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28 June 2016

How to Uphold Your Legal Ethics in an Increasingly Commercialised Profession

Published on 28 June 2016
The tension, and in some cases, conflict, between a lawyer’s duty to the Court and duty to the Client, would be familiar to any graduate of a legal ethics class. The pressures of practice, particularly in an increasingly commercialised, competitive environment, accentuate the issues first raised by ethics class hypoethicals. Defending barristers and solicitors against civil claims and disciplinary proceedings is Nola Pearce’s specialty. As Special Counsel with Carter Newell, she is keenly aware of the ethical dilemmas faced by Australian lawyers. As well as being Chair of the Queensland Law Society’s Ethics Committee, Pearce regularly lectures in Professional Ethics for The College of Law’s Legal Practice Management Course.

Insights spoke to Pearce for her advice on managing common ethical issues faced by lawyers, what she saw as emerging ethical issues, and how to ‘switch off’ in an age of constant connectivity, enabled by technology and exacerbated by competition and client demands. 

“A major objective is ensuring that lawyers (especially early career practitioners) at incorporated legal practices (ILPs) are not subject to shareholder-driven performance pressures which conflict with their duties to the Court and to the client,” said Pearce. To address this issue, Pearce urged firms to be supportive of practitioners’ duties, which must transcend the bare interests of shareholders. “This requires more than just lip service,” said Pearce, “and could include ethical boards or gatekeepers within the practice structure to independently review decisions or investigate lawyers’ concerns.”  

In-house lawyers often perceive conflicts between their duties to Court and client and can feel that the greater proximity of the client suggests priority over a Court they rarely see. Pearce also notes this misunderstanding of the primary duty, which extends beyond the physical Court to the administration of justice, can be an issue for purely transactional employers.  

“In-house lawyers may consider negotiating a paramountcy clause into their employment contracts which expressly recognises their first duty to the Court,” said Pearce. 

Regulatory and commercial pressures could stifle the learning and growth of lawyers – learning from mistakes is essential in any pursuit but carries particularly onerous penalties as a lawyer.  “Firms must find ways to nurture the spirit of their lawyers,” said Pearce, “to allow them to safely grow and in order to foster a true love of the profession.” 

As for a major ethical issue likely to emerge in the next decade, Pearce predicts cloud computing/data storage and the offshoring of service delivery may create new risks for client confidentiality.  Cyber risks, such as hacking and data leaks, may pose similar issues. 

On a more personal front, the ever-present nature of emails, cloud-based communication and work mobile phones may have resulted in client work creeping into lawyers’ personal time. This presents its own set of ethical issues – lawyer burnout may lead to ethical oversights; debriefing is an approach recommended by the Law Institute of Victoria. Insights spoke to Pearce on the issue. 

“Each lawyer must take responsibility for managing their own work/life balance,” advised Pearce. “If a particular matter is unfolding in a different time zone, major communications may need to occur at night from home – but then another period of the day must be quarantined for switching off. Choose carefully the clients and matters where you provide your mobile number and an offer to “call any time” – usually, that’s unnecessary, and can leave you feeling as though you’re never off duty. Firms should also take some responsibility for encouraging lawyers to unplug – unfocused responses to after-hours client emails or even lawyer burnout aren’t good for the bottom line.”