Welcome to the Inside Lawyers' Ethics website.
The resources below are available to users of the book and require a username and password.
- The username is: ethics
- The password can be found in Chapter 5 of the book, and is the fourth word under the heading 'The prosecution' (page 163 of the print book).
Case studies and online resources
A note on the additional case studies
Inside Lawyers' Ethics introduces four main ethical approaches, which can provide further help for lawyers when making ethical decisions. Each approach draws its legitimacy from different and sometimes overlapping traditions of general morality, as indicated in Figure 1.1 (p 19). We encourage you to work through the additional case studies below with this figure in mind. The topics covered in these case studies (usually based on real cases) and questions are designed to clarify and challenge your own stance on each area.
Chapter 1 – Introduction: values in practice
Additional case studies
Case study 1.5: The Jewish QC and the alleged Nazi war criminal
This is an additional case study for Chapter 1 discussions from the first edition of Inside Lawyers' Ethics.
Case study 1.6: Lawyers, Gunns and protest
In 2004, Tasmanian sawmiller and hardware retailer Gunns Ltd lodged a writ in the Supreme Court of Victoria seeking injunctions and damages of $6.36 million against 20 defendants in relation to 'campaign activity' against Gunns. This case study concerns whether this was a case of unjustified excessive adversarialism or an appropriate use of legal process.
This is an additional case study for Chapter 1 discussions which was originally included in Chapter 1 of the 1st edition of Inside Lawyers' Ethics. The case study is revisited as supplementary reading for Chapter 6.
Useful online resources
McCabe Centre for Law & Cancer: About the McCabe Case
The McCabe case was arguably the most important Australian legal ethics decision at the start of the new millennium. It deals with many issues: lawyer dependence and deceit, oppressive litigation, addiction and its consequences, and access to justice, as well as the integrity of the justice system.
ABC Radio National: The Philosopher's Zone – Utilitarianism
David Rutledge speaks with Australian philosopher Peter Singer about utilitarianism.
The Moral Architects – Part Two: Immanuel Kant (1724–1804)
This program highlights the contribution to moral philosophy of Immanuel Kant, the inspiration for modern 'Kantianism'.
This program explains why an appeal to virtue is now re-emerging as a basis for ethical living, as populations become less excited by materialism and growth for its own sake.
Earth Law Center is a US-based NFP which 'works to transform the law to recognize, honor, and protect nature's inherent rights to exist, thrive and evolve'. In the Australian context, see the Australian Earth Laws Alliance which seeks to 'increase the understanding and practical implementation of Earth centred law, governance and ethics (or 'Earth jurisprudence') in Australia'.
The Saturday Paper – 'The dark politics of the Timor spy case', 7 July 2018
[Please note that The Saturday Paper offers access to one full article per week free of charge.]
The need for determined and independent legal representation continues to be vital in all systems of government, not least in democracies.
ACT lawyer Bernard Collaery is prepared to take adversarial advocacy very seriously. After five years of government silence, Mr Collaery has recently been charged with national security offences in connection with his representation of a former intelligence agent and the Australian government's efforts to protect the purely economic advantages of private companies operating in the Timor Sea.
After reading this article, consider whether you would be willing to go as far as Bernard Collaery in the interests of your client's defence if you found yourself in a similar situation. If so, how would you reconcile that advocacy with the contrasting demands for secrecy that might be expected under a responsible lawyering approach?
Revisit this dilemma after you've read Chapter 4 of Inside Lawyers' Ethics (3rd edition).
Chapter 2 – Alternatives to adversarial advocacy
Additional case study
This is an additional case study for Chapter 2 discussions, from the 1st edition of Inside Lawyers' Ethics.
Useful online resource
Lawyers world-wide are trusted by clients with their secrets and are often called upon to stand up for those clients when their interests or rights are challenged or threatened. This expectation lies behind the justification for the type of lawyer known as the adversarial advocate – the lawyer who places a client's interests first and is the dominant type or model for lawyers in Western legal systems. But outside Western systems, and those systems heavily influenced by Western traditions of jurisprudence and lawyer independence, there are other approaches. In China, for instance, it is acceptable for lawyers to strongly advocate for their clients up until the point where those interests conflict with those of the State or the Chinese Communist Party. To this extent, Chinese lawyers may be said to be formally required to ultimately follow a responsible lawyer type or model; and this priority of State and Party interests over those of individuals is part of the legislated Chinese legal system.
Read the article 'Your Chinese Lawyer's Duty of Loyalty. What Me Worry?'
Using lawyers in film and TV to discuss the four ethical approaches
Another way of introducing the process of ethical decision-making in Chapter 1 and the four ethical approaches in Chapters 1 and 2 is to ask students to watch a movie or TV series or to read a piece of fiction in which lawyers are central characters, and which has some element of realism to the context for lawyers' work. Examples we have used include the Hollywood movie Michael Clayton and the British TV series Silk.
It is particularly useful to go through the process in Step one: Awareness of ethical issues, of identifying all the stakeholders and their interests in a scenario described in the movie, TV series or piece of fiction.
Then the four ethical approaches can be applied and discussed by identifying a character or incident in the movie, TV series or fictional piece that illustrated their approach, or to make something up that one of the characters could have done to illustrate their ethical approach.
Template
Download a template version of the tables included in Case study 2.1 on p 56–61 of Inside Lawyers' Ethics, 3rd edition. Read the case study and then use the 'Your notes' column to record any thoughts or reactions you have about what your firm should do, why they should do it, and on what ethical basis.
Chapter 3 – The responsibility climate: professionalism and the regulation of lawyers' ethics
Useful online resources
The following sites list a variety of regulatory and professional associations relevant to Australian lawyers, with comparisons to relevant UK and US sites. Perusal of these sites will provide a succinct overview of relevant ethics-related regulation in all three countries.
American Bar Association: Center for Professional Responsibility
Association of Corporate Counsel Australia
Legal Ombudsman (England and Wales)
The Legal Services Board (England and Wales)
Office of the Legal Services Commissioner (New South Wales)
Legal Services Commission (Queensland)
Legal Services Commissioner (Victoria)
Legal Services Consumer Panel (UK)
The Legal Services Council website (which includes the office of the Commissioner for Uniform Legal Services Regulation) contains up-to-date information and subordinate links affecting the overall regulation of lawyers in New South Wales and Victoria.
Legal Profession Uniform General Rules 2015
The Legal Services Council has made the so-called General Rules, which contain much of the detail about practising certificates, trust money, trust accounts and billing previously contained in the NSW and Victorian Legal Profession Regulations.
See the Legal Profession Uniform General Rules 2015.
In relation to the rules about trust accounts in particular, see General Rules Part 4.2 Trust money and trust accounts.
Revisit these links when completing the reading for Chapter 8.
Chapter 4 – Confidentiality: boundaries and disclosure
Additional case study
Case study 4.6: The too-silent partner?: Julia Gillard and the Australian Workers' Union slush fund
This is an additional case study for Chapter 4 discussions, from the 2nd edition of Inside Lawyers' Ethics.
Useful online resources
Alton Logan case
As discussed at p 111 of Inside Lawyers' Ethics (3rd edition), Alton Logan was released from an Illinois prison in 2009 after being imprisoned for 26 years for a murder he did not commit. The fact that he was, and always had been, innocent was known by two lawyers, who had no doubts about this fact. At the time of Logan's original trial they had acted for another man who confessed to them that he was the real murderer, but they kept their knowledge secret for the entire 26 years because they considered themselves bound by the local Illinois Bar (and American Bar Association) rule of attorney-client privilege (or client confidentiality). The following resources provide some more detail about the case, the lawyers' thinking and the impact on Alton Logan and his family.
- Justice Failed: How 'Legal Ethics' Kept Me in Prison for 26 Years by Alton Logan and Berl Falbaum (2017)
- CBS News: '26-year secret kept innocent man in prison', 23 May 2008
Lake Pleasant case
Another famous US case in which lawyers kept secret confidential information from their clients, in this case about where missing persons were buried, is the Lake Pleasant case. There is an excellent analysis of the ethics of client confidentiality involved in this case in the radio discussion: ABC Radio National – The Philosopher's Zone: 'The ethics of keeping your mouth shut – the case of the buried bodies', 20 September 2008.
The Panama Papers
In 2015, the so-called Panama Papers were leaked to journalists. The Panama Papers are 11.5 million documents that detail otherwise confidential lawyer-client information of over 200,000 companies and individuals. The documents belonged to the Panamanian law firm Mossack Fonseca, many of them detailing how these entities moved funds around the world in an effort to evade paying tax in their home countries and jurisdictions.
The Guardian's piece, 'What are the Panama Papers? A guide to history's biggest data leak' details their history and significance and illustrates how lawyers' confidentiality is now a highly contested arena because of the perception that the inherent secrecy is used to subvert another public purpose.
Financial Action Task Force Recommendations
The international Financial Action Task Force (FATF) has made a number of recommendations for actions to combat money laundering. If adopted in Australia, these actions may include a requirement for lawyers to secretly (ie, without telling their clients) blow the whistle on their own clients by reporting them to AUSTRAC (Australian Transaction Reports and Analysis Centre) or the Australian Federal Police if they think or even reasonably suspect that their clients are laundering money.
See the Financial Action Task Force and Australia's Engagement with the Financial Action Task Force.
Chapter 5 – Ethics in criminal justice: proof and truth
Useful online resources
The film describes the impact of the controversial 1930s NT prosecution for murder and subsequent disappearance of Yolngu leader Dhakiyarr, in a case that began to redefine the nature of a lawyer's duty to fully understand their client and any instructions to plead guilty.
Cardinal George Pell became a focus for public disapproval of the Catholic Church during the Royal Commission into Institutional Responses to Child Sexual Abuse. He was charged with historical sex offences and sent for committal during February and March of 2018. In Pell's testing of the charges during the committal, Robert Richter QC demonstrated how important it is for very unpopular defendants to benefit from Kantian fairness and the adversarial advocacy of committed counsel, through the robust cross-examination of prosecution witnesses. This extract from the Brisbane Times sums up Richter's approach.
Chapter 6 – Civil dispute resolution and excessive adversarialism
Additional case studies
We encourage you to return to Case study 1.6 in the resources above, in light of what you've learned in Chapter 6.
Case study 6.6: Mediators' ethics
This additional case study ties to Case study 6.5: Ethics in negotiation (p 208 of Inside Lawyers' Ethics, 3rd edition).
Case study 6.7: Cobaw Community Health Services Limited v Christian Youth Camps Limited
This is an additional case study from the 2nd edition of Inside Lawyers' Ethics concerning the use of a partisan expert theological witness in favour of discrimination by a religious organisation.
Case study 6.8: The Cape asbestos settlement
This is an additional case study from the 2nd edition of Inside Lawyers' Ethics concerning the potential conflicts between the rights of groups of clients and individual clients in class actions.
Chapter 8 – Lawyers' fees and costs: billing and overcharging
Useful online resources
ABC Radio National Law Report – 'Billable units', 31 May 2011
This discussion about time-based billing and its tendency to add to depression in lawyers remains very important, even as the 6-minute billing interval is starting to be replaced by other methods of billing time to clients.
Video: 'I'm Billing Time Redux' (song)
Written and performed by the Bar and Grill Singers for Volunteer Legal Services of Central Texas, this acapella rendition of time-based billing reminds us of the lighter side of making a legal living.
Legal Profession Uniform General Rules 2015
Revisit the links to the Legal Profession Uniform General Rules 2015 and General Rules Part 4.2 Trust money and trust accounts, provided in the resources for Chapter 3.
On 11 December 2017, the Attorney-General of Australia provided Terms of Reference to the Australian Law Reform Commission (ALRC) for an inquiry into class action proceedings and third party litigation funders. This inquiry is expected to focus on increasing access to justice by examining how class action costs to plaintiffs can be lowered. However, there is some prospect that the ALRC's work here will be politicised, as the Federal LNP Government may have, in part, provided the reference to the ALRC in response to some lobbyists' assertions that class actions are too lucrative for lawyers and their background funders.
Chapter 10 – Conclusion: personal professionalism, virtue, values and legal professionalism
Useful online resources
ABC Radio National Law Report – 'The fall of Marcus Einfeld', 24 March 2009
This case study of a respected former judge lying about a $77 speeding ticket can be discussed as another example of ethical misconduct and rationalisation.
Appendices
Templates
Use these links to download the two appendices to print and use privately to complete the self-assessment.
Appendix: Part 1 – self-assessment of legal ethical preferences
Appendix: Part 2 – scale to self-assess legal ethical preference