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Q: Do I need to worry about appearances to be ethical?

By Linden Barnes, Senior Ethics Lawyer
LSJ Issue 84, February 2022

A: Has your ethics solicitor turned into some style guru? I can reassure you that has not occurred – as I type away in my leggings and t-shirt. If you want guidance on style, read the article in this edition about living-with-COVID fashion (page 36). But do appearances have something to do with our ethical obligations?

Yes. At the risk of making ethics sound trite, ethics are definitely about appearances. They are not solely about appearances, rest assured, but appearing to be acting ethically is an important part of acting ethically.

For instance, we must uphold the administration of justice. To uphold it, we need to make sure it is upheld in fact and in appearance.

In the case of Charisteas v Charisteas [2021] HCA 29, the High Court contemplated communications between a judge and a barrister during proceedings. They occurred neither in the presence of the other parties, nor with their knowledge and consent. The High Court wrote: “The apprehension of bias principle is so important to perceptions of independence and impartiality ‘that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined’ (emphasis added).”

The case of Kallinicos and anor v Hunt and ors [2005] NSWSC 1181 dealt with obligations owed to former clients. I won’t go into the arguments here about whether we have an ongoing obligation of loyalty as well as confidentiality, but there is always the administration of justice to consider. Brereton J said: “The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice” (emphasis added).

Appearances are important to ethics. So, make sure you don the suit of ethics when you come to work.

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