Top 10 myths about ethics
By Michael Dolan.
One of the more uncomfortable professional challenges for solicitors in our fast moving and overloaded information world is to remember at all times that we are members of an honourable profession and not just running a business. We owe a paramount duty to the court and the administration of justice which may, on occasions, outweigh the important fiduciary duties we owe to our clients. In addition, the fiduciary duties we owe to our clients may outweigh our own personal interests. Let’s consider top 10 myths about ethics which abound and may cause us grief if not addressed correctly.
Let’s look at 10 typical ethics myths:
1. Ethics challenges can be addressed simply by clicking on a website or reading articles and text books – Sorry, it doesn’t work that way in the real world of legal practice. You’re not studying for an exam when you are suddenly confronted with a serious (and sometimes very urgent) ethical challenge in your work. Personal expert advice and guidance gives you real peace of mind in these often very stressful situations.
2. Ethics doesn’t matter in a modern legal world – it’s now all about business success, making money and retiring by the age of 40. Good luck – you may be spending your 40th birthday in jail.
3. The conduct rules rule – but only if you can’t find a loophole. After all, we’re lawyers, and finding loopholes in the law is what we’re good at. Ethics is the bedrock on which the practice of the law rests. Ethics is what lawyers do. The conduct rules are a map through the ethics minefield. They do not contain all of our ethical obligations. Ethics problems can often be multi-faceted and complex. Obtaining personal expert advice and guidance is a smart thing to do.
4. Conflict of interest doesn’t matter in this fast moving business world – it’s all about making a deal come together, and, after all, it’s a really handsome success fee. As solicitors we have a duty to avoid being caught in a conflict of interest situation. Remember that a double insurance excess applies if a successful professional indemnity claim arises out of acting for more than one party in a transaction. And you may also run the risk of prosecution by the Legal Services Commissioner finding yourself defending your practising certificate in VCAT. Rule of thumb with conflict of interest – if in doubt – DON’T!
5. My client is clinically depressed and has just told me that she is going to self-harm – not my problem, I’m not a doctor or psychologist. As solicitors we have a duty to act in the best interests of our clients. This may mean us having to breach our duty of client confidentiality for the sole purpose of saving our client from self-harm. Just be human and do the best thing for your client. The conduct rules will support you.
6. I’m in court tomorrow trying to persuade a judge that my ethical obligations will not allow me to give the personal undertaking requested by the court without my client’s instructions – maybe I should just roll over and agree. Whilst we owe a paramount duty to the court, we also owe a fiduciary duty to our client. Balancing these duties can often be like walking a tightrope – best done with personal ethics advice and guidance.
7. I am acting in a deceased estate matter where the two executors, who are siblings aged in their 60’s, have been fighting since infancy and cannot agree on anything – maybe I should just do what the older and more vociferous executor wants? This is a very common scenario for Wills and Estates solicitors. Oiling the squeaky wheel is not the answer. The younger and quieter executor making an appropriate application to the Supreme Court assisted by an independent solicitor is likely to bring about a much better solution for everyone.
8. I’ve just been asked to witness a statutory declaration which I have not seen my client sign because the settlement is due tomorrow and there is no time to have the signature properly witnessed as my client lives in Queensland – maybe I should just sign it as no-one is ever going to notice! Sure, go ahead if you’re ready to face a finding of professional misconduct which may put your practising certificate at risk. Seek urgent expert advice about legal and ethical ways to deal with the situation.
9. I have been asked by the solicitor for a major bank to give undertakings in a major multi-million dollar property development transaction which are outside my control. My client has told me that, if I don’t do it, he will take his business to a solicitor who will. I’m not going to let $500K in legal fees slip out the door. You cannot give an undertaking to do things which are outside your control. It’s a breach of the conduct rules and unethical. As a matter of fact, it was also unethical for the bank’s solicitor to have requested such an undertaking from you.
10. My client in a criminal prosecution has pleaded not guilty, but has just told me that he committed the offence – maybe I should just forget what he said to me and run a vigorous defence including calling an ace alibi witness. Whilst it is the legal obligation of the prosecution to prove every element of the criminal charge alleged against a defendant beyond reasonable doubt, once the client has confessed guilt, you will be significantly constrained in the way in which you thereafter conduct your client’s defence. For example, you could not run the alibi defence.
All of the above real life situations reflect the ethical challenges which solicitors face in daily legal practice. This article is not academic theorising.
These are typical ethical scenarios faced by anxious solicitors who are trying to do the right thing for their clients. If you face these or similar situations, seek out personal guidance and reassurance to help you deal with these ethical challenges. Sometimes they can arise in very urgent and highly stressful situations. Never sweat it alone. Always seek advice.