Conclusion

Legal or professional ethics as a subject is often treated either as a discussion of codes of conduct or of personal morality. Neither approach is entirely satisfactory. Simon argues that ‘the essence of the professional judgement of the lawyer is in his educated ability to relate the general body and philosophy of the law to the specific legal problems of the client’.¹⁸⁶ This involves a creative judgement that is informed by complex considerations.

Professional ethics ought to ensure that the practice of law achieves the social good of justice. On the one hand, lawyers work within an adversarial court system that prioritises individual rights. On the other, they aspire to high values and to personal virtue. The adversarial system itself may exacerbate tensions in the lawyer’s role by placing the interests of clients and the demands of the system in sharper conflict than do other systems. This brings the ethic of lawyers into potential conflict with personal virtues such as honesty and integrity, leading some to argue for the alignment of pro­fessional ethics with wider social values.

The call for lawyers to observe ‘ordinary morality’ raises fundamental questions about the legal role. Is the lawyer’s ultimate duty to protect clients from ‘the oppressive power of the state’¹⁸⁷ or simply ‘to administer and to facilitate the operation of law’?¹⁸⁸ The answer, it seems, is that lawyers must do both these things to some extent. This gives them licence to represent the guilty and to provide the best defence available within the rules governing the particular situation. Lawyers’ obligations in an adversarial system are finely balanced. They must pursue their client’s rights assertively and single-mind- edly, but within the limits and consistent with the purposes of the law.

¹⁸⁴ Dare, ‘Mere Zeal’ (n 177).

¹⁸⁵ Postema (n 137) at 81.

¹⁸⁶ W Simon, ‘The Trouble with Legal Ethics’ (1991) 41(1) Journal of Legal Ethics 65.

¹⁸⁷ J Weinstein, ‘On the Teaching of Legal Ethics’ (1972) 72 Columbia Law Review 452; JF Sutton and JS Dzienowski, Cases and Materials on the Professional Responsibility of Lawyers (St Paul, MN, West Publishing, 1989) at 3.

¹⁸⁸ Giegerich, ‘The Lawyer’s Moral Paradox’ (n 183).

Bringing lawyers’ ethical decisions into line with ‘ordinary’ moral values would legitimise client cherry picking and encourage half-hearted representation. Lawyers could impose their own view of legal merit on their client. This would be both paternal­istic and elitist, and at odds with the liberal philosophy of emancipation that underpins the rule of law. Clients are entitled to have cases determined according to objective stan­dards rather than the subjective standards of their lawyer’s conscience.

One of the issues posed in legal ethics in recent years is whether lawyers can live a ‘good life’ on this basis.^[175] This means, in classical terms, can they live according to independent moral principles while fulfilling their professional role. Some critics of the standard conception of the legal role argue that it mandates lying and cheating and so cannot be consistent with a good life. Others argue that the standard concep­tion, properly understood, is perfectly consistent with a life of virtue because of the good the role performs and the limitations it imposes on improper professional conduct.^[176]