At the Heart of Legal Ethics

Legal ethics, like etiquette, is usually taught as a series of rules. To mitigate their embarrassment our parents taught us: Don’t interrupt; don’t take the biggest slice; offer your seat … There were a lot of rules but I remember being told that at the heart of good manners is respect for others. This made the rules easier to learn and somehow less important. Can the same be done with legal ethics?

Humans have been around a long time. We can easily forget how recent civilisation is. Hand‑crafted spear‑tips have been dated beyond 300,000 years and decorative bracelets to 75,000 years. By contrast, the first permanent human settlements began only after the last Ice Age—about 10,000 years ago. For aeons there had been no agriculture and no domestic herding of animals. Humans wandered in nomadic tribes, hunting and collecting food. The tribe proved the optimal survival system for nomadic humans. It moulded our psyche and social relations.

Then, just after the last Ice Age, the growing of grain began. Grain is a grass seed that ripens simultaneously and can be harvested, the seed staying in the head when the stalk is cut with a sickle. Grain can transported for trade and stored to avert famine.

The invention of grain-growing had a tectonic effect on humanity. With this, and the domestication of herds, the population constraints of nomadic life no longer applied. Grain made permanent settlement possible. Life became more secure and comfortable. Grain led to towns and then to cities, nations and empires. The word civilisation derives from the Latin civis for “city dweller”, as does the word civility. Clay pots were too heavy for nomads but were useful in settlements. Pottery furnaces led to the smelting of metals. The management and trade of grain and animals required accounting which, in turn, led to writing, libraries and the storage and refinement of knowledge.

Grain also created problems. The cities enabled by grain were filled with people from many tribes who were ill‑adapted to living together. Within the nomadic tribes there were distinct taboos and authority structures that had regulated conduct time out of mind. But when you put diverse clans together in a city, two crises arise.

First, rules are needed to regulate human society—but whose? The second is the disturbing existential question—Why should any of these conflicting taboos or authority systems have any ultimate validity?

So, civilisation has produced this dilemma—that whilst we need some ethically‑based code by which to regulate civil society, there is no obvious process by which to frame it. We might hanker for the innocent simplicity of our tribal past but that is closed. If we try to return to some Edenic paradise we do not solve our problems but compound them. The totalitarian experiments of the twentieth century attempted to impose tribal unity on a nation-state but failed catastrophically. Despite our 10,000 years of experience in civilisation, the human psyche still struggles with the complex problem of different people living together in moral and existential uncertainty.

We can’t create a “heaven on earth”—but we have learnt some things. One thing we should have learnt by now is that any durable civil society requires a culture of the rule of law as against the rule of bare power.

The rule of law has these features:

• The laws are established and public, being neither secret nor capricious;

• The laws operate benignly for the general good and not as instruments of tyranny;

• No person is above the law; and

• The law is effective and not detached from life as lived. (Even the Soviet Union had a Bill of Rights!)

The law is not a tyranny by the strong over the weak, for the state is not just the coercive instrument which enforces the law but is itself under the law, its various arms being creatures of the law.

Tyrants hate the rule of law because they don’t need its protection. It only constrains their will. Napoleon, who was to snatch the crown from the hands of a pope and anoint himself emperor, asked, “Do you imagine that I triumph in Italy in order to aggrandise the pack of lawyers who form the Directory?”

The law will always be imperfect as an expression of a moral consensus because there is no moral consensus. Yet a civil society will enjoy better security and prosperity where it follows the rule of law than where it does not. The law does not need to be perfect to be good. Therefore we are morally bound to obey the law even when we believe it to be wrong.

As well as the laws themselves being sound, the rule of law requires a qualified profession to administer the legal process, to advise people as to their position at law, to assist them in gaining access to their rights, and to be judges. But if this class does not operate within a broad culture of integrity and diligence then the law falls into disrepute and much of its benefit is lost.

The impact of the rule of law goes far beyond the judicial process. It permeates the culture of government as well as public, private and commercial society. The Soviet Union was the archetypal failed society and it failed in the rule of law. Under Stalin a prosecutor would procure a confession by torture, pronounce judgment and then, with his own pistol, administer the death sentence. One could survive only by corruption. Informants and secret police pervaded ordinary life to eradicate dissent. Ordinary trust evaporated. Ability merited suspicion, not reward. Membership of the ruling elite carried privilege. Unorthodoxy was punished. The legacy of this period remains.

The tensions that still arise when people from a more “tribal” or “clan” culture enter a “civil” culture were well‑portrayed in Francis Ford Coppola’s 1972 film The Godfather. The movie begins with the words, “I believe in America”, spoken by the owner of a small business who had years earlier emigrated from Sicily. He loved America for the free, open and prosperous society that it had created, and when he came to the country he was determined that his family would embrace its civil culture and be honest, law‑abiding Americans—something he earnestly tried to do, snubbing his tribal leader.

However, his daughter had been violently beaten and disfigured by two young Americans and the judge did not send them to prison. This caused him to lose faith in the civil process and he instinctively turned to the Godfather, the head of his clan, to achieve the justice that the “American way” had denied him.

The Godfather showed that he had earned his position of honour. He was accessible, even taking time out from his daughter’s wedding reception to listen to the grievance. He was honourable, refusing the offer of payment and forgiving the past neglect of rank. He was just. The American boys would be treated as they treated her. He declined the request to kill them. They had not killed the girl.

In another scene, a callous landlord evicts a poor widow from her apartment. She appeals to the Godfather and he quietly insinuates violence to protect her and ensure that the landlord treats her fairly—even generously. Yet the Godfather heads an extensive criminal organisation.

People who have developed the subtle skills needed to survive in a complex tribal society find it difficult, even with the best of wills, to trust civil society. Inexperienced in dealing with it, they suffer disappointment.

Also, clans and families are not just security structures—they provide warmth, identity and social intimacy. By contrast, civil society (even to those culturally attuned to it) seems unfeeling, alienating and bureaucratic. The Godfather’s son, Michael, born into American society, loves his family but prefers to keep out of their world of crime. He is reluctantly drawn into it by the security needs of his clan, his love for them, and his sense of duty to defend them.

The Godfather turns darker. The limitations of smaller clan societies when exported to a mass society become apparent. The clans are not constrained by the rule of law but by the law of the jungle—survival of the strongest. The different families or tribes are in competition for the same resources, the same revenue streams. Because they operate tribally and outside the law these revenue streams are seen by outsiders as criminal—but to the families they are a business like any other. Their loyalties are tribal, not civic.

The competition between the families descends to violence and then to total war, so that the facade of peace is only restored when one family exterminates its rivals and establishes dominance. But this peace is just a lull in the fighting, as the cycle of violence repeats itself in Godfather II and Godfather III. The story evokes the constant inter-tribal warfare that characterised nomadic society.

By contrast, in Australia we have established one of the most successful civil societies in history. Britain had an evolving civil tradition traced back beyond the Norman invasion. That, of course, was far from unblemished. Yet the first settlement at Sydney in 1788, mainly constituted by convicts, was an unprecedented experiment in mass migration, and the founding governor set a high standard in civil administration.

The first civil court case in Australia came when a convict couple, Henry and Susannah Kable, sued the captain of their transport ship for “losing” their possessions on the voyage. Governor Arthur Phillip, sitting as judge, found in favour of the convicts, the ship’s captain being unable to present evidence of their conviction for capital felony which would have barred the action.

When a supply ship foundered, the new Sydney settlement faced starvation and the governor was constrained to make the stealing of food a capital offence. Six marines were charged and convicted under this law and Phillip enforced the death penalty, their martial status being no immunity from the law.

As well as the rule of law, Australia inherited the British religious and class tensions between Protestants and Catholics from centuries of bitter violence. An important incident occurred in Sydney on March 12, 1868, that brought these tensions to a head. It also created something of a watershed in Australian public life.

In 1868, as Queen Victoria’s son Prince Alfred was being feted at a Sydney garden party, an Irish extremist, Henry James O’Farrell, shot the prince in the back with a pistol. An angry mob tried to kill O’Farrell on the spot but they were physically fought off by the police and the Chief Justice, to be arrested and stand trial. The prince survived—else the incident would be better known.

Like most terrorist attacks, this one was intended to perpetuate deep historic tensions and intensify the violence between Catholics and Protestants that had blighted Ireland. But curiously, the attack had the opposite effect. The next day public meetings were spontaneously called around the country and both Protestant and Catholic lay leaders spoke to the crowds. In Sydney there was fear that the clergy would stir up sectarian feelings, and none were allowed to speak. (The Sydney Morning Herald reports Sydney’s Anglican bishop leaving early, complaining of this omission.)

The Catholic and Protestant lay leaders who spoke declared their loyalty to the Crown and appealed for calm. They said, in effect, “We know that we have inherited a dark legacy, but let us seize the opportunity in this new country to work through those differences without resort to civil violence—no matter how strongly we feel about our cause.”

That attitude persisted and became so axiomatic in this country that we now assume it to be a natural state of affairs. We find it hard to understand cultures where this seemingly obvious convention is unknown. For example, the Governor-General’s sacking of the Labor Prime Minister Gough Whitlam in 1975 inflamed the political passions of a reform party that had been out of power for twenty-three years and was dismissed just eighteen months into its current term. Not only did the country resolve that crisis without violence, but such was the depth of civil culture in this country that there was not even the broad apprehension that violence would occur. The issue was resolved by an election.

When, in the 1940s and 1950s, refugees and immigrants sailing from Europe saw the arch of the Harbour Bridge, for many it was the first time in their lives that they had felt safe and free. They knew that their children would never be hungry, would be well‑educated and would prosper according to merit. From that generation, the former New South Wales Premier, Nick Greiner, former Chief Justice, Jim Spigelman, and former Attorney-General, John Hatzistergos, were all either born overseas or were  first‑generation Australians.

Now I want to bring all of this back to my topic—legal ethics.

In The Godfather, it was when the decent Sicilian businessman found that the civil process failed to produce practical justice that he lost faith and reluctantly fell back to his tribal instincts.

Legal practitioners are the interface between ordinary people and the complex bureaucracy that can overwhelm them. Just as in times of war it is the role of our armed forces to defend the freedoms of civil society from external threat, it is the more mundane role of the legal profession in times of peace to maintain that civil society and defend it from internal threats—the greatest of which is a loss of confidence in the civil process.

Loss of confidence might arise from bad laws but it is more likely to be because the legal process is:

• too expensive,

• too slow,

• too cynical,

• too corrupt,

• too uncaring,

• too complicated,

• too rigid—being out of touch with current needs and trends,

• too changing—making it too hard to keep up with,

• too harsh on criminals,

• too soft on criminals, or

• perceived to be biased in favour of (or against) a particular group.

The profession’s rules of ethics aim to maintain public confidence in the civil process by requiring lawyers not merely to be competent technicians but also to be people of character who subscribe to the ideal of a civil society and are capable of correctly making difficult value judgments between competing principles and interests.

The Godfather was set in America. “Waltzing Matilda” is an Australian ballad that is universally known here but deserves deeper reflection. It is the fable of an itinerant labourer, a merry nomad, who takes a stray sheep for food on his journey. The sheep’s owner is a rich landholder who, rather than doing the fair thing by making the swagman work for a day or two, brings in the police to have him imprisoned for sheep‑stealing. Instinctively, the swagman tries to escape across a waterhole but drowns. The swagman is dead but his spirit haunts the place, singing, “Who’ll come a‑waltzing Matilda with me.”

At first glance the story seems to challenge the rule of law because the hero is a criminal. But this was no brigand. By leaping into the river the swagman is subconsciously declaring, “I’ll die before I live in a land of such tyranny.” His free spirit transcends death to warn and inspire us.

The song tells us not only that the rule of law requires citizens to obey the law, but also that the law must be fair and proportionate in its enforcement and that it is the part of every citizen to make it so, especially those with power—the prosperous, state officers, and the educated. Lawyers are all three! This attitude is part of our national ethos but we just call it giving someone “a fair go”.

Examples of the ethical rules that foster this are:

• that lawyers be courteous in their dealings with their colleagues,

• that they not exploit an obvious error by their colleague,

• that whilst being willing to run a weak case, they not accept instructions in an unmeritorious action,

• that they not obstruct, delay or try to manipulate the judicial process,

• that they act honestly at all times,

• that in vigorously representing their client’s interests, they not mislead the court,

• that they not overcharge,

• that they not coach witnesses or collude in harmonising evidence,

• that they not make unsubstantiated allegations,

• that they avoid conflicts of interest,

• that they advise in their client’s interests and not their own,

• that they remain loyal to their clients and defend their rights, even if unpopular.

All these rules serve to make the rule of law effective.

I began by referring to my parents’ sage counsel, that respect for others is at the heart of good manners. What is at the heart of legal ethics?

It is this ideal of a genuine civil society lived securely and openly by the rule of law where there is opportunity to succeed according to merit rather than favour. It is no fantasy. We see it about us every day.

The role of lawyers is to champion this civil society. They do this, not by trying to cleverly manipulate the civil process for the supposed benefit of their clients, but by conducting themselves honestly and with civility—properly protecting the rights of their clients in the context of a higher duty to the community. This is expressed in respecting the legal processes and institutions that secure the prosperity and order that we all enjoy.

One of the greatest dangers is that, in our prosperity and security, we take these bourgeois ideals for granted. (Just for clarity, let me say here that I am not talking about pro‑bono work or social‑justice-type advocacy, but rather the ordinary day‑to-day work of lawyers—property transactions, deceased estates, debt recovery, community disputes, criminal advocacy, commercial disputes, and general legal advice.) To be meaningful, the culture of legal ethics needs to pervade the routine. It is the role of each practitioner to contribute positively to that culture in the way they conduct their practice.

Properly understood, legal ethics is not some constraint on the way lawyers would prefer to practise law, but rather a cause which energises them in the tedium of paperwork, the terror of contested litigation, the unrealistic expectations of difficult clients, and the constant commercial stress of running a business. In all this stress and tedium—through the ordinary diligence, integrity and competence that lawyers bring to the mundane tasks of the day—they are building and sustaining one of the great civil societies in the world, one that has especial influence in the Asia-Pacific region.

There are deeper issues that flow out of this, so I would hazard to say that what lies at the heart of legal ethics is essentially no different from what lies at the heart of good manners. It is no coincidence that polite behaviour is called “civility”. That terribly bourgeois domestic lesson is equally at the heart of both good manners and our civil society—a sincere respect for the equal dignity of others. We just call it giving someone a fair go.