My Thoughts

No one wants to be told that what feels right could land them on the wrong side of the law — or that what’s lawful might not feel so right. Welcome to modern legal practice. There is a fine, often invisible seam between law and ethics. For a decade and a half-plus I’ve seen capable practioners stumble over that seam — sometimes spectacularly, sometimes quietly — the results are seldom pretty. The law provides us with boundaries and procedures; ethics asks us to do some thinking about who we serve, how we serve them, whether the ends justify the means. Both matter. Both matter a lot. And honestly, neither one on its own is enough. Why it’s relevant now is self-evident. Regulatory frameworks are becoming increasingly stricter in Australia — for corporate governance, privacy law, health law, employment — and clients, shareholders and the public want something at a higher level of thought than just a technical defence of conduct. They expect moral judgement. The courtroom, increasingly, is not the only venue for a collision between the law and ethics. They bubble to the surface in brochures and marketing copy, in client intake forms, in disclosures, in data handling mechanisms, in corporate culture. Not only the lawyer’s craft, but the ethicist’s instinct is now required of a prudent attorney. One short-blunt view: law is a map. Ethics is the compass. You need both to navigate. The first pragmatic step is to get a handle on these frameworks. The anatomy of legal frameworks is well known — statutes, precedent, procedure. Ethical principles are more lenient: codes of behaviour, professional duties, local or organisational customs. Learn both and then develop your own critical thoughts about what happens between the two. That’s the basic training. But training alone isn’t enough. We require habits — the habit of reflection, the open conversation habit, the escalation when things smell off bone. One thing that many lawyers rail against, but should be as much a part of learning the law as anything else, is the teaching and practice of reasoning with an ethical analysis. It’s not a soft add-on. It’s core. And yes — I’ll go ahead and say it — law schools ought to weight ethics as heavily as doctrinal subjects. Others will differ; others will say, Based on my experience in serving clients that is not what people need, they need advocates and not philosophers. But you can’t argue credibly when credibility is suspect. Skills you can apply to real issues What gives an attorney the ability to resolve a legal-ethical conflict? There’s a short list, and then there’s the messier dictate of applying it under pressure. -Critical analysis. Break a problem down. Pinpoint the rule and then challenge the assumptions upon which the rule is based. What facts are we sure of? What’s contested? Do not treat laws as some sort of holy writ; treat them as tools. - Communication. Say what you mean. Listen better than you speak. Draft clearly. Advise plainly. Many ethical failures occur because someone failed to explain the consequences — or, even worse, concealed them. - Emotional intelligence. Learn to read the room — and your client inside it. People’s moral frameworks differ. Understanding a client or colleague’s position can help you identify potential conflicts before they become disasters. — Negotiation and mediation. There is not a trial that every dispute wants. In fact, most don’t. Mediation resolves a very large share of conflicts — and that’s a good thing — as it helps restore relationships and conserve resources. A success rate of around three-quarters also applies to effective mediation schemes where matters are referred and they settle before trial. Now, that’s significant: it means if you lean properly on negotiation and mediation, you can resolve ethical friction without boarding the public spectacle train. - Procedures and escalation. Have clear internal rules. When in doubt, escalate. Make it easy for junior lawyers to say, “I don’t want to work on this” without being tagged as troublemakers. Ethical theories aren’t ivory-tower luxuries This is where lawyers struggle. There’s something almost academic-sounding about ethical theories — deontology, consequentialism, virtue ethics. They’re not. They are practical aids to structured thinking. – Deontology (duty-based ethics) is handy when the rules are clear: confidentiality, disclosure obligations, conflict of interest. It provides you with a default stance.- Consequentialism has a way of reminding you to consider consequences. If a technical legal move is going to cause actual harm, factor that into your advice. - Virtue ethics: always the question, the thing I find myself asking over and over again: what kind of law-firm / practitioner am I would like us to be? Use them together. Read More A one-case approach carries the day. Rigidity doesn’t. The role of systems and culture Good lawyers don’t simply trust to personal virtue. They build systems. Companies and organisations need to create systems in which doing the right thing is not only easy, but beneficial. Try this: build simple decision trees for common ethical conundrums. Develop a “red flag” list of what to watch for in engagement letters. Make confidential advice lines available. Train administrators to exhibit ethical decision-making. Invest in continuing legal education that offers real-world roleplays — not lectures. These are inexpensive, effective measures. And that is another opinion I’ll keep even if it irks a few people: behavior is usually more influenced by culture than rules. A culture that is bright and principled, with leaders who are both bright and good-sounding also, will do fewer atrocious things than a rule-bound firmwithout leadership and needing grey-suited technocratic guidance from above. You require both — but culture turns rules into action. Communication, persuasion and advocacy — ethically Advocacy is not just about winning. It’s persuasion but it can withstand scrutiny.” Good persuasion addresses counterarguments fairly. It doesn’t manipulate facts. It anticipates reputational consequences. You can be tough and principled — the two are not mutually exclusive. As you write submissions, pleadings or client advice, ask: is this morally defensible, not just legally so? If the answer is “only just,” be wary. Trust reduction through persuasion is a victory in vain. Practical negotiation and mediation stuff Here are a few practical things that actually make a difference to the outcomes: - Focus on interests, not positions. And people stuck on positions just don’t move. Interests identify common ground. - Work on options by developing BATNAs (best alternative to a negotiated agreement). If a client’s BATNA is strong, be blunt. If it’s strong, use it judiciously. -Utilize private caucuses. They create room to interrogate the non-legal considerations — reputational, emotional, commercial — that frequently undergird ethical dilemmas. - Preserve dignity. Face remembering negotiated outcomes are more likely to last. And, reminder: The objective is not to skirt law; it’s to forge law- and ethics-compliant solutions that are enduring. Lawyers who are good at negotiating are helping their clients. When ethics and law hurtle toward each other: a toolkit There are times when the law heads one way, and ethics the other. Here’s a quick toolbox to make your way through that storm: 1. Pause. Avoid snap reactions. 2. Map obligations. Legal obligations, professional codes, contractual requirements. 3. Identify stakeholders. Who are the other people who will be impacted? 4. Consider outcomes. Short-term gain vs long-term harm. 5. Seek objective advice. A colleague, a committee of ethics or a senior. 6. Document the process. Transparency protects you. 7. Where required, escalate or withdraw. The most ethical course is sometimes to turn down work. Emotional labor and stress Ethical decision-making is emotionally draining. Aussie docs work long hours; stress can deteriorate judgment. We need to recognize that and create supports — mental health resources, workload management, realistic billing expectations. Lawyers don’t do ethics well when they are burned out. This isn’t soft sentiment; it’s a hardheaded imperative. Practicality The training and continuing education CLE must be practical. Simulation, case studies, cross-disciplinary learning (bring in psychologists, mediators, even journalists) — these form the muscle memory that lawyers require. We — as trainers and counselors — witness teams react to live situations once they’ve practised them. It’s not about lecturing. It’s about embedding ethical reflexes. An edgier suggestion: companies should publicly issue anonymized case studies of moral quandaries and their resolutions. Transparency teaches and builds trust. Some will say that’s risky. I say it’s beneficial. It normalises the discussion of ethics and casts the profession as capable of self-examination. Regulation: landscapes and limits It is not that regulation does not matter. It draws lines and imposes bottom-line standards. But don’t fool yourself: compliance is the floor, not the ceiling. Most legal-ethical issues stem from a compliance mind-set. If your company’s definition of success is “zero complaints,” forget it. You should be striving for principled use, not just technical compliance. Practical applications (hypothetical, because they have to be) You have a client who wants you not include an inconvenient authority in some submissions. The law doesn’t say you must bury it; the ethical stance does. Or that when a marketing brochure makes aspirational promises about results that are legally dubious. These are common. They’re manageable, too — with clear advice, redrafting and, if necessary, politely turning the work down. Another example: a firm is tapped to represent two sides in adjacent commercial transactions. There doesn’t necessarily need to be a legal conflict at stake, but reputational damage and potential entanglements in future businesses could pose ethical risks. Identify them early. Draft conflict management plans. Or say no. Why the trust of the public matters Lawyers are trustees of trust. The public does pay a steep price for losing faith in the legal profession, and not just when things flare up. Trust is not a squishy metric; it’s the coin of successful lawyering. Protect it deliberately. Have open conversations about it with clients and colleagues. Build it into performance reviews. Reward ethical decision-making. Some hard truths — Ethics can be expensive. Doing the right thing may be slower, more costly or commercially awkward. That’s life. It’s not a reason to cut corners. - Not every ethical challenge has an easy solution. Some involve trade-offs. Be candid about that with clients. - Perfection doesn’t exist. Just do your best to make reasonable, principled, defensible decisions. Bottom line practical takeaway Even if you do nothing else, consider using this three-step framework the next time you encounter a legal/ethical conflict: 1. Clarify the legal duties. 2. What are the ethical aspects involved, and who will be affected? 3. Select a path that pays fealty to what’s legally obliged and keeps faith with whatever measure of moral courage you’ve got — and then write it down. Do that regularly and you’ll make fewer mistakes. We teach lawyers and groups of them to do this — not as a fun extra but as core competence. That is the only practical way to produce lawyers who can stand in front of a client, or a regulator, or a judge and defend not simply the letter of their advice but also the spirit. There’s no silver bullet. Some habits improve us — some don’t. Start with the basics. Teach rarely and practise frequently. And keep asking awkward questions — of clients, of colleagues, of yourself. The promise of the profession is narrower than some suppose — to apply law honestly — and broader than many acknowledge: to uphold justice, reputation and confidence. We owe it to the public, to our clients and to ourselves to grip both ends of that promise firmly.