The Benson Commission of 1979 highlights some clear and important aspects which it regard imperative to the composition and nature of a profession, these include;
‘[Mastery of] a specialised field of knowledge. This requires not only the period of education and training… but also practical experience and continuing study of developments in theory and practice.’
This is not to be taken lightly. The law plays a large part in everyday life for practically everyone and is a vast subject.
People place their trust in lawyers to perform services according to their needs, and lawyers are under a professional duty to do this to the best of their ability.
The practise of law has extremely close links with the moral concepts of right and wrong, lawyers are also facilitators of justice. This clearly distinguishes the duties of the legal profession from a mere occupation as commented in the title and illuminates the need for a strong ethical background. Lawyers must have a close and constant personal link with the moral and ethical decisions they make.
‘Lawyers are also in a unique position to help others in a broader sense. They can use skills of listening, empathy and communication not only to help clients achieve their goals, but to enhance their own role as helpers, improving the human condition by making connections with and serving other human beings’
This view strongly undermines the view submitted in the title that ‘it is only a job at the end of the day’
It is clear from the extract that duties and expectations of the legal profession are far more than just that of a mere occupation.
In order to keep a high moral and professional watermark within the legal profession the law society has produced a ‘guide’ to the professional conduct of solicitors, the latest edition was published in 1999. In this guide there is reference to the solicitors practice rules of 1990, these are basic and fundamental principles in regard to the ethical practice and professional duties of lawyers, they include the solicitor’s independence and integrity, the solicitor’s duty to act in the best interests of the client and the solicitor’s duty to the court.
These professional conduct rules are a good starting pointing the study of lawyers’ ethics, however that is emphatically all they are, a starting point. They do not provide instructions to the application of ethical judgement in practise, the professional codes are a minimum standard which lawyers must comply with, rather than a comprehensive definition. As professor Julian Webb states,
‘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’
This view from Professor Webb complements this view of Allan Hutchinson,
‘The reasons for having codes of professional conduct are fairly obvious- to educate lawyers on communal expectations; to affect behaviour; and to offer a basis for discipline. However, 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’
It is submitted that this view defines the approach to professionalism adopted by the solicitor cited in the title question. Specifically that ethics are mere guidelines to be read from a sheet, to be half heartedly acted upon and do not constitute an important aspect of the legal profession. Allan Hutchinson emphasises this point further,
‘Lawyers approach ethics in the same way that they approach law…as a set of rules to be mastered and manipulated to serve the purpose in hand.’
This is a bleak view of the aims of the legal profession and its members’ ethical consciences’. However, on a positive note there are many more lawyers and law firms which place the correct, huge emphasis upon ethical and professional conduct at all times. This involves a personal and individual acknowledgement that to be a member of the legal profession carries with it very important and strong moral and ethical aspects, which when carried out properly add to the betterment of society and the lawyer or law firm individually and personally. This also includes the acknowledgement that to be a professional and ethical lawyer it takes much more than simply learning certain guidelines and rules without practically taking them on board and personalising them, adding to them, in order to adapt with everyday lawyer situations. It also involves development of a lawyer’s personal and professional attitudes towards the nature of his or her job, its implications to society, the duties that come with it and the relation of this to the legal profession itself.
‘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’
Withstanding the obvious fact that lawyers aim to successfully earn money as well as perform their professional duties, the involvement of money is arguably the major force behind the unethical and unprofessional behaviour of lawyers, however many lawyers and law forms take on pro-bono work which illuminates a more altruistic and ethical side of the much criticised profession
It is submitted that regardless of whether remuneration is involved, lawyers are mindful to act professionally and ethically for each of their clients. A major duty is to act in the best interests of the client, within this subject there is the fundamental professional rule of lawyer-client confidentiality. The lawyer is bound to keep all of his clients’ information confidential. This relationship is vital for the information flow from client to lawyer and enables the lawyer to be an effective one. It strengthens the relationship of trust and integrity between lawyer and client and it is a good example of legal professionalism and high lawyer’s ethics. The legal system would be undermined if it could not ensure this close lawyer-client relationship.
This relationship can sometimes put enormous pressure upon a lawyer and question his ethical judgement. There are some exceptional circumstances where lawyer-client confidentiality can be breached, however in the vast majority of situations a lawyer is bound by this difficult and sometimes testing duty.
From the evidence provided it is increasingly becoming clear that lawyers attribute ethical responsibility in the roots of their everyday professional life. On a daily basis lawyers balance duties and interests and this is an ethical quality itself. This professionalism and ethical conscience is not wholly attributable to ‘black-letter’ rules or law society guidelines. These principles are inherently ‘learnt’ on the job and are, even before this stage part of a good and ethical lawyers mindset. In the traditional approach to the study of law, legal ethics was not considered an ‘academic subject’ and was neglected as something that would be picked up once in practice. During the previous two decades there have been positive efforts to directly introduce legal ethics and professionalism into law degrees. It is respectfully submitted that this is a long needed innovation and one which will benefit the legal profession.
‘For too long, legal ethics has been the orphan of the legal community’
It is helping to bring into the profession fresh lawyers with a pre studied mindset in regard to professional conduct and the important ethical dimension of legal practice. This is positive for society and the lawyer personally. The answer to ethical and professional challenges inherently does not lie solely in the adherence of conduct rules and an amoral view towards the profession as adopted by the solicitor in title question.
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Bibliography
Carrie Menkel-Meadow, ‘Narrowing the gap by narrowing the field: what’s missing from the MacCrate report-of skills, legal science and being a human being.’(1994) 69 Washington Law review 593-636 at 620
Hutchinson, A ‘Toward a new legal ethic’(2000) New Law Journal vol.150 no. 6948
Law Society’s Guardian Gazette, ‘Code of conduct for lawyers in the EC’, (1989) The law society, vol 86 no. 25 p.48
Professor Webb, J, ‘Managing by values’(2004) New Law Journal NLJ 154.7115 (215)
Brownsword, R, ‘Ethics in legal education’ (1999) 33 Law Teacher 269
Nicolson D, & Webb, J, Professional Legal ethics: Critical interrogations (1999), Oxford University Press, London
O’Dair, R , Legal Ethics: Text and Materials (2001), Butterworths, London
The Royal Commission of inquiry into legal services 1979 London HMSO Cmnd 7648 v 1:28,30
The Benson Commission (The Royal Commission of inquiry into legal services 1979) London HMSO Cmnd 7648 v 1:28,30
Carrie Menkel- Meadow, ‘Narrowing the gap by narrowing the field: what’s missing from the MacCrate report-of skills, legal science and being a human being.’(1994) 69 Washington Law review 593-636 at 620
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 p 1234
Hutchinson, A ‘ toward a new legal ethic’(2000) New Law Journal vol.150 no. 6948 p 1234
Hutchinson, A ‘ toward a new legal ethic’(2000) New Law Journal vol.150 no. 6948 p 1234
Hutchinson, A ‘ toward a new legal ethic’(2000) New Law Journal vol.150 no. 6948 p 1234
