LAW7403 - Ethics and Professional Responsibility

Module overview

1. The Profession

In this Module you will examine the relevant legislation and resources that you will use throughout this Unit. You will become familiar with the relevant tools and be encouraged to assemble them in a form that you will readily identify with in legal practice. For almost 200 years, lawyers have been considered by others and themselves to be "professionals". In fact, the practice of law is known as "the legal profession". By being so identified, lawyers have been granted certain privileges that come with the notion of a profession. The present structure of the legal profession in Australia has its foundations in the early development of Australia’s history. Present professional structures have a profound influence on the ethical behaviour of lawyers. These structures also determine how the profession exercises power and control over its members.

The main reasons for maintaining the control and regulation of lawyers by lawyers are

• The service ideal
• Lawyers have traditionally set a high standard and this standard has been maintained by disciplining members
• Non-lawyers cannot understand the applicable proper standards of the profession
• The ideology of the rule of law – that government control and regulation would interfere with lawyers doing their work properly and protecting their clients’ rights.

2. Professional Ethics

In this Module you will explore the principles that are fundamental to a lawyer’s duty both to the court and to the client and then consider the practical application of these duties. Lawyers are officers of the court. By virtue of this status they owe "divided loyalties", duties to both the client and the court. In respect of the court the principal duty is to act with frankness, candour and honesty. The cardinal rule is that a practitioner must not knowingly make a misleading statement to a court on any matter. Where there is a conflict between a practitioner’s duty to his/her client and to the court, it is the practitioner’s role in the administration of justice that requires the latter to prevail.

With regard to the practitioner’s duty to the client, the case law and professional rules use words such as care, skill, diligence, competence, honesty, honour, integrity, probity and trustworthiness. These traits are directed at ensuring that the practitioner does all in his or her power to protect the interests of the client and in so doing conducts each case in a manner most advantageous to the client.

3. Disputes, Complaints and Disciplinary Processes

In this Module you will look at the processes and procedures that are prescribed by the relevant regulatory regime for disciplinary action. The integrity of the profession and its reputation with the public depend in large part upon the maintenance and enforcement of high standards of professional conduct by the profession and those employed in it.

To permit a practitioner to maintain his/her professional status is to hold out to the public that s/he is a fit and proper person to be entrusted with the onerous responsibilities of legal practice. The relevant professional body and/or the court has/have a responsibility to protect members of the public from practitioners who fail to meet the high standards required. Thus a failure by a practitioner to attain and maintain these standards may be visited by appropriate sanctions.