Introduction: ethics and lawyering
In this third edition we return to and strengthen our concept of underlying lawyers’ ‘types’, as a way of explaining why good ethical decisions involve not just the application of a legal framework – such as the professional conduct rules and case law – but also a working understanding of moral philosophy, otherwise known as general morality. In prior editions, we showed how an individual lawyer's preference for a particular type or approach to making ethical decisions (for example, adversarial or zealous advocacy) influenced their thinking about ‘the right thing to do’ in any particular situation. That approach seems to be helpful to the law students and new lawyers whom we encounter. But times are changing.
Legal practice is becoming more difficult, both financially and in terms of lawyers’ personal stress levels. Some medium sized and many smaller firms are operating only at the margins of profitability. Artificial intelligence technology and globalised outsourcing of legal tasks are steadily reducing the number of entry-level legal jobs, and lawyers appear to be more obviously under sustained mental health pressure. And yet new lawyers are adaptable and many are optimistic. Whether in firms, corporations or government, lawyers everywhere are realising that their capacity to truly serve complex clients and complex scenarios, as well as make a living, depends on an understanding of social forces beyond legal practice and the capacity to think through ethical obligations.
It is no longer realistic, if indeed it ever was, for a lawyer to practise without regard to major social and economic trends, particularly those that are reflected in political policy. Foremost among these, in our opinion, is the emerging shift away from economic neo-liberalism, under which much lawyering has expanded for five or more decades, and towards a slow recognition that sustainable legal practice is becoming a lower-growth phenomenon than we have been used to. We are persuaded that less growth and more ethics is the sustainable future for lawyering, and is needed in a deteriorating climate and biosphere, if there is to be economic, social and cultural justice in the decades ahead. Our position is of course a highly value-laden position – and will probably be contested – but it does inform our choice to include, for example, a short section on ‘earth lawyering’ in this chapter, and to introduce similar elements into the discussion on corporate lawyers in Chapter 9.