant the suggestion which the question conveys.

Two things are going on here. First, the Court is eschewing any formulation of rules when it comes to the fundamental obligations of a barrister. Second, the Court is emphasising the intrinsic nature of those fundamental ethical obligations. They are not rules to be obeyed (must not), they are characteristics to be displayed because they are inherent in being a barrister (does not). This is to put aside a deontological perspective on ethics and adopt the perspective of a virtue ethicist.

It has been said that some aspects of personal character are likely to be of limited relevance to the practice of the law[16]. However, that appears to have been said in recognition of the warning by Black J of the United States Supreme Court that a test of good moral character 'can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer [and hence] can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law'[17]. That warning was given in a case concerned with the witch hunts against those with communist affiliations during the McCarthy Era. Importantly, it was not advanced as a reason for not focussing on character. Rather, it was a call to focus on evidence of intrinsic character rather than general evidence of good reputation. In the words of Basten JA 'a reputation may be based on flimsy and unidentified grounds and may be either better or worse than a careful analysis of character, as revealed in conduct or behaviour, would justify'[18].

More recent cases have continued to emphasise the need for lawyers to display 'intrinsic character' or 'moral integrity and rectitude of character'[19].

As Sir Gerald Brennan said:

The first, and perhaps most important, thing to be said about ethics is that they cannot be reduced to rules. Ethics…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[20].

Intrinsic character and ethical compass

We all have an ethical compass that guides the way we practise the law. I venture to suggest that for some it is more reliable than others. Even amongst those for whom it is reliable, I am certain that there is no single true North that is common to those compasses. Broadly speaking, most would point in the same direction most of the time. But, there are instances where we find ourselves standing at the ethical equivalent of the geomagnetic North Pole.

What I want to suggest is that the best guide at those times is past investment of time and practice in developing those intrinsic character traits that are required to undertake the responsibilities of legal practice. Importantly, the cultivation of those traits requires an understanding that a lawyer's role is not to act lawfully in the best interests of the client in every respect. Rather, to be trite, the lawyer's role is to act as a lawyer in the best interests of the client in every respect. The lawyer must always and in every respect be a lawyer for the client; not a mouthpiece or an agent or a champion or an envoy or an influence peddler or a lobbyist or a money-maker or a conniver or a fixer for the client. A lawyer cannot be anything but an ethical lawyer (and all that entails).

As soon as legal practitioners take on character traits that are inconsistent with their role as lawyers within the system for administration of justice then those practitioners act unethically. They betray their professional responsibilities. In acting in the best interests of their clients they have no business departing from manifesting the virtues that are inherent in being a lawyer.

Therefore, I would contend that ethics requires lawyers to resist the corruption of virtues which all lawyers should cultivate, being those virtues which incline them to be good lawyers. Properly understood, such a perspective does not involve the lawyer making decisions for the client according to a personal ethical perspective. It involves a lawyer being a good officer in the administration of justice and being true to the lawyer's professional calling.

Further, it means that legal ethics does not revolve around considering what the rules should be, but rather around the character traits that make a good lawyer. In particular it involves the process by which one generation manifests to the next the intrinsic character needed in order to live out the professional responsibilities of a lawyer in every aspect of practice.

The ethics of the lawyer and the ethics of the client

Often, the personal morality of a lawyer will not align with the morality of the client[21]. A lawyer who makes a plea in mitigation for a murderer does not identify with or advocate for the moral choices of the client. Likewise, in a commercial setting it is not for the lawyer to take on the commercial ethics of the client in the manner in which the lawyer represents the client. It is wrong to view the interests of the client as extending into the manner in which the responsibilities of a lawyer are to be discharged.

For example, a client does not provide instructions as to the way in which a letter of demand is to be expressed or what is to be included in a pleading or, worse still, the submissions to be made to the Court. The client provides instructions to make a demand, pursue a claim or to advance a defence. Then the lawyer carries those instructions into effect in a manner dictated by the professional ethical responsibilities of legal practice.

The client does not direct the manner in which the lawyer undertakes the professional task. Indeed, the lawyer has a duty to make independently the forensic decisions as to the conduct of the claim or defence[22]. Still less does the client require the lawyer to manifest an ethical character in attending to those instructions that is antithetical to the virtues of a good lawyer.

The analogy is incomplete, but a patient does not ask a doctor to frame treatment by reference to a diagnosis undertaken by the patient or to conduct a surgical procedure in the manner directed by the patient or to undertake a novel treatment without meeting requirements for medical ethics approval. To do so would be to ask the doctor to act inconsistently with their ethical responsibilities. The doctor explains to the patient the nature of the treatment or the procedure the doctor is willing to undertake and the doctor's recommendation. The patient may choose between available options or not to consent, but it is not for the patient to determine the manner in which the obligation to deliver professional care in accordance with ethical responsibilities of the doctor is to be undertaken.

Likewise, the manner in which a lawyer undertakes the client's instructions in performing the role of a lawyer requires the application of professional judgment guided by the ethics of the lawyer.

Virtues intrinsic to practise as a good lawyer

Now, after that rather long introduction, I turn to consider the virtues of a good lawyer and the reasons why they are found in all those lawyers who have that mark of integrity that results in them being accorded great respect. Their existence is an unspoken expectation that sits behind many of our ethical duties and rules and are the manifestations of what it means to be of good fame and character.

I venture to suggest that a lawyer who acquires each of these virtues in equal measure will meet the requirements of every conduct rule and discharge every recognised ethical duty. However, more fundamentally and importantly, a lawyer who takes on these virtues will embody what is required of every lawyer for the due and proper administration of justice. Such a lawyer will not look to the conduct or demands of others to set the standard. Instead, such a lawyer will develop the character traits that lead to the ethical practice of the law in every respect. The necessary ethics will become inculcated as virtues which will then, of necessity because of the person's character, manifest in ethical behaviour.

I will list the virtues as I see them and then seek to explain them. I set out with no particular number in mind. In the result there are ten. I immediately resist any analogy with Commandments. My point is that these should not be seen as laws or prescriptions. They are the character traits to be possessed by good lawyers. They are the virtues implicitly recognised in our ethical duties and rules.

An ethical lawyer is honest, reliable, candid, constructive, respectful, temperate, diligent, passionate, empathetic and humble.

Honest

I hope I do not need to justify why an ethical lawyer is honest. A person in the habit of lying and who sees nothing objectionable in doing so will not be able to properly discharge the responsibilities of a lawyer, especially given the trust and confidence that is reposed in lawyers by the court and their clients. However, the virtue of honesty goes beyond a disposition not to be consciously deceitful.

An honest lawyer will also abandon embellishment and undue adornment, exaggeration or overstatement. Honesty manifests in the making of concessions where appropriate and in disclosing contrary legal authority. An honest lawyer takes every step not to mislead by omission or oversight.

Many of the duties of prosecutors and the rules that apply to pleading practice or cross-examination as to credit do no more than require honesty. A good lawyer will meet these requirements innately, without the need to resort to rules.

At its very foundation, the law requires the virtue of honesty because of: (a) the trust and confidence reposed in lawyers by the courts, clients and the community alike; (b) the specialist knowledge of lawyers and the access it provides to just resolution of disputes; (c) the likelihood that lawyers may be dealing with those who lack sophistication or legal understanding; (d) the difficulty in scrutinising the work product of lawyers; and (e) the ability of a lawyer's actions to affect the access to justice of parties other than the lawyers own client.

Therefore, honesty in all respects is the hallmark of a good lawyer. The authorities are replete with statements as to its importance.

Reliable

Reliability is a cousin of the virtue of honesty. Much of the due administration of the law depends upon the court, other lawyers, clients and the community being able to rely on lawyers being true to their word; in doing what they say they will do and also what is expected of them when working out of the direct scrutiny of judges in court.

Good lawyers are reliable as to their promises and undertakings and the efforts they make to keep to deadlines. They ensure documents are dated and completed accurately.

Good lawyers also can be relied upon to take proper steps to ensure that affidavits and witness statements are a full account and are taken without coaching or influence. They ensure that disclosure obligations are taken seriously and are supervised by them, not delegated to their clients. They research the law thoroughly and present arguments informed by proper research such that their submissions can be relied upon with absolute confidence.

In all these things, good lawyers do not need to be scrutinised or checked because their inherent reliability means they can be depended upon to do what they say and do what is expected.

Candid

Candour, the quality of being open and frank, is also an essential virtue for lawyers. If dealings with lawyers were to require circumspection and careful scrutiny to ensure that the whole picture was being communicated and there were no hidden or obscure qualifications or agendas then there would be considerable additional cost and complexity introduced into all dealings involving lawyers. Lawyers would be forced to communicate with each other and with the court in an atmosphere of distrust, where the shadows of possible conspiracy and exploited trust loom large. When this does occur, the whole legal process is compromised and the importance of candour made plain.

Candour ensures that there is no sharp practice, no unfair dealing, no undue advantage taken and no possibility of the Court being led into error. Where a lawyer is involved in dealings, the virtue of candour is on display irrespective of the virtue of the client as to openness in dealings.

Litigation is approached on a cards on the table basis. Full manifestation of the virtue of candour ensures that the process for resolving disputes is fair.

Constructive

Good lawyers are always cooperative in seeking a solution to the problem at hand, whether it be a step in the conduct of the proceeding, an impasse in negotiations or the pathway to resolution of the whole dispute. They cannot be diverted from this responsibility by the demands of a client who seeks to antagonise or withdraw or refuses to engage in finding a just resolution or otherwise move the matter towards adjudication.

The virtue of being constructive means that good lawyers are not interested in raising technicalities or matters of little moment. They avoid point scoring or digressions. They only raise points with substantive significance. Here, I am not talking about limitation points or necessary approvals which form part of the law to be administered and given appropriate effect. I am talking about matters without consequence or where an available discretion will plainly be exercised in a manner that makes the point moot.

Respectful

Lawyers are alive to the human condition. To the capacity for fallibility. All people are worthy of respect. The law regards and treats all people equally and so do good lawyers.

The virtue of respect produces a particular way that good lawyers view the institutions of the law and the content of the law itself. Lawyers uphold the law. They explain the law and its rationale both to their clients and within the community. They defend its institutions.

They are not prone to blame judges or the laws themselves for the outcome in a particular case. In advising on and acting in an appeal they are respectful to the primary judge.

Respect leads good lawyers to comply with the law in their personal lives, to lodge their own tax returns and conduct their personal lives and own financial affairs in conformity with the law.

In dealing with in-person litigants a respectful character leads good lawyers to explain the process and procedure to those confronting its complexities. As a result, they ensure, so far as possible, that those acting without legal assistance understand the process and are able to participate in it. That is not to advise them about their substantive rights or what is in their interests. It is to explain things like the need for an affidavit, the difference between evidence and an argument, that a particular form is required or that witnesses must be arranged for a particular hearing.

Temperate

Good lawyers are slow to anger. They are even-tempered, fair and reasonable, just as the law is required to be in its application. The virtue of temperateness means good lawyers do not lose control or escalate a dispute. They are not contemptuous or arrogant or unreasonable in their demands. They are moderate and exercise self-restraint.

In dealing with procedural steps such as timetables or arrangements for disclosure, good lawyers make proposals that are reasonable and proportionate to the circumstances. They do not make ambit claims. They do not act to obtain a collateral strategic advantage. They act as a moderating influence upon their clients.

The temperate virtue of good lawyers means they communicate in a measured and considered manner and respond reasonably for requests for additional time or other indulgences. If they consider that circumstances mean that a particular case will need to be conducted with urgency and strict adherence to time periods then they put their colleagues on notice. They are polite and courteous. That does not mean they cannot be direct or firm in those rare instances where the occasion demands. Rather, it means they do not make things personal and maintain a basis for open and sensible communication between lawyers at all times. Temperateness produces a conception of the role of the lawyer as a diplomatic intermediary introducing calmness and constraint and encourages a perspective of collegiality when dealings with other lawyers.

Temperate lawyers recognise the steps that they would take if they were acting for the opposite party and take no objection when they are taken, despite the difficulties and inconvenience that such requests may raise.

Diligent

Good lawyers delight in being highly diligent. They are not satisfied with shoddiness or ineptness or inadequacy in their own work. At the heart of being a professional is the maintenance of the standard of knowledge and understanding necessary to perform the work. Good lawyers harbour a life-long commitment to learning. They keep abreast of changes in the law. They ensure they are familiar with new procedures. They engage in efforts to reform and improve the practices and procedures of the law.

Relatedly, when they fall short of the required standard, good lawyers do not charge. Their ethic will not permit work that falls short of the required standard to be compensated.

Passionate

Good lawyers are deeply convinced as to the importance of their role in the administration of the law. They are not half-hearted or desultory in their practice of the law.

However, this virtue is confined in its application to the lawyer's role. Good lawyers do not extend their passion into the arena of the dispute. They do not become invested in the outcome. They do not make quick judgments. They keep an open mind and assimilate information as it comes in without succumbing to confirmation bias.

Passion in a lawyer is directed to properly undertaking the role of lawyer. As a result, it cultivates an independent perspective. It does not manifest as being invested in the outcome.

Good lawyers do not align themselves with their clients or their interests. This is so irrespective of whether those interests are considered to be admirable or contemptable. They are not the instruments of their clients. As we say, they are not a mere mouthpiece. Instead, they mediate the operation of the law.

Empathetic

Good lawyers are empathetic. They are not consumed by their own interest or what their client wants. The virtue of empathy in good lawyers means they understand people and can see things from the perspective of others. They can put themselves in the shoes of their clients, of witnesses, of experts, of jurors, and have insights, compassion and understanding that aid the just resolution of a dispute.

Empathy also manifests as insight into how relationships of power should be approached. It constrains good lawyers from being overbearing, dominating and intolerant; from taking advantage of clients or junior colleagues and employees. It provides insight into what is appropriate as to the demands to be made on staff. It ensures that positions of power in the workplace are not abused.

Humble

Finally, good lawyers have sufficient humility to recognise their own failings. To revise their pleadings, to reformulate their case, to listen to opposing views, to have insight into their own inadequacies. Undue confidence, bravado or a lack of insight into one's own misdeeds both undermines the confidence that the Court can place in a lawyer and is usually productive of undue cost and delay.

Humility produces a readiness to apologise for error and accept responsibility for shortcomings. It also manifests in an acknowledgment of the contributions of others when working collaboratively.

Good lawyers readily make proper concessions. They acknowledge when they have not considered a particular point or do not know the answer. They do not filibuster or obfuscate.

Good lawyers recognise when instructions are beyond their experience or expertise. As a result they do not disadvantage the court or their client by being out of their depth or tempted to charge for work that is not of the required standard.

Humility means that good lawyers are not motivated by self-importance or personal standing. They do what needs to be done despite personal embarrassment or adverse financial consequences or the possibility of being socially ostracised as a result of representing an unpopular client.

Practising virtue

Virtues are gained and lost in small increments. The more often they are practised the more ingrained they become[23]. They are taken on by valuing their expression. The real issue in the practice of the law is not that it attracts people without virtue, but rather that there are considerable commercial and work pressures to compromise virtue. Lawyers involved in adversarial proceedings usually act in highly stressful circumstances where there is continual pressure to take on the animosities and the particular perspective and sense of injustice of their clients. They undertake difficult and complex work where the demands on time and effort can be considerable. Lawyers need to deal with many different types of people and maintain ethical behaviour when dealing with those who may not conform to or understand what it means to act as a lawyer. Clients often expect their lawyer to act in a non-lawyerly way. The prevailing business culture within the practice of the law and amongst its clients increases these pressures[24].

Nevertheless, as I have said, most lawyers begin with the right virtues. Indeed, people are often drawn to the law because they have the virtues I have listed. They believe in legal institutions and their capacity to deliver justice. They have insight into people and their problems and they want to solve the problems that arise in maintaining fairness and order in a society. However, when they begin as lawyers they confront a new environment in which to express their virtues. They begin to explore the boundaries between their conduct as a lawyer and the duty to act in the interests of their clients. They discover the pressures of business and making money[25].

However, what is required is not the learning of a new professional ethic. Often all that that is required is for lawyers to be encouraged to transfer their personal virtues into their new work as lawyers. If they do not the nature of legal practice may change who they are.

The following observation by Patrick Schiltz[26] is illuminating:

Unethical lawyers do not start out being unethical; they start out…as perfectly decent young men or women who have every intention of practicing law ethically. They do not become unethical overnight; they become unethical…a little bit at a time…by cutting a corner here, by stretching the truth a little bit there…It will start with your time sheets…And then you will pad more and more…A deadline will come up one day…and you will not be able to meet it. So you will call your senior partner of your client and make up a white lie for why you missed the deadline…None of these things will seem like a big deal in itself…But, after a while, your entire frame of reference will change[27].

Conclusion

A virtue ethics perspective on the ethical responsibilities of lawyers does not mean that the ethics and principles of the lawyer govern the instructions from the client. It is for the client to consider whether to bring or defend a particular claim, to decide whether to seek an adjudication rather than a compromise and to determine the commercial terms on which to settle. However, the adoption of a virtue ethics perspective ensures that it is not for the client to direct or govern the ethical behaviour of a lawyer. Legal ethics are not the rules of the game. In the practice of the law, clients are constrained to being represented by a lawyer with the character traits, the professional ethical virtues that are required of all good lawyers. The fair and just administration of the law depends upon such representation in a fundamental way.

Lawyers who adopt a virtue perspective concerning their ethical obligations rather than a deontological perspective are much less likely to act in an unethical manner in their day to day practice of the law. That is because at their very core, the nature of their being as a lawyer will manifest ethical behaviour in all aspects of their practice. Ethical behaviour is the fruit of virtue. Virtue is what makes the law an honourable profession.

20.10.2020



[1] I gratefully acknowledge the assistance of my research associate Zak O'Neil in undertaking research for this paper.

[2] Patrick Schiltz, 'On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy and Unethical Profession' (1999) 52(4) Vanderbilt Law Review 871, 908-909.

[3] Littrich and Murray posit that speaking of legal ethics as codes of conduct encourages an attitude that rules are like legislation, which to lawyers is an invitation to interpret their meaning and parameters: John Littrich and Karina Murray, Lawyers in Australia (4th ed, Federation Press, 2019) 109.

[4] The Aristotelian ideal of eudemonia.

[5] Aristotle emphasised the importance of learning virtue by modelling one's actions after those who possess practical wisdom: see Michael McGinnis, 'Virtue Ethics, Earnestness, and the Deciding Lawyer: Human Flourishing in a Legal Community' (2011) 87(1) North Dakota Law Review 19, 39.

[6] [2020] FCAFC 120 at [217]-[220].

[7] To be done by adopting what Aristotle would call phronesis, the intellectual virtue translated as 'prudence', or more commonly, practical wisdom.

[8] The character requirement has been important at least since the Roman Theodosian Code. The Code mandated that legal advocates be of 'suitable character' with past lives that were praiseworthy: see Deborah Rhode, 'Virtue and the Law: the Good Moral Character Requirement in Occupational Licensing, Bar Regulation, and Immigration Proceedings' (2018) 43(3) Law & Social Inquiry 1027, 1031.

[9] Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 692.

[10] Southern Law Society v Westbrook (1910) 10 CLR 609 at 619.

[11] Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 at 563.

[12] In Re Davis (1947) 75 CLR 409 at 416-7 (Latham CJ).

[13] In Re Davis (1947) 75 CLR 409 at 420 (Dixon J).

[14] Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 189.

[15] Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200.

[16] The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58] (Basten JA).

[17] Konigsberg v State Bar 353 US 252 (1957) at 263.

[18] The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [57].

[19] See, for example, Fruigniet v Board of Examiners [2002] VSC 140 (Pagone J); Janus v Queensaland Law Society Incorporated [2001] QCA 180 at [12] (de Jersey CJ); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [20] (Spigelman CJ); D'orta-Ekenaike v Victora Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [106]-[112] (McHugh J) and Legal Services Board v McGrath (2010) 29 VR 325 at [10]-[13] (Warren CJ).

[20] Sir Gerald Brennan, Ethics and the advocate, Speech delivered for the Bar Association of Queensland, 3 May 1992.

[21] See, for example, the dilemma posited by Charles Fried:

Can a good lawyer be a good person? The question troubles lawyers and law students alike. They are troubled by the demands of loyalty to one's client and by the fact that one can win approval as a good, maybe even great, lawyer even though that loyalty is engrossed by over-privileged or positively distasteful clients. How, they ask, is such loyalty compatible with that devotion to the common good characteristic of high moral principles?

Extracted from Michael McGinnis, 'Virtue Ethics, Earnestness, and the Deciding Lawyer: Human Flourishing in a Legal Community' (2011) 87(1) North Dakota Law Review 19, 24; Charles Fried, 'The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation' (1976) 85(1) Yale Law Review 1060, 1060.

[22] Dyczynski v Gibson [2020] FCAFC 120 at [215]-[220].

[23] Schiltz puts it as so: '[p]racticing law ethically depends primarily upon the hundreds of little things that you do almost unthinkingly and does not depend much upon conscious thinking: Schiltz, above n 2, 911.

[24] Littrich and Murray explain the larger and more 'progressive' law firms have adapted their internal organisation to a more corporate model and expanded into 'mega firms' through various linking arrangements. As a result, legal culture has underwent a paradigm shift to embracing corporate culture: Littrich and Murray, above n 3, 51.

[25] The culture of the legal industry is influential in slowly changing behaviour: Patrick J Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession (1999) 52 Vanderbilt Law Review 871 at 912.

[26] Now a judge of the United States District Court for the District of Minnesota.

[27] Patrick J Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession (1999) 52 Vanderbilt Law Review 871 at 916-8.


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