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Legal Ethics | Free Human Rights Essay

"Legal ethics is often described as an oxymoron or contradiction in terms - lay people finds the concept amusing and lawyers can find ethics impossible. The best lawyers are those who have come to grips with their own values and actively seek to improve their ethical practise."

Discuss this with reference to the LSP2 course.

Taken from: Inside Lawyers' Ethics by Christine Parker, University of Melbourne and Adrian Evans , Monash University, Victoria. Published by Cambridge 2007

‘A code of ethics, drawing upon the wisdom of the past, “should provide a beacon light on the mountain of high resolve to lead the young practitioner safely through the snares and pitfalls of his early practice up to and along the straight and narrow path of high and honourable professional achievement”'

During LSP2 it became clear that ethics are extremely important to a lawyers' commitment. Some would find it ironic how lawyers and ethics are compatible since the caricature image of lawyering. In relation to Roosevelt's theory above it is explained how vital the need is for the explanation of ethics to avoid ‘pitfalls' for the young practitioner. The issue of ethics has gone through a cycle of debates but now it seems evident that the issue is of more importance to the profession than it ever has been. Writers such as Kronman worry for the profession as his books message outlines, ‘that profession now stands in danger of losing its soul' although he is not the only one as many seem to be concerned at this stage due to the increase of competition and commercialism and as a result, the encroachment upon lawyer's ethics.

In considering the above concept one must question whether the lawyers' ethic should be judged according to ethical standards of the standard lay person or that of the legal professional? In relation to this question, ‘…ethics and professional responsibility are more than a set of rules, they are also a commitment to honesty, integrity and service in the practice of law.' This furthermore outlines the broad idea of ethics and the relevance in the profession today but nonetheless the importance of adapting to these ethics. But it will be difficult due to the ambiguities of these specific professional ethics as even now lawyers struggle to balance their own interests with the ones of the legal profession, ‘A central challenge of legal practice is how to live a life of integrity in the tension between the competing demands'

The study of legal ethics are very brief and when asked how to apply these ethics lawyers are presented with the professional conduct rules. Even though this provides a good starting point it provides no guidelines on how to apply these specific codes,

‘…they are long on righteous aspiration and vague generalities, but short on serious instruction and concrete guidance… ethics is reduced to a technical compliance with a set of do's and don'ts'

This itself represents the idea of legal ethics being very confusing in their terms. The majority would argue that the oxymoron and contradictory terms, ‘law and ethics', are due to the lack of agreement on the specific problems and what value should be implemented into the legal profession ethics. Many theorists have tried to pin point the exact reason for legal ethics and failed miserably such as Richard Abel who argued that the point of legal ethics are primarily geared at keeping an eye on the lawyers' economic monopoly over law related services. But in the modern time of today it takes more than theorists to define the exact terms of the legal ethics. Boon seems to believe that the reason for the perplexed terms are because, ‘…individuals bring to the practice of law their own individualised ethical community. This reduces the scope for common understanding of ethical commitments'. This demonstrates how the scope is almost reduced due to humanity as people set their own ethical beliefs before entering that profession. This aligns with Boons other argument that the issue of the ethical problem is due to the commercialisation of law firms as, ‘this leaves a potentially significant gap in the preparation of lawyers in terms of both technical competence and ethical responsibility'. It is evident that culture has a big part to play in determining ethics. This depends on the size due to the highly commercialisation of law firms as; ‘culture provides the setting for the rules of legal ethics'. The confusing feature of culture is the fact that ethics change wherever you are and there is no set uniformity of ethics which can be applied in law firms, be it in large or small firms.

Due to the higher level of commercialisation it is far more difficult to apply these ethics because the larger the firm the more under pressure a practitioner is. But even with pressure comes the set responsibility to value only work and ignore any other traditional professional value. This is far harder than actually thought of and when one starts this a lot of interests conflict only resulting in poor ethical adaptation. Nowadays the bigger problem is that ethics plays a big part in your status as, ‘Lawyers with competing values generally end up with second class status'.

This furthermore outlines the nature of the legal ethics as being of ‘hunt or be hunted'.

Boon outlined the conflict of values and ethics and that is ‘vital but invisible part of legal education'. But he went on further to examine the relation of morals and ethics to state;

‘It has been said that “[e]thical theory alone does not create morality. It can only cast light on morality by analysing and appraising moral justification. Ethics require thought, while morality must be lived”'

This outlines the fact that ethics is required to be thought of in depth that however much we might praise morality it is something we basically live. With thought it also requires the inspiration to help combine these thoughts into the legal practice but it is this that lawyers mostly struggle with. When a lawyer tends to turn to resource to help gain these ethics for the best legal practice expertise all they can turn to are these simply drafted professional conduct rules but even these carry much criticism as illustrated by Professor Julian Webb,

‘Part of the problem with our conduct rules is quite simply that they are drafted as black-letter rules. They encourage a formalistic compliance culture. They focus more on keeping ones nose clean, rather than on ‘best practice' standards'

She refers to these codes of conduct to ‘black-letter rules' which illustrates the helpfulness of these conduct rules to the lawyers. She further explains how it promotes a certain ‘formalistic compliance culture' which again will be different to the actual culture where one has his own set of values. Again this only makes it difficult and this is why it is only harder to apply ethics as these conduct rules only contain a ‘set of do's and don'ts'.

The most possible difficult part of applying these ethics is the relationship a lawyer must hold with his client. This relationship is very important to have and helps strengthen trust between the two however for this to be possible a high level of legal ethical professionalism is required. So how does a lawyer after reading the conduct rules do this? How does a lawyer defeat his morals? Well this is probably the most difficult task when considering religion as that today plays a big part in what is wrong and right and this is something which some lawyers find difficult to destroy. Stephen Carter talks about the unpersuasiveness of the conduct rules and how he personally feels which again outlines the struggle of the legal profession, ‘What I find unpersuasive is the claim that lawyers have an obligation to participate in clients wrongness without speaking up or trying to change it'. Here it is evident how ethics do cause a big problem in any lawyer's life and Carter here seems to mention the difficulty in representing someone who has done wrong. Further, he goes on to outline that, ‘it simply cannot be, for me as a Christian, … to give my service to whomever will bid for it without regard to what they are actually doing'. It is evident that ethics do battle with everyday values but this is a difficult element and one which lawyers will find difficult.

As much as lawyers find the concept difficult lay people find the concept amusing partly because of the image of the lawyer being one of the money hungry shark. Lay people who observe the profession from a narrower perspective seem to find it ironic how lawyers can play by the rules and act accordingly to place relationship such as client confidentiality before themselves. Such remarks go back to the earliest time of Louis XII of France who, ‘ said that “Lawyers use the law as shoemakers use leather; rubbing it, pressing it, and stretching it with their teeth, all to the end of making it fit their purposes”'. Lawyers reputation has always been one which has been quite heavily been questioned as Luban seems to believe that while playing along with the rules, ‘The lawyer either cheats her way to justice or cheats justice'. Clarence Darrow who has observed the ethics of lawyers believes that those representing wrong people should be classed as ‘The lawyers for the damned… who takes on those cases that no one else will come near, cases in which the client has for one reason or another rightly become odious or untouchable in the eyes of mankind'. This illustrates the negative image of lawyers who follow ethics and are blamed and those who don't follow ethics are made to look just as bad.

After discussing that ethics are difficult to adopt for some, others believe that it is the best lawyers who seek to balance their values with the legal profession ethics. Selznick as discussed in Boons book seems to believe that morals and legal experience are of irrelevance in the political community but theorists such as Bordieu disagree as he felt that the juridical field ‘…is “strongly patterned by tradition, education, and the daily experience of legal custom and professional usage”'. This portrays that the best lawyer is one who will pick up the required ethics and values by the daily experience demonstrating how vital it is to bring your own morality to the business and further shape them to be the ‘best lawyer'. Kronman who believes in culture playing a fundamental role stated that,

‘One becomes a professionally responsible lawyer by entering the profession, a process that include the mastery of certain rules, but which taken as a whole is better conceived as the process of acquiring the habits of cultures'

This conveys the importance of mastering these specific certain rules of the legal profession and it is important due to commercialisation of law firms to inhabit the culture surrounding the legal profession. This may seem like a heavy burden to a young practitioner but if these ethics are contemplated in detail one will only develop into the best lawyer. But the modern approach to be ‘the best lawyer' screams the need for feeling and reflecting upon those values. Parker and Brayne felt that feelings are important when applying these ethics to yourself. Brayne felt that, ‘While strong feelings can create havoc in reasoning, the lack of awareness of feeling can also be ruinous.' This illustrates the need to search your feelings for a good starting point to be able to improve legal practice. But if one becomes robotic simply abiding by the protocols set in the ‘black-letter rules' then the lawyer is only a mere tool or even worse a slave to society. The lack of feeling awareness will only result in the lack of purpose and further destroying your own values.

Parker however felt that reflection is a necessity to succeed. She felt that the approach to ethic adaption is something which should start at the early stages as when one is a law student, ‘All lawyers and law students are likely to benefit from identifying their own values, and reflecting about the ethical behaviour that they might derive from those values'. This breaks free from the contradictory terms mentioned from the earliest ages and additionally points the need to use your values and reflect upon your ethical behaviour. This in comparison to the professional conduct rules is more practical in its definition on how to go about applying these ethics and as time moves on ethics are becoming a great deal more understandable. Hutchinson in relation to Parker felt the same in his opinion towards reflection as he stated,

‘To be an ethical lawyer involves more than learning and applying a set of rules; it also demands the cultivation of a critical reflection upon the professional role and responsibilities of lawyers'

This furthermore relates to Boons argument that thought is required to be an ethical lawyer as critical reflection is an essential requirement to succeed. If a lawyer develops to use critical reflection as a tool of his profession he will only develop to be the ‘best lawyer' but in relation to the argument mentioned above lack of thought will only result in poorer ethical practice.

In relation to Christine Parker's comment ethics have many dimensions as mentioned above. But during LSP2 it has helped me gain ethical awareness of the issues surrounding the legal profession. Furthermore my argument mentioned above comes down to the one key concept in order to inhabit these ethics one must be self regulated. LSP2 has allowed me to pick up the skill of reflection allowing me to question my own abilities to develop them which is essential. Constant reflection is what is needed for the best lawyer to succeed when struggling to adapt to the ‘black-letter rules'. Some may argue that ethics begin to succeed in the modern time perhaps even at the detriment of religious morals. I, myself am not one to defeat my religious morals but Stephen Carter is one of great morals and illustrates how the application of the profession ethics and religion can be one;

‘Lawyering, like religion, ought to be an activity willing to stand apart from the rest of what society values, … to say “ I am different from everybody else; I have a different set of commitments because I give my allegiance elsewhere”'

Kelly on the optimistic side states in the context of ethics that, ‘We have emerged from the arm-twisting era' thus suggesting that we have surfaced to adopt these ethics more practically. But however as with theory comes different views for us to make judgements the more modern writer Hutchinson believes that even now the legal profession faces ethical dilemmas,

‘For too long, legal ethics has been the orphan of the legal community'

However one can only stress as much as possible that today the duties required of the legal profession are far more extreme than of the everyday job. So in that sense while the lay people find the concept amusing it is up to the young practitioners to learn these concepts on the job to defeat the false impression to become the good lawyer as desired by the civic republican legal elite theorist David Hoffman,

‘“to be great in law”, he contends, “it is essential that we should be great in every virtue”, and so the course of study is structured not simply to train competent lawyers, but to form good men'

Bibliography

• Kelly, M. J., Lives of Lawyers: Journeys in the Organizations of Practice (USA: University of Michigan Press, 1994)
• Parker, C & Evans, A, Inside Lawyers' Ethics (USA: Cambridge University Press, 2007)
• Carle, S. D. & Gordan, R. W., Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader(New York University Press, 2005)
• Rhode, D. L., Ethics in Practice: Lawyers' Roles, Responsibilities, and Regulation(USA: Oxford University Press Inc, 2003)
• Boon, A & Levin, J, The Ethics and Conduct of Lawyers in England & Wales, (Oxford: Hart Publishing, 1999)
• Maughan, C & Webb, J, Lawyering Skills and the Legal Process, 2^nd Edition (London: Cambridge University Press, 2005)
• Luban, D, Lawyers and Justice: An Ethical Study (Princeton University Press, 1989)
• Kronman, A. T., The Lost Lawyer: Failing Ideals of the Legal Profession (USA: Harvard University Press, 1995)
• Professor Webb, J, Managing by Values (2004) New Law Journal NLJ 154.7115 (215) Hutchinson, A, Toward a new legal ethic (2000) New Law Journal vol.150 no. 6948
• Brayne, ‘ Learning to Think Like a Lawyer', 298; citing Daniel Goleman, Emotional Intelligence: Why It Can Matter More Than IQ (Bloomsbury Publishing, London, 1996) 6-13.

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