Academic journal article University of Queensland Law Journal

Adding Value for Lawyers, Clients, and the Public: The Business Benefits of Ethically-Informed Practice

Academic journal article University of Queensland Law Journal

Adding Value for Lawyers, Clients, and the Public: The Business Benefits of Ethically-Informed Practice

Article excerpt

When [managers] claim that competition or capital markets are relentless in their demands, and that individual companies and managers have no scope for choices, it is on the strength of the false premise of determinism that they free themselves from any sense of moral or ethical responsibility for their actions. (1)

There is a growing sense the public no longer accepts that something can be legal and yet unethical, particularly in relation to the conduct expected of legal professionals. (2) Nationally, law societies appear to be responding and making an effort to ensure that their members attain the goals set for them by the public. (3)

In 2006, the Queensland Law Society ("QLS") conducted a survey and found that most instances of ethical misconduct by members happen as a consequence of 'extra and unexpected pressures on the practitioner, lack of preventive or check-up systems in the workplace, or more generally the existence of an unethical culture at the firm'. (4) As a result, the QLS recognised that a rules-only approach does not adequately cover all the issues that lawyers will face. (5) Instead, it recommended that lawyers, in considering their advice to clients and their personal behaviour, reflect on the values that inform their choices, keeping in mind that lawyers play an important role in society. (6) In other words, to be truly ethical, a lawyer ought to make decisions only after the implications of those decisions are considered. (7) Significantly, the QLS stressed the importance of convincing both professional bodies and individual law firms that the environment they create through the activities of their members shapes the consequences of lawyers' daily decision-making. (8) In effect, the preferred ethical approach should involve professional bodies, law firms, and individual practitioners. (9)

Legal academics also acknowledge that the professional rules alone do not always provide an answer to ethical dilemmas, (10) and some different approaches to lawyering have been proposed. These alternative conceptions of lawyering promulgate the idea that lawyers often refer to other values, like morals, to guide their decisions. This may, and even should, involve lawyers in a more open discussion with their clients about the consequences of lawyers' 'legal', but not necessarily ethical, advice. In reflecting on some recent 'unethical' world events like Enron, Rhode comments that it is 'a good moment for moralists' and 'integrity is in fashion'. (11) Yet will law firms embrace the proposals of both the law society and academics?

There is a growing acknowledgement that firm culture influences the conduct of the individual practitioners within it. (12) For instance, one commentator asserts that 'culture and technique, the etiquette and skill of the profession, appear in the individual as personal traits ... the longer and more rigorous the period of initiation into an occupation, the more culture and technique are associated with it, and the more deeply impressed are its attitudes upon the person'. (13)

It is the writers' thesis that ethical conduct that takes account of one's values and moral considerations could realise the financial demands of practicing law as a commercial enterprise. This approach goes some way to facilitating greater job satisfaction for all lawyers in the hierarchy. Therefore, the writers' contention is that positive business outcomes will result from adopting and inculcating a more ethically-informed approach to legal practice, but in asserting this it is important to convince the institutions involved, the professional bodies and perhaps more importantly the law firms, (14) that employ the individuals who practice law. (15) Fundamentally, managers of law firms need to lead by example and create a corporate culture that values ethical legal practice.

I A Professional Identity Crisis

It is a widely held perception that the role of the professions is changing, (16) and many authors suggest that this is not a positive development. …

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