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

3 - The Responsibility Climate: Regulation of Lawyers' Ethics



This chapter considers how the structure and processes of the regulatory systems that govern the legal profession are relevant to lawyers' ethics and behaviour – that is, the significance of ‘institutions’ for lawyers' ethics. Traditionally, as we shall see, the legal profession self-regulated on the basis of blind confidence that any misbehaviour by lawyers was an individual anomaly, while the culture and practices of the profession as a whole were ethical. Most lawyers probably spend more time thinking about their personal ethics than the way the legal profession as a whole is structured and regulated. But the ethical character of lawyers' practices does not depend on personal factors alone. In practice, personal ethical decisions will either be supported or undermined by the surrounding ‘institutional’ ethical culture and processes in which they are embedded. Personal ethics will be influenced by institutional constraints such as who sets and enforces the rules that govern the legal profession, what ethical and conduct issues the rules address, what values are represented in what the rules say, and whose interests are promoted and whose interests are ignored in those rules – those of lawyers, clients, the community or the profession?

In this chapter we consider two principal ways in which the ethics demonstrated by the legal profession as a whole are likely to impact on lawyers' individual and personal ethics: First, we consider the ethical dimensions of different models of regulation of the legal profession – self-regulation, co-regulation and independent regulation.

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Recommended Further Reading
Dal Pont, G E, Lawyers' Professional Responsibility (Lawbook Co, Pyrmont, NSW, 3 edn, 2006) ‘Ch 1: The Concept of Professional Responsibility’ and ‘Ch 24: Disciplinary Procedures’.
Reid Mortensen, , ‘Interest on Lawyers’ Trust Accounts' (2005) 27 Sydney Law Review289.
Donald Nicolson, and Julian Webb, , Professional Legal Ethics: Critical Interrogations (Oxford University, Oxford, 1999) ‘Ch 4: The Regulatory Context – Ethics and Professional Self-Regulation’.
Christine Parker, , Just Lawyers: Regulation and Access to Justice (Oxford University Press, Oxford, 1999) ‘Ch 6: Competing Images of the Legal Profession – Competing Regulatory Strategies’ and ‘Ch 7: Renegotiating the Regulation of the Legal Profession’.
Deborah Rhode, , In the Interests of Justice: Reforming the Legal Profession (Oxford University Press, New York, 2000) especially ‘Ch 6: Regulation of the Profession’.
Peter, A Sallmann and Richard, T Wright, Legal Practice Act Review: Issues Paper (Victorian Department of Justice, Melbourne, 2000).
Peter, A Sallmann and Richard, T Wright, Legal Practice Act Review: Discussion Paper (Victorian Department of Justice, Melbourne, 2001).
David Wilkins, , ‘Who Should Regulate Lawyers?’ (1992) 105 Harvard Law Review799.