Legal Ethics and Professional Regulation Flashcards
What are virtue ethics?
Ethics to do with being a good person - improving the general qualities of a person
What is utilitarianism?
Maximising happiness for the most amount of people
What are the two forms of utilitarianism?
Act utiliarianism - maximise happiness in that particular scenario. Rule utilitarianism - maximise happiness with with wider rules in mind.
What is deontology?
Certain acts are inherently wrong and therefore to apply them would be immoral, irrespective of the situation. Devoid of consequences
What is the difference between normative and applied ethics?
Normative = wider principles that guide human conduct Applied = ethics within a particular field (e.g. med ethics)
What were the results of the Trolley Problem?
90% of people would flick the switch but only 10% of the ppl would throw the fat man
What are four approaches for lawyers to behave?
Adversarial advocate, responsible lawyering, moral activism and ethics of care
What is adversarial advocate?
The interests of the clients are paramount at the expense of justice and the wider community.
E.g. Tobacco litigation - Clayton Utz
Is an immoral and amoral lawyer the same?
An amoral lawyer is one that does not evaluate the morality of the client whereas an immoral lawyer is actively unethical.
What is responsible lawyering?
Overriding role as officer of the court and trustee of the legal system - outweighs clients.
What is moral activism?
Lawyers act as agents of justice through law reform + public interest lawyering.
What problems arise with moral activism?
It can lead to the imposition of one’s own morality onto those of clients - esp when counselling clients with the right moral choice.
What is ethics of care/co-operative approach?
Main priority is to preserve relationships and prevent harm. The client is perceived as a whole person and more important than just the law.
Identify some contemporary issues that characterise the modern legal profession.
The business-profession dichotomy, lawyers as servants of the public good, the monopolisation of legal practice, reform of legal education and increased diversity.
How was the legal profession regulated in the late 19th century to thwart it from becoming too business orientated?
The establishment of the Bar Association = retained professional codes + penalties for violations of it.
What factors have contributed to the business-profession dichotomy in the 21st century?
Increase in the size of firms, geographic expansion, divergence of practice areas and competition.
What remains the public image with respect to their relationship with the public good?
Turned from guardians of the law to prostitutes for gain - the hired gun.
How was the market for legal services regulated previously?
Bar Association - rules of professional regulation - prevented authorised practice of non-lawyering.
Non-lawyer ownership of firms prohibited.
What challenges does the legal market face currently?
- Accessible legal services (relaxing of authorised practice proscriptive to allow Legal Zoom, etc)
- Non-lawyer ownership to allow smaller firms to compete.
- Are paralegals adequately trained to do the work that clients will be charged less for? And is that fair?
What are some criticisms of contemporary legal education?
- Practical skills v Professionalism/Ethics/Theory.
2. Huge fees = drives up legal fees.
What is the impact of Cohen’s formal equality approach with respect to diversity in the legal profession?
It has increased access but minorities and women, still remain underrepresented especially at the top structures.
How is the law of lawyering layered?
Contract, torts, equity, statute, criminal law and professional rules regulate.
How nationalised is the legal professional rules?
Uniform rules in many states but the rules are administered and enforced by each respective jurisdiction
What is the primary source of professional regulation in NSW?
Legal Profession Uniform Law
What is unsatisfactory professional conduct and what section of the Legal Professional Uniform Law does it fall under?
Unsatisfactory professional conduct = falling short of the standard of competence and diligence required of a reasonably competent lawyer - s 296.
It has to be in the lawyer’s dealing with the law.
What can constitute professional misconduct?
- unsatisfactory conduct that involves a substantial or consistent failure to maintain a reasonable standard of competence and diligence.
- Conduct in connection with the law or not, that would deem the lawyer to be not a fit and proper person for legal practice.
How do you determine whether a lawyer is a fit and proper person to practice?
Refer to the expectations for admission or renewal of practicing licence.
How does the complaint process work in NSW?
OLSC can deal with the complaint itself but if serious - refer to either the NSW Law Society or the Bar Association.
What are some disciplinary orders available to regulatory bodies?
Striking off the roll of lawyers, conditions imposed on practice, suspension, fine and reprimand.
