APPROACHES TO LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITY

Question 1

WHAT IS ETHICS

Answer 1

• What is “ethics”?
  › “[T]he study of what is morally right and wrong, or a set of beliefs about what is morally right and wrong”.*
• The difference between “right” and “wrong”
• How do we determine what is “right” and “wrong”?
  › Very subjective.

Question 2

SOURCES OF ETHICS

Answer 2

1. Culture
   › Influences
2. Religion
   › Morality
   › Values
3. Law
   › Acts of Parliament
   › Regulations
   › Codes of Conduct

Question 3

EXAMPLES OF ETHICAL THEORY

Answer 3

1. Utilitarian
   › Morality of an action or rule judged by its consequences
2. Deontological
   › Morality of an action or rule judged by the intent of a decision of action (regardless of the consequences)
3. Virtue ethics
   › An action or rule judged by how it promoted a person’s character.
4. Rights based
   › Morality of an action judged by its respect for basic human rights.

Question 4

ATTRIBUTES OF A PROFESSION

Answer 4

› Although no single definition of a profession attracts universal acceptance, three core attributes commonly surface: special skill and learning, public service as the principal goal; and autonomy or self-regulation

Question 5

ATTRIBUTES OF THE LEGAL PROFESSION

Answer 5

1. Special skill and learning: bachelor/juris doctor and PLT.
2. Public service as the principal foal:
   * Foster (1950) 50 SR (NSW) 149 at 151: A trade or business is an occupation or calling in which the primary object is the pursuit of pecuniary gain. Honesty and honourable dealing are, of course, expected from every man, whether he be engaged in professional practice or in any other gainful occupation. But in a profession pecuniary success is not the only goal. Service is the ideal, and the earning of remuneration must always be subservient to this main purpose.
   * Legal Services Commissioner v Walter [2011] QSC 132 at [19]: There is a palpable difference between carrying on or exercising the profession of law, on the one hand, and carrying on the business of a lawyer, on the other. At least one of the hallmarks of a profession, apart from special skill and learning, is that the profession has public service as its principal goal.
3. Autonomy or self-regulation: reality is that it is regulated now.

Question 6

WHAT IS PROFESSIONAL REPSONSIBILITY

Answer 6

• Gino Dal Pont, Lawyers Professional Responsibility (Thomson Reuters, 7th ed, 2021) 23:
  › It has been judicially observed that it is in the public interest, and for the protection of the public, that the professional activities of lawyers be regulated and controlled more than any other profession or vacation. *
   *Re Bannister (1975) 5 ACTR 100 at 104 per Fox J.

Question 7

WAYS PROFESSIONAL RESPONSIBILITY ARE REGULATED

Answer 7

• Professional self-regulation
  › Providing service and serving the public
• The service ideal
• ideology of the Rule of Law
  › no one is above the law, it applies equally to everyone
• General law
• Statute
• Professional rules and bodies, e.g. Law Council of Australia, Australian Bar Association and Legal Practice Board.