At the start of this book we introduced four ways of thinking about ethical behaviour for lawyers. Zealous, client-focused lawyering – adversarial advocacy – was contrasted with responsible lawyering – lawyering that counterbalances client advocacy with upholding the responsibilities and duties of lawyers to society. A third approach, moral activism, sees the ethical duties of lawyering as being not so much in vigorously asserting clients’ rights, or the rule of law, as in actively doing one’s best in the interests of justice. Finally, an ethics of care approach sees the ethical virtues of all three of the preceding approaches as overrated and emphasises instead the importance of the lawyer caring for and respecting the needs and moral aspirations of each client, each witness and even each opponent with whom they come in contact, as well as attending to their own needs and aspirations.
Underpinning each of these approaches are the general moral categories of consequentialism, Kantian ethics and classical virtue ethics. An understanding of general morality enriches our grasp of the strengths and limitations of our four lawyer-specific approaches to ethical decision-making, such that carefully considered decisions are likely to involve both general morality and one or more of the four approaches.
In practice, of course, lawyers can and do move around among these ideal types and their general moral sensitivity. The adversarial advocate might still be dominant, but even the determined and courageous criminal barrister can also be the quiet and despairing carer, standing, if they are so permitted, near their condemned client when the trapdoor drops. Consider the case of Nguyen Tuong Van, aged 25, of Melbourne. He was hanged in Singapore on 2 December 2005 for smuggling 496 grams of heroin through Changi Airport in 2002. His Australian lawyers, Justice Lex Lasry (then a QC) and Julian McMahon AC,1 As discussed in Chapter 5, McMahon subsequently represented Andrew Chan and Myuran Sukumaran, drug traffickers on death row in Indonesia. represented him fearlessly and expertly throughout his trial and helped foster international pleas for mercy. When those pleas were rejected by Singapore, the two lawyers, who had always acted pro bono out of compassion, applied without success simply to be present at the hanging, for no other purpose but to stand alongside their client.
There is no advantage in any lawyer rigidly following just one of these four ideals of ethical lawyering all the time. But it seems likely that, just as individuals have preferred comfortable psychological types,2 See, eg, the Myers-Briggs Type Indicator (‘MBTI’), a psychological categorisation instrument developed from the work of the Swiss psychologist and psychiatrist Carl Jung (1875–1961): see Isabel Briggs Myers and Peter B Myers, Gifts Differing: Understanding Personality Type (Davies-Black, first published 1980, 1995 edn). so also ethically aware lawyers will tend to identify more often than not with one ethical type that expresses their values for lawyering and shapes their practice. All lawyers and law students are likely to benefit from identifying their own values and reflecting on the ethical behaviour that they might derive from those values. In each of the previous chapters we have examined how the values represented by the different approaches would apply to certain specific situations and contexts that commonly arise in legal practice. In this chapter we examine more closely the significance of personal values-awareness for lawyers’ ethics. The book concludes with a suggested method for self-assessing one’s ethical type/preference.
Underlying our analysis of the four ethical approaches to lawyering and ethics in legal practice are personal value commitments by scholars and practising lawyers. Consider, for example, the continuing debate among lawyers and ethicists about lawyers’ proper role, if any, in securing justice where law does not do so. The issues of contention between the responsible lawyer and the moral activist are not merely academic. Rather, each participant in this scholarly and practical debate conscientiously asserts the moral superiority of their own viewpoint because of the values reflected in that viewpoint – for example, loyalty in the adversarial advocate, resilience in the responsible lawyer, determination in the moral activist or compassion in the carer.
For example, ethicists like Stephen Pepper, Alice Woolley and Bradley Wendel argue that the ‘liberal’, or neutral, model of legal partisanship, which favours the primacy of legal rules as the major reference point in resolving ethical quandaries, is the proper framework for determining lawyers’ ethics.3 See, eg, Stephen L Pepper, ‘Lawyers’ Ethics in the Gap Between Law and Justice’ (1999) 40 South Texas Law Review 181; Stephen L Pepper, ‘Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering’ (1995) 104 Yale Law Journal 1545; Stephen L Pepper, ‘The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and Some Possibilities’ (1986) 11 American Bar Foundation Research Journal 613; W Bradley Wendel, ‘Civil Obedience’ (2004) 104 Columbia Law Review 363. Alice Woollley, ‘Is Positivist Legal Ethics an Oxymoron?’ (2019) 32(1) Georgetown Journal of Legal Ethics 77. See also Daniel Markovits, ‘Legal Ethics from the Lawyer’s Point of View’ (2003) 15 Yale Journal of Law and the Humanities 209. Broadly speaking, they ground their powerful advocacy of their positions on the personal conviction that there is no greater guarantee of individual fairness or justice than that provided by the rules – in effect, by the rule of law.4 See W Bradley Wendel, ‘Pluralism, Polarization, and the Common Good: The Possibility of Modus Vivendi Legal Ethics’ (2021) 131 Yale Law Journal Forum 89. Their argument is not new, although it is developed by each writer with great care, sophistication and an integrity that demands respect, even if we disagree with it. The essence of the argument is that true security comes from definable rules or, at least, from rules that are capable of flexible interpretation, as circumstances and developing moral dialogues require.5 Pepper, ‘Lawyers’ Ethics in the Gap Between Law and Justice’ (n 3).
In contrast, the equally impassioned injunction of ethicists like Donald Nicolson, Julian Webb and David Luban is first to look at the justice and fairness of the context of the lawyer’s choice about how to act, regardless of any apparently applicable rules.6 Donald Nicolson and Julian Webb, Professional Legal Ethics: Critical Interrogations (Oxford University Press, 1999); David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988) They suggest that deep-seated social inequality governs the major Western economies and that to rely on the rule of law (that is, to have blind confidence that the rules are fair and are administered fairly) as an ethical guideline is naive, or worse, complicit in the perpetuation of that inequality. With profound and rapidly growing gaps in wealth and access to justice the world over, Nicolson, Webb and Luban have never been more entitled to ask about the moral context: whether the client is, directly or indirectly, behaving oppressively to those more vulnerable than themselves, or being unfairly oppressed.
The important point is not that Pepper, Woolley and Wendel (who might be said to defend adversarial advocacy and responsible lawyering) and Nicolson, Webb and Luban (moral activists) disagree but that they disagree respectfully, and with an open-mindedness and willingness to be scrutinised. These ethicists write with energy and conviction because they believe lawyers’ ethics matters, and think that others need to believe and act as if it matters too. Their actual ethical judgements are almost secondary. Their commitment to the integrity of open discussion of passionate positions is the essential quality that all lawyers, indeed all law students, can seek to identify with as one way to assist in strengthening their own virtues and working out their own ethical choices.
Inside lawyers’ ethics in practice there are many very personal dilemmas. Feelings about what is right and wrong can lurk beneath the surface without being expressed. Law students are still too often told to ‘think like a lawyer’ and discouraged from linking their values and their feelings to what they are learning.7 Molly Townes O’Brien, Stephen Tang and Kath Hall, ‘Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum’ (2011) 21(2) Legal Education Review 149; Melanie Poole, The Making of Professional Vandals: How Law Schools Degrade the Self (Research Paper No 12–13, College of Law, Australian National University, 6 June 2011). Many go into practice finding it difficult to recognise the importance of their often-confused feelings for ethical decision-making, and lawyers can be particularly poor at this skill. We often gloss over the personal dimensions of ethical conflicts by using rules as our only guide, ignoring the fact that rules are often full of overriding principles, qualifications and provisos, and discounting our ‘gut feelings’ about what is right.
As we have seen in the previous chapters of this book, all sorts of arguably unethical things are possible if bare rules are the start and finish of decision-making about ethical conduct: whether acting for the tobacco company that is intent on selling its product according to law but manoeuvring to avoid liability for its past deceit about the fatal effects of tobacco smoke; overcharging a client because time-billing remains a prevalent practice and allows for ambiguity as to what is a ‘fair and reasonable’ bill; structuring a global corporation’s tax affairs so as to conceal indefinitely the income earned in one country or declare it in another with ultra-low taxes;8 Luke Harding, ‘Panama Papers Source Breaks Silence Over “Scale of Injustices”’, The Guardian (online at 6 May 2016) <https://www.theguardian.com/news/2016/may/06/panama-papers-source-breaks-silence-over-scale-of-injustices>. See also International Consortium of Investigative Journalists and Elise Worthington, ‘Panama Papers: Why “John Doe” Risked Their Life for the Mossack Fonseca Leak’, ABC News (online at 5 April 2016) <http://www.abc.net.au/news/2016-04-05/why-the-panama-papers-mossack-fonseca-leaks-really-matters/7300262>. keeping client secrets, the disclosure of which might assist in avoiding an injustice or a public wrong; or even acting for two clients who have competing interests.
Rules should be only one part of the complex jigsaw of factors that lawyers consider in taking any ethical decision. The other jigsaw pieces are far more numerous than just the practice rules and even the common law rules and legislation.
More than anything, the jigsaw piece that must be explicitly identified and taken into account in each of these dilemmas is the individual lawyer’s values – the personal, and often quite private, set of characteristics and priorities that are the bedrock for each person’s beliefs, attitudes and behaviours. These qualities do not necessarily determine our behaviour, but they are the starting point in understanding that lawyers are as human as the rest of the species, and can and should make choices about what they actually do.9 Hugh Brayne, ‘Learning to Think Like a Lawyer: One Law Teacher’s Exploration of the Relevance of Evolutionary Psychology’ (2002) 9(3) International Journal of the Legal Profession 283, 301. In contrast to our hopeful view of lawyers’ autonomy, consider Markovits’s argument that there is a sense in which lawyers can’t make those choices – they are forced by their role in helping apply the law to be ‘unethical … due to historical forces beyond their control’: see Markovits (n 3) 293.
As mentioned in Chapter 1, it is also important to be aware of our emotions: Hugh Brayne emphasises the importance of feelings in understanding values for everyone, including law students, quoting Daniel Goleman in Emotional Intelligence:
While strong feelings can create havoc in reasoning, the lack of awareness of feeling can also be ruinous, especially in weighing the decisions on which our destiny largely depends: what career to pursue, whether to stay in a secure job or switch to one that is riskier but more interesting, whom to date or marry, where to live, which apartment to rent or house to buy – and on and on through life. Such decisions cannot be made through sheer rationality; they require gut feeling …10 Brayne (n 9) 298, quoting Daniel Goleman, Emotional Intelligence: Why It Can Matter More Than IQ (Bloomsbury, 1996) 53.
An individual lawyer may or may not be fully aware of their values or, more precisely, of the interplay between their ethical reasoning, emotional (feeling) processes and professional practice, but awareness of personal values is an important aid to ethical practice.11 Brayne (n 9) 298. See also Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1983). It is easier for a lawyer who knows what they truly value to decide, whether, for example, to
assist a company to restructure to avoid significant liabilities to individuals who have been wronged by the company;
refuse to change legal advice to make it more politically salient;
use an ‘attack dog’ approach in cross-examining a fragile witness; or
find legal loopholes to justify/rationalise a client’s greenwashing PR campaign.
Lawyers may have some inkling of the right thing to do, but if they have not delved into their values very much and all this ethics and ‘psychology’ seems a bit too hazy or suspect, and they can find a rule – whether of substantive law or procedure – that just might allow them not to think about it too much, that rule will, all too often, be located and relied upon. For this reason the emphasis of this book is on exploring the values that underlie the traditional approach to many ethical dilemmas, and then suggesting possible alternatives, as well as setting out key formal rules of conduct as one point of reference in decision-making.
For many lawyers, knowing what they truly value will be the starting point not just for workplace survival but for longer term satisfaction in the legal world. Below we consider how our personal values might express themselves in preference for one ethical approach over another. But first we discuss another important reason to clarify our values.
Our values, our wellbeing and our happiness are inextricably linked. Research tells us that wellbeing/true happiness does not come from the ‘mere pursuit of pleasure, but from living in accordance with [values] that create a sense of meaning, connection and self’.13 Kathryn E Williams, Joseph Ciarrochi and Patrick CL Heaven, ‘Relationships Between Valued Action and Wellbeing across the Transition from High School to Early Adulthood’ (2015) 10(2) The Journal of Positive Psychology 127, 127. The authors explain that subjective wellbeing (wellbeing) has an affective component (the net balance between someone’s positive and negative affect) and a cognitive component: at 132. Psychology’s self-determination theory (‘SDT’) helps explain this relationship. SDT holds that to live a satisfying life, we require certain basic psychological needs to be met: our needs for autonomy, competence and relatedness.14 Lawrence S Krieger, ‘The Most Ethical of People, the Least Ethical of People: Proposing Self-Determination Theory to Measure Professional Character Formation’ (2011) 8(2) University of St Thomas Law Journal 168, 170. If our need for autonomy is met, we feel that we are able to live in a way that reflects our true self. Our competence need is met if we feel capable and competent in our endeavours. And if we are experiencing ‘relatedness’, we feel a meaningful connection to the important people in our lives.15 These three needs are more likely to be met if we live by certain ‘pro-social’ values: self-understanding, good relationships with others, helping others and building community.16 (These values are ‘pro-social’ because they support actions that benefit other individuals, our community or society as a whole.)
Our motivations, which are underpinned by our values, also influence our wellbeing.17 Tim Kasser and Richard M Ryan, ‘Further Examining the American Dream: Differential Correlates of Intrinsic and Extrinsic Goals’ (1996) 3(22) Personality and Social Psychology Bulletin 280; Tim Kasser, ‘Materialistic Values and Goals’ (2016) 67(1) Annual Review of Psychology 489. If our motivations reflect a focus on ‘extrinsic’ values such as wealth, status or the desire to impress others, we can undermine our wellbeing because we are not prioritising activities that meet our psychological needs.18 Yuval Feldman, ‘The Complexity of Disentangling Intrinsic and Extrinsic Compliance Motivations: Theoretical and Empirical Insights from the Behavioural Analysis of Law’ (2011) 35 Washington University Journal of Law and Policy 11, 12. As Feldman writes: ‘Extrinsic motivation is linked to actions that are driven by external commands or incentives. Conversely, intrinsic motivation is found when the behaviour is chosen from within the individual, usually out of a sense of moral or civic duty’ (at 12). But if, for example, we are intrinsically motivated to work as a lawyer because we genuinely enjoy our work and find it fulfilling, our psychological needs are likely being met by our work, and we are thus more likely to experience satisfaction and wellbeing.
Research by Lawrence Krieger and Kennon Sheldon emphasises the importance for lawyers of these connections between values, motivation, psychological needs and happiness. The authors surveyed lawyers practising in four US states and found that lawyer happiness (which they defined as subjective wellbeing and life satisfaction) was very strongly predicted by whether a lawyer’s basic psychological needs were met and whether the lawyer was intrinsically motivated in their work.19 Lawrence S Krieger and Kennon M Sheldon, ‘What Makes Lawyers Happy? A Data Driven Prescription to Redefine Professional Success’ (2014) 83(2) George Washington Law Review 554. Lawyers in public service jobs reported better wellbeing and life satisfaction than did lawyers in prestigious, well-paid jobs. This research establishes that prestige, high incomes and other external benefits do not ‘compensate a lawyer who does not experience autonomy, integrity, close relationships, and interest and meaning in her work’.20
Krieger and Sheldon also observed that, while their survey did not measure professionalism or ethics,
it did measure psychological factors that are virtually certain to be important sources of ethical and professional behaviour for lawyers – authenticity (which is essentially identical to integrity), competence, relating well to others, helping and community values, and valuing self-understanding and growth. These factors also include the strongest predictors of well-being in our subjects.21
Other work by Krieger explains further these links between professionalism, ethics/values and psychological needs: a professional exhibits integrity (which is connected to autonomy), competence and service, and displays interpersonal skills when relating to colleagues and clients (relatedness to others).22 Krieger (n 14) 170.
Attention to values is thus critically important: pro-social values underpin both our wellbeing/happiness and our professionalism. But attention to values is important not only for individuals. As discussed in Chapter 1, we (as legal practitioners and as a profession) also need to pay attention to workplace values, which influence lawyers’ ethicality and wellbeing.
The next section includes an exercise designed to help clarify one’s professional values and ethical preferences.
The values that can be said to underlie ethical decision-making may appear well developed by the time a student is in law school, but the assumption of this book is that an individual law student’s ethical preferences in relation to legal professionalism are still in formation and may undergo some change when the student is presented with possible alternatives.24 See generally Adrian Evans and Josephine Palermo, ‘Zero Impact: Are Lawyers’ Values Affected by Law School?’ (2005) 8 Legal Ethics 240; JD Droddy and C Scott Peters, ‘The Effect of Law School on Political Attitudes: Some Evidence from the Class of 2000’ (2003) 53 Journal of Legal Education 33. If this is correct, then law students’ early knowledge of their basic legal ethics preferences, and of the possibilities and challenges of change, may promote earlier ethical development and more satisfactory working lives. Some might realise sooner that they would be better off following a different career path. Some will understand that they have a legal vocation and not just an occupation. Ethics awareness earlier on might also help law students and lawyers make better choices at the beginning of their careers about what area of practice to pursue.25 Andrew M Perlman, ‘A Career Choice Critique of Legal Ethics Theory’ (2001) 31 Seton Hall Law Review 829. Further, greater clarity about ethical choice could lead to a clearer sense of professionalism and contribute to better public regard for those professionals.
Complete transformation is most unlikely, but an ethics awareness process can assist in strengthening students’ (and lawyers’) resolve to behave ethically. We suggest the following process:
1. Complete (individually) the Appendix: Part 1 – ‘Self-Assessment of Legal Ethical Preferences’, following the instructions in the appendix, and then Appendix: Part 2 – ‘Scale to Self-Assess Legal Ethical Preferences’, strictly in that order. This instrument – technically described as a ‘scale’ – has been developed in an Australian legal profession setting26 Based on work by Evans and Forgasz (n 23). but can be used elsewhere with appropriate cautions. We emphasise that the instrument will only be useful if approached honestly and in good faith.
2. Discuss whether, on reflection, the number you obtained for each ethical preference appears realistic to you. Were you surprised by the result or are you confirmed in your earlier opinions or guesses?
3. Apply your recently discovered preference(s) to a hypothetical, but realistic, practice scenario to consider whether your preference or preferences ring true or not in the context of the scenario. The case studies in this chapter, in this book and elsewhere27 Other resources include: the scenarios in the Australian Lawyers’ Values Study in, eg, Evans and Palermo (n 24); Debra Lamb, ‘Appendix: Case Studies’ in Stephen Parker and Charles Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues (Clarendon Press, 1995) 237 (case studies collected from interviews with Australian lawyers about their real experiences); Philip B Heymann and Lance Liebman, The Social Responsibilities of Lawyers: Case Studies (Foundation Press, 1988). See also Robert Eli Rosen, ‘Ethical Soap: LA Law and the Privileging of Character’ (1989) 43(5) University of Miami Law Review 1229 (this is an excellent discussion of the use of TV shows and popular culture for ethics teaching and the limitations of using only short hypothetical scenarios to explore issues of ethical character). Finally, see the wide range of general moral scenarios provided by The Ethics Centre (Web Page) <https://ethics.org.au/consulting-and-leadership/ethi-call/>. are appropriate for this purpose. Remember that reflection on the scenarios is in itself both the process and the objective, and that there is rarely a ‘correct’ answer. The discussion itself tends to raise the various competing values at stake.
4. Consider any rules of conduct, legislation and case law that apply to the scenario, and revisit the choice of ethical approach with which you feel most comfortable. Note any differences between what the ethical rules and law say should be done in the scenario and what the different ethical approaches say should be done.
5. Consider how you might act consistently with your ethical preferences, when the issues in the scenarios come before you in real life.
The issue of child abuse has a very high profile in Australia. The media frequently covers incidents of the injury or death of young children at the hands of family members and institutions. In their work, lawyers may be privy to information that relates to the abuse of a child. This is likely to be information received from a client about a perpetrator or victim and therefore subject to the legal and ethical duty of confidentiality. Confidentiality could be described as one of the ‘core’ values of the Australian legal profession and, despite some policy concerns that question the utility and justice of strict confidentiality, it remains undeniably crucial as a linchpin of common law systems of legal representation. Consider again the scenario from Chapter 2, which raises many of the issues we have discussed concerning values and rules and professional conduct:
You are acting for a mother of three small children in a divorce and intervention order matter. Your client has previously shown you some old photographs of bruises and marks on the children that she claims were inflicted not by their father but by her new boyfriend.
One of the children now has blurred vision. Your client now instructs you to stop all legal proceedings as she intends to return to the children’s father with her children. You believe the children will be at risk if this happens but your client tells you, as she leaves, to do nothing.28 Adrian Evans and Josephine Palermo, ‘Australian Law Students’ Perceptions of Their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2002) 5(1–2) Legal Ethics 103, 115, 114.
1. What are your reactions to the scenario? Have you seen anything or heard of anything similar in your work experience environments or those of your friends that you are willing to outline in general terms? What were your reactions to those events?
2. In reflecting on your decision about what to do here, which of the ethical approaches discussed in this book is most attractive to you? Does this choice ‘fit’ with the number you have identified for different ethical preferences? If not, why does there appear to be a difference? How would you answer the question posed in this scenario?
3. Would you break client confidentiality and inform the relevant welfare agency of your fears for the safety of the child?
4. If you thought that a report to the welfare authorities would result in an investigation (into the breach of confidence) by the legal professional regulator, would you still proceed and make the report?
5. Would your answers be different if, upon later, more thorough questioning of your client, you discovered that your client has an old history of drug abuse and was not, in the past, always reliable in what she said?
6. ASCR r 9.1 provides:
A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not … a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice …
ASCR r 9.2 provides that lawyers do not have to maintain confidentiality where the practitioner discloses information in circumstances in which the law would probably compel its disclosure, or the disclosure is for the sole purpose of avoiding the probable commission of a serious criminal offence, or for the purpose of preventing imminent serious physical harm (our emphasis) (as discussed in Chapter 4).
Does the ASCR exception affect your choice as to what to do in this scenario? Does it change your preferred ethical approach? Do you think the rule, together with its exception, reflects an appropriate ethical approach to this issue?
Case study 11.2 raises a different sort of values conflict.
You have been working long hours at a new law firm for over a year now, in an effort to establish yourself as a competent and willing employee. Your (life) partner was happy to support you in this at first but has started to express concerns that you are overworking and burning yourself out. They have also noted that you are often so tired when you actually go out together on the rare occasion during the week (to a play or concert), that it’s hardly worth the effort. You sense that the relationship could be on rocky grounds because of these issues: you both want to have children, but your partner says they need to be sure that you will take on your fair share of child raising.
You agree with your partner that you are getting burnt out, and you notice that you’re enjoying work less as a result. You’re also a bit worried about missing important issues in a case because you’re worn out. You have promised your partner that you’ll turn over a new leaf, starting with a long weekend away and then a conversation with the firm’s managing partner. You have booked lovely accommodation and promise your partner that you’ll be home early so you can avoid some of the holiday traffic.
At 3 pm on Friday a firm partner (Bill Shelford) asks to see you. Shelford explains that a colleague with carriage of a large litigation matter has been pulled off the file at the client’s request. Since you have proven your mettle, the file is being transferred to you. Shelford tells you that you’ll need to spend the weekend getting up to speed on the file, ready for a meeting with the client on Tuesday. The client is very demanding, and the firm can’t afford to lose it. The firm will provide any support you need.
1. What values are in conflict here?
2. Are there any rules or principles of professional conduct relevant to the situation?
3. Assume that you decide that the most important thing to you is to keep your promise to your (life) partner and go away with them for the weekend. However, you do not want to lose your job or the firm’s good opinion. You decide to have a conversation with Shelford, using a GVV approach (see Chapter 1). (You might have this conversation immediately, or ask him if you can come to see him in 15 minutes or so.) You consider:29 Vivien Holmes, ‘“Giving Voice to Values”: Enhancing Students’ Capacity to Cope with Ethical Challenges in Legal Practice’ (2015) 18(2) Legal Ethics 115, 130.
Whose interests are affected;
What is at stake for the key stakeholders;
Whether there is anything making you disinclined to have this conversation with Shelford, and, if so, how you might reframe the issue so that you feel more likely to speak up, keeping in mind your values;
What might happen if you do not speak up in this situation and how this might affect you, your partner, the firm, the client; and
Whether there are alternative ways of approaching this issue (that is, the work that needs to be done on the file) that might satisfy all the stakeholders.
Practise the conversation with a colleague. Remember that having had a practice conversation makes it more likely we will speak up in a similar ‘real-life’ situation.
As will be clear throughout this book, we believe it is important that lawyers are aware of their values and of what really motivates them, and that they regularly reflect on these matters in their practice of law. This chapter explores the links between values and wellbeing, noting that lawyers who are intrinsically motivated by work that they value and enjoy are more likely to be happy (mentally well) and ethical. It also provides readers with a tool to help clarify their values.
As we have seen, legal practice serves up a proportion of clients whose objectives, strategies and tactics are morally questionable. Sometimes clients are just difficult to deal with or to understand. All clients are entitled to competence and care from their lawyers. Lawyers will be much better placed to represent their clients professionally, and to deal well with the ethical challenges arising from the pressures of practice, if they have a clear sense of their values and motivations and a sound understanding of the ethical underpinnings of legal practice. The question for the reader is, therefore: have you, in reading this book, developed a stronger sense of what might be important to you if you work as a lawyer, and of the ethical context of legal practice in Australia? If so, have you considered how you might act on these insights throughout your professional (and personal) life?
1 As discussed in Chapter 5, McMahon subsequently represented Andrew Chan and Myuran Sukumaran, drug traffickers on death row in Indonesia.
2 See, eg, the Myers-Briggs Type Indicator (‘MBTI’), a psychological categorisation instrument developed from the work of the Swiss psychologist and psychiatrist Carl Jung (1875–1961): see Isabel Briggs Myers and Peter B Myers, Gifts Differing: Understanding Personality Type (Davies-Black, first published 1980, 1995 edn).
3 See, eg, Stephen L Pepper, ‘Lawyers’ Ethics in the Gap Between Law and Justice’ (1999) 40 South Texas Law Review 181; Stephen L Pepper, ‘Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering’ (1995) 104 Yale Law Journal 1545; Stephen L Pepper, ‘The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and Some Possibilities’ (1986) 11 American Bar Foundation Research Journal 613; W Bradley Wendel, ‘Civil Obedience’ (2004) 104 Columbia Law Review 363. Alice Woollley, ‘Is Positivist Legal Ethics an Oxymoron?’ (2019) 32(1) Georgetown Journal of Legal Ethics 77. See also Daniel Markovits, ‘Legal Ethics from the Lawyer’s Point of View’ (2003) 15 Yale Journal of Law and the Humanities 209.
4 See W Bradley Wendel, ‘Pluralism, Polarization, and the Common Good: The Possibility of Modus Vivendi Legal Ethics’ (2021) 131 Yale Law Journal Forum 89.
6 Donald Nicolson and Julian Webb, Professional Legal Ethics: Critical Interrogations (Oxford University Press, 1999); David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988)
7 Molly Townes O’Brien, Stephen Tang and Kath Hall, ‘Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum’ (2011) 21(2) Legal Education Review 149; Melanie Poole, The Making of Professional Vandals: How Law Schools Degrade the Self (Research Paper No 12–13, College of Law, Australian National University, 6 June 2011).
8 Luke Harding, ‘Panama Papers Source Breaks Silence Over “Scale of Injustices”’, The Guardian (online at 6 May 2016) <https://www.theguardian.com/news/2016/may/06/panama-papers-source-breaks-silence-over-scale-of-injustices>. See also International Consortium of Investigative Journalists and Elise Worthington, ‘Panama Papers: Why “John Doe” Risked Their Life for the Mossack Fonseca Leak’, ABC News (online at 5 April 2016) <http://www.abc.net.au/news/2016-04-05/why-the-panama-papers-mossack-fonseca-leaks-really-matters/7300262>.
9 Hugh Brayne, ‘Learning to Think Like a Lawyer: One Law Teacher’s Exploration of the Relevance of Evolutionary Psychology’ (2002) 9(3) International Journal of the Legal Profession 283, 301. In contrast to our hopeful view of lawyers’ autonomy, consider Markovits’s argument that there is a sense in which lawyers can’t make those choices – they are forced by their role in helping apply the law to be ‘unethical … due to historical forces beyond their control’: see Markovits (n 3) 293.
10 Brayne (n 9) 298, quoting Daniel Goleman, Emotional Intelligence: Why It Can Matter More Than IQ (Bloomsbury, 1996) 53.
11 Brayne (n 9) 298. See also Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1983).
12 This section draws on Vivien Holmes, ‘Values: The Flip Side of the Well-Being Coin’ in Caroline Strevens and Rachael Field (eds), Educating for Well-Being in Law: Positive Professional Identities and Practice (Routledge, 2019) 27.
13 Kathryn E Williams, Joseph Ciarrochi and Patrick CL Heaven, ‘Relationships Between Valued Action and Wellbeing across the Transition from High School to Early Adulthood’ (2015) 10(2) The Journal of Positive Psychology 127, 127. The authors explain that subjective wellbeing (wellbeing) has an affective component (the net balance between someone’s positive and negative affect) and a cognitive component: at 132.
14 Lawrence S Krieger, ‘The Most Ethical of People, the Least Ethical of People: Proposing Self-Determination Theory to Measure Professional Character Formation’ (2011) 8(2) University of St Thomas Law Journal 168, 170.
17 Tim Kasser and Richard M Ryan, ‘Further Examining the American Dream: Differential Correlates of Intrinsic and Extrinsic Goals’ (1996) 3(22) Personality and Social Psychology Bulletin 280; Tim Kasser, ‘Materialistic Values and Goals’ (2016) 67(1) Annual Review of Psychology 489.
18 Yuval Feldman, ‘The Complexity of Disentangling Intrinsic and Extrinsic Compliance Motivations: Theoretical and Empirical Insights from the Behavioural Analysis of Law’ (2011) 35 Washington University Journal of Law and Policy 11, 12. As Feldman writes: ‘Extrinsic motivation is linked to actions that are driven by external commands or incentives. Conversely, intrinsic motivation is found when the behaviour is chosen from within the individual, usually out of a sense of moral or civic duty’ (at 12).
19 Lawrence S Krieger and Kennon M Sheldon, ‘What Makes Lawyers Happy? A Data Driven Prescription to Redefine Professional Success’ (2014) 83(2) George Washington Law Review 554.
23 This section draws on and modifies material originally published in Adrian Evans and Josephine Palermo, ‘Preparing Australia’s Future Lawyers: An Exposition of Changing Values Over Time in the Context of Teaching About Ethical Dilemmas’ (2006) 11(1) Deakin Law Review 103; Adrian Evans and Helen Forgasz, ‘Framing Lawyers’ Choices: Factor Analysis of a Psychological Scale to Self-Assess Lawyers’ Ethical Preferences’ (2013) 16 Legal Ethics 134. See also Richard Moorhead et al, ‘The Ethical Identity of Law Students’ (2016) 23 International Journal of the Legal Profession 235.
24 See generally Adrian Evans and Josephine Palermo, ‘Zero Impact: Are Lawyers’ Values Affected by Law School?’ (2005) 8 Legal Ethics 240; JD Droddy and C Scott Peters, ‘The Effect of Law School on Political Attitudes: Some Evidence from the Class of 2000’ (2003) 53 Journal of Legal Education 33.
25 Andrew M Perlman, ‘A Career Choice Critique of Legal Ethics Theory’ (2001) 31 Seton Hall Law Review 829.
27 Other resources include: the scenarios in the Australian Lawyers’ Values Study in, eg, Evans and Palermo (n 24); Debra Lamb, ‘Appendix: Case Studies’ in Stephen Parker and Charles Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues (Clarendon Press, 1995) 237 (case studies collected from interviews with Australian lawyers about their real experiences); Philip B Heymann and Lance Liebman, The Social Responsibilities of Lawyers: Case Studies (Foundation Press, 1988). See also Robert Eli Rosen, ‘Ethical Soap: LA Law and the Privileging of Character’ (1989) 43(5) University of Miami Law Review 1229 (this is an excellent discussion of the use of TV shows and popular culture for ethics teaching and the limitations of using only short hypothetical scenarios to explore issues of ethical character). Finally, see the wide range of general moral scenarios provided by The Ethics Centre (Web Page) <https://ethics.org.au/consulting-and-leadership/ethi-call/>.
28 Adrian Evans and Josephine Palermo, ‘Australian Law Students’ Perceptions of Their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2002) 5(1–2) Legal Ethics 103, 115, 114.
29 Vivien Holmes, ‘“Giving Voice to Values”: Enhancing Students’ Capacity to Cope with Ethical Challenges in Legal Practice’ (2015) 18(2) Legal Ethics 115, 130.