Legal Ethics is (Just) Normal

LEGAL ETHICS IS (JUST) NORMAL ETHICS: TOWARDS A COHERENT SYSTEM OF LEGAL ETHICS MIRKO BAGARIC* AND PENNY DIMOPOULOS** I INTRODUCTION A Overview In recent decades, public confidence in the legal profession has declined. The profession is facing ‘unprecedented scrutiny’1 and public criticism. According to Justice Kirby, ‘the community appears to have larger expectations of lawyers today but a diminishing estimation of the likelihood that they will be fulfilled’.2 The public are concerned about a lack of access to justice, poor results, high costs, long delays and the impact that practices and procedures of the legal profession have on these issues. Many feel that lawyers lack honesty and professional ethics and that the law is not serving the community. The gap between the law and the community seems to be growing wider.3 The fallout from McCabe v British American Tobacco Australia Services Limited (‘McCabe’)4 (where a leading Australian law firm was heavily criticised by a judge for the manner in which it acted for a tobacco company which destroyed inculpatory documents) has elevated the importance of legal ethics in the public domain and has * ** 1 2 3 4 BA LLB(Hons) LLM PhD, Head of School of Law, Deakin University. BA LLB, PhD Applicant, Monash University. F Shiel, ‘Push for Ethics Advisers at Law Firms’, The Age (Melbourne), 6 September 2002, 7. See also J Cain and K Hammond, ‘Tending the Bar: Lawyers are Expected to Act Ethically. Whose Job is it to Ensure They Do?’, The Age (Melbourne), 18 August 2002, 16. <www.viccourt.gov.au/speeches/stjames.htm>. J Faine, ‘What is Happening to our Profession?’ (1997) Australian Lawyer 40. [2002] VSC 73 (22 March 2002). In McCabe the Supreme Court of Victoria found that law firm Clayton Utz advised its client British American Tobacco Australia Services Ltd to systematically and massively destroy documents, CDs, computer disks—indeed anything containing records or other evidence about the chemical effects of nicotine, health effects of smoking, marketing and other aspects of the tobacco industry. Clayton Utz advised on and approved BAT’s document retention policy, which Eames J said could equally be described as a document destruction policy. Begun in 1985, the court found this policy to be ‘a means of destroying damaging documents under the cover of an apparently innocent house-keeping arrangement’. Eames J found that ‘the advice was, in effect, get rid of the documents but claim an innocent intention’. As a result, the defence by BAT was struck out and judgment was awarded in favour of the plaintiff. This aspect of the judgment in McCabe was reversed on appeal (British American Tobacco Australia Services Limited v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197 (6 December 2002)), however, the case nevertheless served to heighten the public interest in the conduct of lawyers. 1 BAGARIC AND DIMOPOULOS (2003) further eroded the public perception of lawyers - so much so that the Law Institute of Victoria has even suggested that all Victorian law firms should appoint designated ethics advisers.5 This paper argues that legal ethics as it currently stands is a misnomer. The rules governing the conduct and working practices of lawyers, which come within the rubric of what lawyers, judges and legislatures term ‘legal ethics’, generally have little to do with the social construct that is ethics in the proper sense. Legal ethics as it is popularly known is rather a set of disparate rules which regulate certain aspects of legal practice. The principles [of legal ethics] are often stated in unduly vague or misleading terms, are in conflict with other principles or are of uncertain authority. In addition ... there is considerable uncertainty as to what sanction will be imposed for breach of a particular principle.6 B Absence of Overarching Rationale The rules and principles which form the body of knowledge know as legal ethics are devoid of an overarching rationale (though, as is discussed below, they are often compatible with a desire to achieve efficient work practices) and are more properly defined as rules which are conveniently packaged under an ethics label. The lack of coherence in legal ethics is perhaps not surprising given the relative dearth of literature dealing with legal ethics in Australia - and the United Kingdom.7 As has been noted elsewhere, this means that those seeking to advance knowledge in this area are drawn to the United States where the topic has reached almost saturation level. However, principles developed in the United States are not easily transportable: The exclusively American development of the New Legal Ethics has had a pernicious effect. ... American scholars often forget that the rest of the world exists, or at any rate assume that propositions about American ethics are propositions about reality as such. The New Legal Ethics is no exception. Its practitioners grapple with exclusively American examples - examples which presuppose American regulations, American constitutionalism, the American version of the adversary system, the unified Bar and a legal culture that everyone recognises in other contexts is quite exceptional. ... This is unfortunate in two ways. First it casts doubts on whether the insights of the New Legal Ethics are true at the level of philosophical generality .... Secondly, scholars in other countries who wish to participate in the exciting research and reform programmes of the New Legal Ethics confront a literature that focuses entirely on American law and practices. Scholars must treat the New Legal Ethics cautiously, asking of virtually every proposition whether it is true in their own culture.8 The broad purpose of this paper is to introduce more principle in legal ethics. The disassociation between legal ethics and considered ethical theory is the principal reason for credibility problems besetting the legal industry. This paper contends that the only manner in which to make progress towards a rational and justified system of legal ethics is to link it to wider ethical theory. To this end, we suggest that it is incoherent to speak 5 6 7 8 Shiel, above n 1. J Disney et al, Lawyers (Law Book Company, 2nd ed, 1986) 597-8. This is a point noted by R O’Dair, in Legal Ethics: Text and Materials (Butterworths, 2001) 17. D Luban, ‘Introduction: A New Canadian Legal Ethics’ (1996) 1 Canadian Journal of Law and Jurisprudence 1. 2 Vol 3 No 2 (QUTLJJ) Legal Ethics is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics of legal ethics as a stand-alone moral construct - in the same way that it is a fallacy to assume that practices such as medicine, politics, hairdressing or food supplying are governed by discrete ethical norms. It is all the same thing. Legal ethics is simply the application of general moral principles to the legal practice - so far and to the extent that moral principles are applicable to the domain of legal practi (...truncated)