Lawyers need to think more broadly about ethics than what our professional conduct rules say. Remember, be a gun—but not a gun for hire.
March 2020 seems like a light-year away. It’s when lawyers scurry around to get their CPD (continuing professional development) points for the professional legal year. Lawyers in most Australian jurisdictions need a minimum of 10 CPD points (pro-rata) for the relevant year, which in Victoria runs from April to March of the following year. Again taking the Victorian example, at least one CPD point must be in each of the four areas:
- Ethics and Professional Responsibility
- Practice Management and Business Skills
- Professional Skills
- Substantive Law.
Based on an experiment by Professor Dan Ariely, covered in his book The (Honest) Truth About Dishonesty, crash courses in morality do not seem to have any effect after two weeks. Therefore, if we intend to commit lawyers to a full-course buffet of ethics training, we would need a minimum of 26 CPD points in the ethics component alone every year!
Who guards the guards?
CPD sessions on ethics are run by, well, lawyers. One might argue that self-introspection isn’t the most effective way to learn more about ethics. Furthermore, most CPD sessions on ethics are dull, boring affairs. Not because they should be, but because they mainly involve going through chapter and verse of the professional conduct rules.
There is, of course, a place for this garden variety of ethics CPD. But when every session that you attend is exactly the same—and simply involves a bare recitation of the rules without a frank discussion about the real issues—then it’s not clear how lawyers can analyse their conduct more critically.
What a quandary!
So let’s talk about legal ethics. Properly.
For starters, legal ethics should not be limited to the written words of the professional conduct rules. Just because the written rules do not prohibit something, that it is ipso facto ethical.
In a rare conversation with a friend and fellow lawyer, we discussed how all lawyers should be taking classes in philosophy and ethics. Otherwise, we can only expect strange and perverse outcomes, as you will see below in… the Not Good, the Bad, and the Ugly.
The Not Good
Lawyers, like any other profession that uses time billing, cannot deny that some lawyers inflate their time. With this said, there are many lawyers who are ethical in this respect, so I don’t want you to paint all lawyers with the same brush.
However, we must acknowledge that charging clients by six-minute units is fraught not only because it rewards inefficiency. It creates an inherent conflict of interest given the direct link with profit for the lawyer and the firm. To top it off, we know that many lawyers are sleep-deprived, and the research tells us that there is a direct link between sleep deprivation and dishonesty.
One 2017 research paper looked at the ethical risk and inefficiency of the six-minute unit:
“One survey of young lawyers in New South Wales concluded that ‘billing pressure is pushing many young lawyers to fudge their time sheets. Only 38 per cent of respondents said they always recorded their time accurately, citing billing pressure from senior staff’. It seems from this study that 62% of young lawyers in New South Wales have lied at least once in billing their client. Researchers describe how ‘small’ ethical breaches make future breaches more likely, and more significant breaches become possible due to our ability to rationalise and justify behaviour. The ‘endemic problem’ of long hours reduces lawyers’ resistance to ethical breaches which in turn exacerbates their anxiety in the workplace.
Extreme cases of ethical breach are reported broadly, such as the 2012 case of Legal Services Commissioner v Keddie where solicitors were recording over 24 hours and billing $9000 per client per day. This and several similar cases of senior lawyers acting dishonestly help explain why the reputation of the legal profession is consistently unimpressive, as measured by Roy Morgan who regularly conducts polls to measure Australians’ rating of professions including lawyers for ‘ethics and honesty’.”
— Colin James, “Legal practice on time: The ethical risk and inefficiency of the six-minute unit” (1 June 2017) 42(1) Alternative Law Journal 61.
Putting aside blatant time inflation, there are always grey areas.
Example 1. “I don’t just sing in the shower”
Some lawyers genuinely think of their shower time as a legitimate billable activity if they are “contemplating a case” while attending to their nether regions. Let’s say that this takes multi-tasking to a whole new level.
Example 2. “I worked 30 hours straight”
When a lawyer is clearly working beyond the normal human attention span, they might be physically there but their mind isn’t 100% present. In this case, should there be a 50% discount on fees after the 12th consecutive hour if only half of their brain was working?
It would be good to see more frank discussion about this.
The Bad
One day, a law firm partner decided to present on a controversial topic, #MeToo. Ironically, the presentation took place after a session on legal ethics. The ensuing train wreck was a sight to behold.
The partner starts off by painting a picture that most sexual harassment claimants are vexatious litigants and only interested in money. To drive the point home, the next presentation slide had this image:
Most attendees choke on their coffee by this point.
At this point, a small digression.
Sexual harassment or abuse survivors who seek redress through the courts have a traumatic time proving their cases. The statistics show that juries tend to disbelieve survivors.
In this vein, I recommend Eggshell Skull, a book by an ex-judge’s associate who explains how difficult it is to bring and win a claim.
Now back to our train wreck. The partner went on to explain a strategy on how organisations can protect the accused from reputational damage. At all costs.
Unsurprisingly, the partner faces a barrage of questions at the end from a furious audience, including:
- “What do you think of organisations and their lawyers who aggressively use non-disclosure agreements (NDAs), depriving a person of their legal and human rights?”
- “Should shareholders require public companies to disclose settlement payments made under NDAs?”
- “Given that bullying and sexual harassment is an OH&S issue, do you think that companies should be required to report on a public register the total number of NDAs signed each financial year, so that potential employees know to avoid these companies?” (Like a form of caveat emptor, “buyer beware”.)
- “Don’t you think that taking a person’s complaint seriously, rather than trying to stymie them through legal means, might actually be better for business? Shouldn’t we be aiming for the ceiling in the way we do business, not the floor?”
It was evident that the partner failed to consider all aspects of what was essentially a political movement with legal implications. The partner also conveniently ignored two important facts:
- most claims are genuine and the reality is that most employees who have a claim never come forward, fearing they may lose their job or future opportunities;
- due to the strict defamation laws in Australia, the #MeToo movement will never be as it is in the US. The perceived threat of reputational damage by Twitter hashtag was therefore overstated.
The partner, mobbed by questions and unable to answer them satisfactorily, concluded that “there will always be people with power, and they will use all legal means available to them”.
Needless to say, this infuriated the attendees even more. The partner had to shut the Q&A session down by declaring morning tea in the next room because it was turning into a bit of a circus. Wunderbar!
So, what can we learn from this?
First, empathy is always a good starting point. We should be channeling less of the Simpsons mob (real or imagined) and more of Lord Atkin in the first Torts case from 1932, Donoghue v Stevenson, and the exhortation to “love your neighbour” (as yourself, not in the sense of the #MeToo perpetrator). What this means is that pursuing hard-nosed legal strategies to the nth degree isn’t usually the best way to solve problems.
Second, lawyers should be able to step outside of their “usual mode of business” to objectively assess what is ethical, not necessarily what is permitted by the written rules. Just because you’ve drafted a million NDAs doesn’t mean everyone the world over should be exposed to them. Just because something has “always been done that way” isn’t a good enough reason to do it again. It’s the job of lawyers to counsel their clients, see the bigger picture, and realise that not all solutions are legal. In fact, many aren’t.
The Ugly
Now let’s get to the ugly.
Theranos was a blood-testing company exposed for its fraudulent practices and oppressive legal tactics. At its height, Theranos was a multi-billion dollar company. Now, worth a bagel zero.
Any Australian lawyer who reads the book by investigative journalist John Carreyrou, Bad Blood, will be shocked by the underhand legal and non-legal tactics used by the company to silence the truth. They included:
- the use of NDAs on former employees;
- threats of ongoing legal action to destroy the future job and financial prospects of former employees if they spoke out;
- a lawyer for Theranos accepting company shares instead of legal fees and sitting on the company’s board;
- the use of surveillance cars parked outside of defendants’ homes to terrorise them.
Most lawyers genuinely want to do the right, ethical thing. But the way we’re talking about legal ethics (within the narrow confines of our written professional conduct rules) is far from best practice.
If you’re a fellow lawyer, I encourage you to think more broadly about legal ethics beyond your CPD point and the written rules. Because if you care about perceptions about the legal profession, it matters.