Ensuring lawyers have adequate time to consider ethical issues at work was a recurring theme in the Law Society’s online webcast “Lawyers as a cultural moral compass” which took place on 18 May 2021.
The event kicked off with an introduction from Rebekah Hunter, Chair of the In-House Corporate Lawyers Committee who described the panel as an “A-team of ethicists, philosophers and experienced legal practitioners.”
That A-team included Linden Barnes, Senior Ethics Solicitor at the Law Society of NSW, Daniel Csillag, General Manager Company Secretariat and Senior Legal Counsel at the Australian Securities Exchange and Dr Simon Longstaff AO FCPA, Executive Director at the Ethics Centre.
Kate Allman, journalist and Online Editor of the Law Society Journal moderated the event. She led the panelists through an insightful hour exploring the fundamentals of ethics, the numerous obstacles at play, and how to overcome them.
“If you look at the start of the conduct rules, we firstly have our duty to the court, it trumps everything,” said Barnes.
Barnes emphasised four key fundamentals when it comes to ethics: the duty to the court and the administration of justice, maintaining respect for the legal profession and acting honestly and courteously.
All the panelists agreed lack of time was a primary cause for ethical mishaps and the biggest challenge for the profession going forward.
Most ethical issues that you see going through the regulators, is because the person was time pressured and didn’t have the chance to stop and think about the ethical issues.
Linden Barnes, Senior Ethics Solicitor, The Law Society of NSW
“It’s very rare that you see someone who deliberately sets out to do the wrong thing,” said Barnes.
Dr Longstaff compared the long hours in law to the medical profession, asking the question, “Who wants to go into surgery or be treated by a person whose eyes are hanging out of their head?”
Similarly, who wants advice on a complex legal matter from a lawyer who hasn’t slept in days?
“It violates this very simple maxim in ethics which is ‘To will the end is to will the means,’” said Longstaff.
“If you decide that you want sound legal advice as an end, then you’ve got to provide the means by which it can be generated.”
Longstaff called for an end to the “insanity” of 20-hour workdays and encouraged lawyers to have those conversations with their clients.
“It is vitally important that we normalize normal working hours and take that pressure away so that people can think clearly and ethically,” said Barnes.
Csillag also echoed these concerns and emphasised that ethical challenges are not just the domain of legal counsel.
“It’s a problem that’s faced by the organisation as a whole,” said Csillag.
“The key decisions are being made by the board so it’s important to remember where the source of the ethical tone emanates from.
“There is a need for general counsel to work with the board to understand the complexities of what needs to be addressed, find time to devote to it and ensure there are adequate resources available.”
When asked whether lawyers should impose their own ethics on organisations, the panelists were unanimous in their response – no.
“Lawyers need to be getting companies to uphold their own claims about their core values and principles,” said Longstaff.
As Csillag succinctly put it, “It’s about organisations doing what they say they’re going to do.”