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  • Print publication year: 2007
  • Online publication date: June 2012

2 - Alternatives to Adversarial Advocacy

Summary

Different Approaches to Lawyers' Ethics

There are four main strands of ethical reasoning or considerations available for lawyers in the context of Australian legal institutions: adversarial advocacy (discussed in the previous chapter); responsible lawyering; moral activism; and ethics of care. (Table 2.1 sets out a summary of the four approaches.) These four approaches are reflected in applied ethics scholarship and in the commonsense ‘folk practices’ of lawyers. Each emphasises a different value (or bundle of values) that lawyers could or should serve in legal practice. These four approaches are set out in this book as ‘ideal types’ that emphasise what is distinctive about each approach. However the authors of this book believe that in general the four different approaches tend to complement one another. It would be over-simplistic to seek to brand most individual lawyers or applied legal ethics scholars as following one approach or another. In many situations all four approaches will lead to agreement on the right thing to do. In some situations, the application of the considerations mandated by more than one approach might temper and improve the way in which we might have approached a situation had we applied only one approach. In other situations, careful analysis will show that some ethical considerations should carry more weight than others because of the surrounding circumstances. One objective of this chapter and the previous one is to set out the justifications for the four different types of ethical considerations so that it is clear what assumptions each makes about the circumstances in which it should apply.

Recommended Further Reading
Allegretti, Joseph, ‘Rights, Roles, Relationships: The Wisdom of Solomon and the Ethics of Lawyers’ (1992) 25 Creighton Law Review1119.
Luban, David, Lawyers and Justice: An Ethical Study (Princeton University Press, Princeton, 1988).
Pepper, Stephen, ‘The Lawyer's Amoral Ethical Role: A Defense, A Problem and Some Possibilities’ (1986) American Bar Foundation Research Journal613.
Charles Sampford and Sophie Blencowe, ‘Educating Lawyers to be Ethical Advisers’ in Economides, Kim (ed), Ethical Challenges to Legal Education and Conduct (Hart Publishing, Oxford, 1998) 315; summarised in Sampford, Charles, ‘Educating Lawyers to be Ethical Advisers’ (1999) 19 Proctor 19.
Thomas, L Shaffer and Robert, F Cochran, Lawyers, Clients and Moral Responsibility (West Publishing Co, St Paul, Minnesota, 1994).
William, H Simon, The Practice of Justice: A Theory of Lawyers' Ethics (Harvard University Press, Cambridge, Massachusetts, 1998).
Wendel, W Bradley, ‘Professionalism as Interpretation’ (2005) 99 Northwestern University Law Review1167.