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23 September, 2009  
The Good Samaritan

Attorney General McClelland is barking up the wrong tree … Lawyers have not done themselves a disservice … Lack of clarity and gobbledegook suit them down to the ground … Ethical rules are about legitimising bad behaviour … Tulkinghorn lets fly

imageLawyers have subjected themselves to a dizzying array of regulatory, ethical and disciplinary regimes, none of which work very well.

On September 17 the federal AG Robert McClelland said:

The legal profession should be setting an example in the [consumer protection] area, not falling behind the consumer protection mechanisms that currently exist in other industries.

On September 18 he said that lawyers had done themselves a disservice:

“They have created that uncertainty, lack of clarity and regulatory gobbledegook that is spewed out to clients and has been … a disincentive for them to use lawyers.”

Lawyers have not done themselves a disservice at all.

Invariably they don’t want to protect their clients against excessive fees at all.

Lots of them are also in the business of helping crooks and the last thing they, or their law firm partners, or their clients want, are ethics regimes that work.

imageBad clients pay better than good.

In an article entitled The Morals and Politics of Adversary Lawyers Professor Daniel Markovits of Yale Law School (pic) said:

“The duties attached to their professional roles require lawyers to lie, to cheat, and to abuse.”

In a footnote Markovits added:

“These are tendentious descriptions of what lawyers do, and they are meant to be.”

He justified his comments in detail and said:

“All these things lawyers must do are, of course, ordinarily immoral.”

The lying part of a lawyer’s job is entertainingly portrayed in the movie Liar Liar, where a lawyer is suddenly afflicted by a condition that forces him to always tell the truth.

imageOn the other hand, lawyers can’t rip clients off unless the clients trust them first.

A thick, impressive looking book emblazoned with the words Legal Ethics is a good start.

The contents, however, which clients rarely read, will be less about mandating good behaviour and more about legitimising bad behaviour.

This is because the lawyer role (excluding criminal prosecutor lawyers) calls for lawyers to do a lot of lying cheating and abusing.

The provisions of the criminal law that proscribe such activity have to be negated somewhere and what better place than in a “code of ethics”?

A code of legal ethics does not force lawyers to operate on moral high ground, although our lawyers like to convey that impression, a pose that they share with Californian realtors.

So while, for example, the NSW Law Society’s Professional Conduct and Practice Rules mention “Frankness in court” (high moral ground) in big print, the small print authorises lawyers to conduct long “not guilty” trials for clients who have admitted their guilt (Rule A33).

It is in the profession’s financial interests that such a rule exist.

Rule A32 says that if clients confess to having lied to the court and the case has not yet been finally decided, then, unless the client consents, the lawyer, “must not otherwise inform the court of the lie or falsification”.

It is an ethical requirement in NSW that solicitors advance the financial interests of the profession.

The Law Society’s Statement of Ethics (a brief document setting out nine general principles proclaimed on May 28) declares:

“We act together for the mutual benefit of our profession.”

As with all ethical principles, it is good to create a countervailing principle to use if the first one gets criticised, so the “Statement of Ethics” also sets out another principle:

“We advance our clients’ interests above our own.”

Jennifer Schultz Reed of the Washington College of Law says in The De-Evolution of American Legal Ethics ...

“Scholars posit that the evolution of the subject of legal ethics has ironically helped the legal profession along a path of ‘demoralization’, where lawyers have actually become less ethical and less prone to inculcate their personal morals into their professional conduct.”

imageSo perhaps the image one should have of legal ethics is best depicted in The Simpsons TV series where Homer is shown evolving from the sea to his modern day form, and he crosses paths with Moe, who is evolving backwards.

One could develop a Moe Szyslak theory of legal ethics, where a de-evolutionary process resulting in ever worsening real ethics on the ground is accompanied by an expansion of legal ethics rules, ethics conferences and (self) disciplinary schemes.

Ethical talking is much more fun than ethical doing.

In 1973 Princeton psychologists John Darley and C. Daniel Batson conducted an experiment.

They got 40 divinity students (they started off with more, but there was attrition) to prepare a sermon on the parable of The Good Samaritan.

Subsequently, they were told that the sermons would be filmed in a building a short distance away and that they now needed to go there, one by one.

On the way each met a man (actually an actor) bleeding and in pain, and obviously in need of assistance.

More than half the students walked straight past him (in some cases, actually stepping over him).

In a follow-up study, the researchers now told the students to hurry over to the second building, which resulted in assistance rates falling further, to barely 10 percent.

The federal AG’s comments will no doubt be referred to in lots of future ethical talkfests.

They will be followed by the creation of more uncertainty, lack of clarity and regulatory gobbledegook.

But not much improvement, for consumers, on the ground.