The ethics of both corporate and government lawyers are critically important to the proper functioning of democratic societies. Both groups advise and act for powerful clients: corporations are amongst the most powerful actors in our society because of the potentially far-reaching impact of their activities; governments have ‘powers and obligations that far exceed those of the normal citizen’. In this chapter, we discuss the ethical responsibilities and challenges facing lawyers who act for these clients. We focus predominantly on corporate lawyers, but then turn our attention to lawyers working in government. While government legal work may seem a far cry from the work of corporate lawyers, in fact in-house corporate and in-house government lawyers face some similar challenges and opportunities.

In this introductory chapter, we first provide an overview of the whole book and discuss some global issues affecting legal practice and lawyers’ ethics. We then explore insights from general morality as an underlying framework for the four approaches to lawyers’ ethics explored in Chapter 2. This framework compensates, to some extent, for the lack of an explicit statement of values in our current rules of professional conduct. We consider the professional imperatives for ethical action (legal and cultural norms) and the ethical decision-making process, including the skills we need to put our ethics into action.

Lawyering in the 21st century is a complex mix of skills, knowledge, experience and ethics. While all these are obviously important for successful practice, it is the ethical zone that ultimately defines reputable lawyers and separates them from those who are merely successful in financial terms. Reputation is an elusive concept and hard to analyse in a short introduction. But one vital element of reputation is the notion of sound ethical judgement – the capacity of a lawyer to understand and choose wisely between contrasting ethical frameworks before making a difficult decision. In this task, it is vital to appreciate that there are several possible approaches to legal ethics. In this chapter, we explore those different approaches and explain why it is frequently appropriate to assess all alternatives for their possible impact.There are four main strands of ethical reasoning or considerations specific to lawyers in the context of Australian legal institutions: adversarial advocacy, responsible lawyering, moral activism and ethics of care. These four types are set out in this book as ideals, and we emphasise what is distinctive about each approach.

Lawyers’ fees are one of the main causes of complaint by clients and of continued public concern about the ethicality of the profession. Charging ‘fairly and reasonably’ and in compliance with the detailed legislative requirements imposed on a practitioner can be tricky. Even the most honest and conscientious lawyers may have trouble explaining fees to clients and controlling their increase. Organisational pressures and adversarial approaches can lead to questionable billing practices and place pressure on individual lawyers to behave unethically. This chapter begins by explaining the most common approaches and their ethical pitfalls. There is no one way of billing that is universally agreed to be free from risk of abuse. The predominance of an ethical approach of adversarial advocacy can also exacerbate costs to clients and diminish access to justice. The legislative requirements of costs disclosure are discussed later in the chapter. We argue that ethical billing practice requires much more than the specific disclosures legally required.

At the start of this book, we introduced four ways of thinking about ethical behaviour for lawyers. Zealous, client-focused lawyering – adversarial advocacy – was contrasted with lawyering that counterbalances client advocacy with upholding the responsibilities and duties of citizens to society – responsible lawyering. A third approach, moral activism, sees the ethical duties of lawyering as being not so much in vigorously asserting clients’ rights, or the rule of law, as in actively doing one’s best in the interests of justice. Finally, an ethic of care sees the ethical virtues of all three of the preceding approaches as overrated and emphasises instead the importance of caring for and respecting the needs and moral aspirations of each person with whom the lawyer may come in contact, as well of themselves. In each of the previous chapters we have examined how the values represented by the different approaches would apply to certain situations and contexts that arise in legal practice. In this chapter we examine the significance of personal values awareness for lawyers’ ethics. The book concludes with a suggested method for self-assessing one’s ethical type/preference.

We are now in the Anthropocene, a time in the earth’s four-billion-year history when human activities are affecting the planet to such an extent that humans have become a ‘significant geological force’. The risks facing humanity also challenge the rule of law. Ideally, law operates to help keep a society stable, peaceful and ordered. Since law is ‘the principal means of implementing public policy’, law must evolve to play its part. Lawyers have a key role to play in assisting that evolution, and the ethics that govern lawyers’ work will play a large part in determining its success. This chapter focusses on the work of lawyers in addressing climate change and environmental damage. Such work raises important issues about lawyers’ role generally and the values and ethics underpinning that role. In this chapter we consider how the different ethical approaches (adversarial advocacy, responsible lawyering, moral activism and ethic of care) are informing lawyers’ actions on behalf of the planet. Of course, many lawyers will draw from several ethical approaches in their work. Likewise, all four approaches can support efforts at law reform, which we discuss later in the chapter.

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. In this chapter we consider ways in which the ethics demonstrated by the legal profession as a whole are likely to affect lawyers’ individual and personal ethics. We begin by discussing how our current approaches to regulating the legal profession might, or might not, embody and engender the values that should characterise legal practice. We then focus on the ‘law of lawyering’ – rules and regulatory regimes that have been created to apply specifically to lawyers under the legislation and case law governing the legal professions of each of the States and Territories. The next section provides a brief history of the development of Australian legal professional regulation, before contrasting this with a different regulatory approach that sees market competition as the fairest and most efficient form of professional regulation.

As described in previous chapters, the touchstone of lawyers’ professional obligations to their clients are confidentiality and care. These duties can be understood as key elements in a relationship of trust and loyalty between client and lawyer. This chapter is chiefly concerned with this relationship of loyalty, and how it can be strained by, or overlooked because of, conflicting or competing interests and duties. The final part of this chapter traces how the different conceptions of the lawyer’s role might produce diverse legal principles, such as whether loyalty is or is not imposed beyond the end of legal relationship. As a matter of professional ethics, there are differing views about whether to allow certain conflicts to arise and be managed by the lawyer or law firm, and whether such management of conflicts should be done with or without client consent.