Ethics primer for new lawyers (and older ones as well)
By Michael Dolan.
You are about to start your legal career having recently been admitted to practice by a formal order of the Supreme Court. You
are now an officer of the court and are very excited and looking forward to helping your clients. However, you also remember that you are
joining an honourable profession and that ethical behaviour is a must in all of the work that you will carry out as a lawyer. As you
prepare to go into the office on your first day you think to yourself – if only I had a primer on ethics!
I recently had the privilege of being invited by Dr Carolyn Johnston, Senior Lecturer at Melbourne Law School (my alma mater) to address two groups of JD ethics students about what ethical legal practice looks like in the real world of a solicitor’s daily work. These are the key points that I made in my one hour interactive ethics conversation with this great group of young people.
What does ethics in legal practice really mean?
Ethics is doing the right thing when no-one is looking!
- Ethics is what lawyers do as an integral part of their daily work
- Ethics is what distinguishes legal practice from other businesses
Officer of the court
When you have completed your legal studies and choose to enter the legal profession as a practitioner you will first apply to the Supreme
Court of a State or Territory for a formal court order admitting you to practice as an Australian Lawyer.
Paramount and fundamental ethical duties
Upon the pronouncement of that court order you will become an officer of the court to which you will owe a paramount duty for the rest of your career as a lawyer and you will also owe a paramount duty to the administration of justice.
In addition, you will immediately assume other fundamental ethical duties of:
- Acting in the best interests of your client
- Being honest and courteous in all aspects of legal practice
- Competence, diligence, and timeliness
- Integrity and professional independence
- As part of your paramount duty to the court and the administration of justice you must NEVER knowingly lie to or mislead the court or be party to your client or witnesses doing so.
- You will have fiduciary obligations of client confidentiality and loyalty to your clients and you must avoid conflicts between your ethical duties.
- As part of your legal training you will learn about the many other ethical duties which attach to your role as a lawyer.
- Ethics is the foundation stone upon which the practise of the law is built – everything you do in legal practice must be looked at through ethics tinted glasses. You must learn to have ethical behaviour hardwired into your professional DNA.
The professional conduct rules
In daily legal practice you must comply with rules which will assist you to act ethically and in accordance with the principles of professional conduct established by statute, the common law and the rules themselves:
However, it is important to follow the principles underpinning the rules – mindless compliance with the black letter of a rule is not sufficient.
As former Chief Justice of the High Court of Australia The Honourable Sir Gerard Brennan AC said in a speech to barristers in 1992:
“The first, and perhaps the most important, thing to be said about ethics is that they cannot be reduced to rules. Ethics are not
what the barrister knows he or she should do: ethics are what the barrister does. They are not so much learnt as lived. Ethics are the
hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal
process. If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion.”
Common areas of ethics enquiries by solicitors:
Paramount duty to the court:
- What must I do if I have inadvertently misled the court?
- What if I have a client who has lied on oath in an affidavit or in court?
- What if I have a guilty client who wants to plead Not Guilty?
- What are my duties in protecting the integrity of evidence?
Duty of confidentiality
- The police are in my office with a search warrant – what do I do?
- My client threatens self-harm or harm to a 3rd party – what do I do?
- Loose lips sink ships – I must never discuss client matters in public places
- Client legal privilege is a substantive legal right belonging to my client
Conflict of interest – avoiding a clash of your ethical duties
- Former client conflict – protection of confidential information
- Concurrent client conflict of interest
- Conflict of interest between my client’s interests and my own
Other common areas of ethics enquiries
- What do I do if I believe my client lacks legal capacity?
- What is the “No Contact” rule and how does it apply?
- Why are lawyers’ undertakings so important in legal practice?
- What do I do if another lawyer or person makes an obvious error?
- I have received confidential documents inadvertently – what do I do?
Useful ethics resources:
- Dal Pont – Lawyers Professional Responsibility (excellent text book)
- Handy Hints on Legal Practice – Lewis, Kyrou, & Dias
- Law Institute of Victoria Ethics Committee Rulings
- Law Institute of Victoria Ethics Guidelines
- ethics4lawyers website