The honest lawyer

Lawyers are supposed to be people of the highest integrity and honesty in their personal dealings. So what’s gone wrong? Middletons partner, Murray Landis, writes.

Lawyers are supposed to be people of the highest integrity and honesty in their personal dealings. So what’s gone wrong? Middletons partner, Murray Landis, writes.

Lawyers are one of the most tightly regulated service providers with statutory and professional obligations to act honestly and with fidelity in the interests of their employers and clients and as officers of the court? So why are there so many disparaging jokes about lawyers?

Perhaps it is because those two obligations are actually in conflict. Lawyers, in-house or otherwise, have a duty to act as zealous advocates of their organisations or clients. For in-house counsel their job involves finding ways to achieve what their management want and advancing their interests in ways which are lawful. But what is lawful is not always black and white. Are in-house counsel expected to suppress individual moral opinions and ethical concerns to be effective advocates for their organisations? Aren’t in-house lawyers supposed to be accountable for what their management team decide to do?

On the other hand, in-house lawyers are expected to be trustees of the legal system, advancing the interests of justice and truth.

One of the greatest of Australia’s High Court Judges, Sir Owen Dixon, once remarked that the pursuit of truth is not a matter which concerns either the parties to litigation or their personal representatives. The object is always victory, not abstract truth.

Lawyers are supposed to be people of the highest integrity and honesty in their personal dealings, so that clients can feel secure in confiding in them. So when a lawyer gets paid to achieve what their organisation or client wants, even if it involves stretching what the client is legally bound to do or not do, it’s hardly surprising honest lawyer jokes provoke so much mirth.

The problem is that the boundaries of professional responsibility have been eroded. The professional conduct rules are no more than signposts pointing a general direction to go, not fences which prescribe strict limits on how far a lawyer can wander from the path.

At the same time the whole notion of ethics in law has been expanded by new statutory concepts of misleading and deceptive conduct, unfair contracts, obligations to consider the purpose of legislation and not just its strict words. The courts themselves have expanded concepts of unconscionable conduct.

This places lawyers in a very difficult position advising their organisations about their legal rights, when their aim can be the exploitation of ambiguities and uncertainty in the law in their own favour.

Is it part of the job of in-house lawyers to help their organisations to avoid obligations which the community rightly or wrongly believes they should bear?

In-house lawyers are in a very difficult position, they do not have the ability to choose who they act for or to reject cases or clients they find morally repugnant. Their choice is to resign and find alternative employment.

Nonetheless in-house lawyers, like lawyers in private practice, are sometimes asked to advise clients how to sabotage the spirit and integrity of the law occasionally seeking to exhaust the resources of less well funded adversaries. Helping clients do this turns the legal system into a device for evading the very rules it is designed to enforce, and worse, using officers of the court to do it.

No wonder depression in the legal profession is higher than in almost any other profession!

An in house lawyer needs personal courage, ethics and skill to have a real role as a moral compass for their organisation. Unlike the rest of the community, lawyers have a professional obligation to act ethically and therefore to advise them on the right direction to go and the right thing to do.

A large part of the problem for lawyers is that the professional conduct rules have been designed as a consumer protection measure to address imbalance in the power relationship between the lawyer and ordinary consumers of legal services.

For those lawyers who act for large corporations and for in-house lawyers, the professional conduct rules are often not of much help.

The power imbalance in the relationship is in favour of the client.

In-house lawyers working for large corporations are expected to understand “commercial reality” that is often nothing more than an exhortation to greed.

The former Chief Justice of New South Wales, Mr Justice Spiegelman, once said “a market wakes up every morning with a completely blank mind, like Noddy.”

If in-house lawyers are to be professionals, then while they must have regard to the market, they must not act as if they are part of the market. There is more to being a good lawyer than that.

There is no doubt it is very hard to do the right thing as a lawyer, but as Mr Miyagi said to his young student Daniel-san in The Karate Kid:
“Must talk
Walk on the road
Walk left side – safe
Walk right side – safe
Walk middle – sooner or later get the squish – just like grape
Understand?”

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