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Q: What are the ethics behind “Let’s kill all the lawyers”?

By Linden Barnes, Senior Ethics Lawyer
LSJ Issue 74, February 2021

A: We certainly can question the ethics of anyone who throws that quote at us, aiming to hurt. However, I suspect that most people who bandy it around are unaware of its context – that it is said by someone of questionable character advocating the overthrow of institutions does put a rather different spin on it.

And how does this relate to our daily professional ethics? Well, first, Shakespeare arguably was defending our profession, not undermining it. More prosaically, it shows how misleading a statement can be, which is a constant ethical dilemma put to me by callers to the ethics line.

How often, when we reconsider what we have put forward on behalf of our client, do we wonder whether we said enough. Is what we said misleading without more? We might understand what we meant, but will the recipient do likewise?

It is vital to consider the circumstances of the recipient. Are they a busy judge only given a snapshot of the matter? Are they a self-represented litigant who does not understand legal terms? Are they a colleague who, like us, is trained to interpret communications cautiously?

My rule of thumb is as follows:

  • if you are worried
  • if you have rung the ethics line
  • if you are lying awake at night
  • it probably is misleading. 

Correct it and regain your sleep – “Nature’s soft nurse”, as the Bard rightly called it.

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Q: Who is the April Fool of a client?

By Linden Barnes, Senior Ethics Lawyer
LSJ Issue 76, April 2021

A: Ourselves. That’s right. The saying goes that if we act for ourselves, we have a fool for a client and also a fool for a solicitor.

Quick checklist:

  • I didn’t do the conveyancing when I bought my home.
  • I didn’t draft my will (or I don’t actually have one – like doctors who die before their own eyes, we solicitors often never get around to having a will).
  • I had a fantastic solicitor who sorted out my family law situation.
  • I promised to provide documents to the solicitors for the other side.

If we ticked yes to all of the above, we should go back and look at number 4. It is an undertaking. It is likely to land us in a conflict between our obligations to the undertaking and our obligations to our client. To avoid that, did we give ourselves good advice on tailoring the terms so we could meet all our obligations? Perhaps putting in some element of best endeavours or reasonableness? We would advise a client to do that, so why not ourselves?

This is where the fool part takes over. We fail to give ourselves good advice. We have, in effect, inadvertently acted for ourselves and not given ourselves the benefit of independent advice.  Moreover, that good advice would actually start not with the terms of the undertaking but whether it should be our client giving the undertaking instead. The matter is theirs so the undertaking should be theirs. And while we are advising them on the undertaking, contemplate whether we would have given ourselves the same advice we are giving them. Probably not.

So, don’t be the April Fool and don’t act for one.

PS It has been lovely to be able to meet with so many of you in the real over this last CPD season. May that continue. 

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I didn’t quite catch your name … who are you? The problem with identification.

By Paul Monaghan, Senior Ethics Lawyer
LSJ Issue 77, May 2021

For some lawyers, their very presence brings immediate recognition, fawning attention heaped upon them and many hushed conversations between onlookers, discussing the greatness that now graces the assembled throng of fellow members of the legal profession.

However, this may not occur for all solicitors. The large and everchanging profession makes the personal identification of a solicitor a far more difficult task than in the past, and this has several unwanted consequences. The difficult nature of forming an immediate professional rapport with another solicitor, the need to ensure courteous communications, maintaining every opportunity to avoid disputes, and to expedite resolving disputes, becomes ever more difficult. 

There are professional obligations upon every solicitor when communicating, and the required level of identification. These obligations may be summarised by reference to and compliance with the solicitors’ practice rule 8, where in the conduct of legal practice “… a solicitor must cause the firm or business name of the solicitor or firm … to be mentioned in legible characters on all communications written in the course of legal practice by the solicitor.”

However, this may not be enough to solve the emerging problems of identification amongst a growing legal population and the increasing incidence of cyber fraud. The use of computer-based communications, online financial transactions, property settlements and dealing with imposters pose a burden upon the solicitor to maintain the integrity of legal practice. This is becoming manifest in the number of attempts at fraud, scam directions and ‘dodgy’ instructions occurring late on a Friday afternoon. When in doubt, confirm identification of the solicitor you may dealing with and confirm instructions from clients by several means.

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Q: Everyone else is being a little unethical, so that makes it okay?

By Linden Barnes, Senior Ethics Lawyer
LSJ Issue 78, June 2021

A: I am sure we have all come across this defence, maybe when a client is seeking advice or when we are trying to work out what to do in terms of our professional ethical obligations.

I want to give this defence an official title: the sheep defence. With that title, should our unofficial response to it be “Baaaa”? Because how valid is it as a defence for either a client or for us? It is not.

In fact, the Conduct Rules not only do not contemplate such a defence, they positively go the other way. They apply personal responsibility to each of us for our ethical obligations. No one of us is too junior, too inexperienced, too part of the crowd to be freed from that responsibility.

Yet it can be daunting to be the ethical leader, to stand out from the mob of sheep. This is particularly so when the “everyone else” includes colleagues who are senior to us in experience or hierarchy. How do we lead those who should be leading us?

Here I might do a little cross-promotion (is that unethical for an ethics solicitor to do?) for the articles in this LSJ on leadership. Have a read of them to gather some useful leadership tips on how you can lead where it is not easy to do so.

And here are my top three ethical reasons to be an ethical leader:

  • We must not breach our own personal professional obligations.
  • We must be leaders and help our colleagues not to breach their obligations. This is not just a matter of collegiality (see s 39 of the Legal Profession Uniform Law).
  • We will sleep better at night as a result. Can I resist mentioning that we will then not need to count sheep … ?
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The role of lawyers throughout history, from the Dreamtime to the present

By Paul Monaghan, Senior Ethics Lawyer
LSJ Issue 79, July 2021

People often ask what makes lawyers different from other people and why they are so special. What is that essential ingredient that will separate the few from the many and identify the noble lawyer?

Every society, from the ancient to the modern, has had those who have upheld the principles and ethical standards required to sustain a society.  

Comparisons of societies around the world have displayed the presence of a legal profession (or equivalent) that has a membership with a unifying thread of ethics and professional standards. 

In today’s global economy, the union of ethics and sustainability is becoming another part of that unifying thread that will require a legal profession to be agile and receptive to change, in order to address the challenge of advising our clients on all matters affecting our world and to “provide clear and timely advice to assist a client to understand relevant legal issues … and informed choices during a matter…” (Rule 7).

Arising from these professional obligations, future legal discussions in Australia will require the inclusion of clear and timely advice on the claims for “greater management, involvement, and empowerment by Indigenous peoples over country.”

These are topics that will be necessary for the lawyer to include in legal advice to properly “… allow every client to understand relevant legal issues … and to make informed choices about action to be taken during the course of a matter …”.

Changing circumstance illustrates the nature of what makes a lawyer so different. It is that they are well placed to manage this change, to be “a client’s trusted adviser and representative, as a professional respected by third parties and as an indispensable participant … to forestall and prevent conflicts and ensure conflicts are resolved …”.

This special role of lawyers from the past and now into the future provides hope and confidence in securing an enduring, just and ethical society.

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