Working through a real life ethics dilemma
By Donna Cooper.
There are times in legal practice when you can see an ethical issue coming down the track. It’s best to get on the front foot and to deal with the issue sooner rather than later. The following recommended step by step guide for working through a real life ethical dilemma is tailored for Victorian legal practitioners and serves as a brief overview to frame positive ethical thinking.
1. Consider the ethical problem
- Who is affected by the issue?
- To whom do I owe duties?
- What are those duties?
- Which duties take priority over others?
- Is there any urgency to the matter?
2. Which resources might help me to work through a solution to the problem?
- Are there any applicable conduct rules (Australian Solicitors’ Conduct Rules 2015 or Legal Profession Uniform Conduct (Barristers) Rules 2015)?
- Is there any applicable statute, case law or VCAT decision?
- LIV Ethics Guidelines?
- Previous LIV or Vic Bar Ethics Committee Rulings?
- Legal Practitioners Liability Committee (LPLC) checklists?
- VLSB+C policies/Fact Sheets or RPA News Alert bulletins?
3. Is there anyone I can consult for advice?
- Senior practitioners/colleagues/counsel
- Professional associations
- Experienced Ethics Lawyers
4. How do I feel about the advice I’ve received or the conclusion I’ve reached?
There will be many ethical dilemmas for which the Australian Solicitors’ Conduct Rules will not provide specific guidance and the solution will require your discretion. How does the proposed solution sit with you morally and ethically?
5. Have I made a file note of my research and my decision?
It is critical to make a thorough file note of the issue (as you understand it to be) the resources you consulted, and your eventual decision.
Donna Cooper is an Ethics Consultant with ethics4lawyers and is an Australian Legal Practitioner. Donna was previously the Manager of the Ethics & Professional Practice Department at the Law Institute of Victoria and Secretary to the Law Institute’s Ethics Committee.