TOPIC

INTRODUCTION TO LEGAL ETHICS

What is Legal Ethics
Why Legal Ethics is important to
Law
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 Topic 1 concept map
This map represents the core concepts that we’ll be covering in this unit, and the relationships between them

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Topic Outline
Study Time
1. Introduction 12 hours
2. What is ethics?
3. Law is not the same as ethics
4. So what is legal ethics?
5. Why is ethics important to the practice of law?
6. Questions for reflection

Learning Outcomes
At the conclusion of this Unit you will be able to:

 Define the concept of ethics in the context of law;

 Compare and distinguish between law and ethics;
 Explain the significance of a Code of Ethics in the Pacific; and,
 Outline three reasons why ethics is important to the practise of law.

Join the Moodle Discussion Group. Read and post your comments
and questions.

Checklist of Activities
To complete this topic you must:

1. Contribute to the Moodle Discussion Group regularly;

2. Study the reading below;
3. Complete the study tasks;
4. Make sure you have read the course introduction thoroughly; and,
5. Answer the reflection questions at the end of the unit.

Readings
• Ross, Y. & MacFarlane, P.; Lawyers' Responsibility and Accountability
(3rd edition) Chapters 1 and 2.

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Introduction
The sad truth is becoming more and more apparent; our profession has
seen a steady decline by casting aside established traditions and canons of
professional ethics that evolved over centuries. ... When we speak of the
decline in "ethical" standards we should not use the term 'ethics' to mean
only compliance with the Ten Commandments or other standards of
common, basic morality. ... A lawyer can [adhere to all these
requirements] and still fail to meet the standards of a true profession,
standards calling for fearless advocacy within established canons of
service".
- William Burger; Ethics and the Law Preface to the South
Carolina Law Review Vol 42 Summer 1991 Number 4)

Surveys tell us that in terms of ethics and honesty lawyers rate towards the
bottom of the scale. Writing in 1991 Geoffrey Hazard Jnr, Professor of Law at
Yale University noted:
Dissatisfaction with lawyers is a chronic grievance and inspires periodic
calls for reform".
- The Future of Legal Ethics, Yale Law Journal No 1 1090 [1991] p.1239
Lawyers have been described as amoral (having an indifference to moral
responsibility), immoral (failing to conform with general standards of ethics and
morals) and greedy.
In this first Topic area we look at what is ethics, what is legal ethics and why is
legal ethics important to the practice of law.

What is ethics?
In general terms ethics is concerned about what is right, fair, just or good. It is
about what we ought to do. Some examples of ethical principles include:

Autonomy: The right to non-interference when making decisions; the right

of a person to make choices as to what is to happen to them, for example
the principle of autonomy would say that you cannot operate on a person
without their consent.
Beneficence: Conduct aimed at the good and well being of others, not
necessarily the individual but also the well being of society at large.
Non-Malfeasance: Above all do no harm.
Justice: Justice as in fairness and equity, for example not discriminating
against a person on the basis of irrelevant considerations; not subjecting a
person to punishment without a fair hearing.

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Ethical dilemmas generally arise because there is a conflict within or between
these principles, for example the individual's right to be represented by the lawyer
of their choice (autonomy) and the right of another individual (who has the same
lawyer) to have previous confidences respected; or the right of an individual to
have a confidence respected (autonomy) and the right of the public to know about
some public risk (beneficence), or the right of a person to a fair trial (Justice) and
the right of a judge or jury to be aware of previous similar convictions of the
accused before deciding his or her guilt or innocence (beneficence).

STUDY TASK 1

Give an example of the application of each of the principles of ethics to the

practice of law; for example an application of the principle of Justice might
be not to refuse to act for a client on the basis that you did not believe or
accept their religious views.

Law is not the same as ethics

Moral [or ethical] obligations are not legal obligations. The two must not
be confused. A great deal of legislative time is taken up in deciding
whether moral obligations should become legal obligations, under what
circumstances, and with what qualifications and exceptions.
- Per Mahoney J in Lowns v Woods (1996) Aust Torts Reports

The fact that a statute is passed by a constitutionally elected parliament gives that
statute legitimacy but it does not mean it is ethical. There are lots of laws that
many would regard as unethical. In the same way, the fact that something is
regarded as unethical does not necessarily mean that it is unlawful. In his book
Understanding Ethics (2nd ed) Noel Preston writes:

Throughout this book we will touch on questions where law and ethics
interface. One might regard abortion as immoral, but in a liberal
democratic society should it be a criminal offence? One might regard the
consumption of certain drugs as harmful and a social evil, but is that
problem best handled in society by making the sale of drugs like heroin
illegal? .... Issues of ethics in the law and the practice of law are
becoming more important in the study of law and preparation of the legal
profession. This should not be a surprise as the attempt to codify society's
requirements for all sorts of social interactions, not least of all in the area
of information technology, is becoming more and more complex. Along
with this trend is the need for those who are considered to be the
administrators of justice in our society to understand the subtleties of the
meaning of "justice". Ethics education of lawyers and ethical reform for
the institution of law remain ongoing priorities for any society aspiring to
be a just society.

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In the South Pacific this link between law and ethics is even more strained due to
the conflict that often exists between what custom or a community regards as
being for their good and well being, and what the law requires of them. This is
especially so in the case of family matters such as marriage, divorce, the
upbringing of children and the resolution of family disputes etc.
There should be a close nexus between law and ethics. A previous Chief Justice
of the United States Supreme Court - Chief Justice Earl Warren - once said "the
law floats on a sea of ethics".

So what is legal ethics?

Legal ethics refers to those principles that regulate the practice and conduct of
those in the legal profession. It is the application of the principles of justice,
autonomy etc in the context of the practice of law. The term 'legal profession' can
be interpreted to mean any lawyer who participates in the administration of
justice whether as a private lawyer, a public lawyer or a legal advisor to a
corporation or agency or government department.
The articulation of these principles is usually found in a Code of Ethics for Legal
Practitioners. In Vanuatu there is no Code - although it is hoped that such a Code
will be in place by the end of this year. The absence of any Code of Practice in
Vanuatu does not mean that there are no ethical rules that bind the lawyer. In the
absence of a Code the court (in this case the Vanuatu Supreme Court) has an
inherent jurisdiction over those who practice law in the jurisdiction. (Nickle v
Westpac Bank Samoa Ltd [2003] WSSC 35). The Court would most likely take
guidance from other Codes for example the International Bar Association Code of
Ethics (see Prescribed Readings) and the common law principles concerning
misconduct. In other jurisdictions in the South Pacific there are Codes of Ethics
or Rules of Conduct.
The most recent set of ethical obligations for lawyers in the region is found in the
2009 Fiji Legal Practitioners Decree and the Rules of Professional Conduct
made under the Decree. These can be downloaded from PacLII

STUDY TASK 2

Read the International Bar Association Code of Ethics. Do you think that
there should be sanctions or penalties included in the Code and are there
any other aspects of legal practice that you think should be included in the
Code?

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Why is ethics important to the practice of
law?
First, because lawyers are integral to the working out of the law and the Rule of
Law is founded on principles of justice, fairness and equity. If the law is
grounded in ethics then lawyers need to behave ethically otherwise the law will
be held in contempt.

Second, lawyers are professionals meaning that lawyers should put public service
ahead of commercial gain and to put what is right ahead of what is expedient. We
will consider this issue in Topic 2.

Third, lawyers are officers of the court and have certain duties to the court. If
lawyers do not behave ethically then the work and credibility of the court is
compromised.

Review Questions
1. What does it mean when people say “Lawyers are amoral”? In what
way could this be a positive characteristic of a lawyer?

2. What did Earl Warren mean when he said that “the law floats on a sea
of ethics”?

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