Ethics is a big part of practising law. As a profession, lawyers like to cast themselves in the role of moral guardians, not just ensuring the letter of the law is applied correctly, but taking a broader responsibility in defending right from wrong.
This attitude is codified in the professional ethics we all sign up to when we gain a licence to practise, which set out in no uncertain terms the principles of conduct and duties expected of all lawyers. We are well and truly indoctrinated with these during the course of our training.
Not that it prevents there being some spectacular lapses. If 20 million Australians cannot contemplate how the captain of their Test cricket team could stoop to defile the name of their nation and favourite sport by allowing a ball to be rubbed by sandpaper, that is nothing compared to some of the cases of malpractice, deception and out and out criminality legal professionals occasionally perpetrate.
Take the case of disgraced human rights lawyer Phil Shiner. Shiner was a man who built his reputation and career on fighting injustice, taking the moral high ground in defence of the downtrodden and abused.
Not only was he struck off for dishonesty and misconduct after using false witness statements to bring claims against British servicemen for abuse of prisoners in Iraq, he has since tried to avoid paying creditors he owed money to by giving away £500,000 to family members and declaring himself bankrupt.
Nevermind the code of ethics – what happened to his moral compass?
Understanding moral disengagement
If lawyers are to take ethics seriously – and they should – then a sound grasp of the theory behind ethical and non-ethical behaviour is a useful thing to have. In particular, lawyers could do a lot worse than look into the study of why people do bad things – and how they justify them.
Not only is the field of moral disengagement fascinating in itself, it also shines an interesting light on some of the things we do in our profession – and perhaps helps keep us on the straight and narrow.
Moral disengagement can be useful in legal practice. The classic example is the defence attorney who is required to represent a client they are 99.9 per cent sure is guilty. How do they do it? Through a process of moral disengagement from the specific situation which tells them there is a bigger, morally justifiable principle at stake – that everyone is entitled to a fair hearing, and is innocent until proven guilty.
What is interesting about a moral justification argument is where the justification stems from. Shiner may well have been so convinced of the guilt of the soldiers he pursued claims against that he thought he was justified in paying an agent to come up with witness statements. The legal world and society at large disagreed. Moral justification needs the weight of consensus to be carried, but can still influence people to act on an individual level.
You may well have used the moral justification argument at some time or another in your own practice. If not, you will probably have used other tactics associated with moral disengagement. Euphemistic labelling is giving a dubious action a funny-sounding name that makes it sound harmless. Favourable comparisons justify an action by claiming it could have been worse.
How many of you have worked for firms that have been guilty of not paying invoices on time, perhaps on a routine basis? Perhaps these delays were put down to ‘administrative delays’ or ‘temporary cash flow issues.’ Bottom line is, it is not paying someone within an agreed time frame. Lawyers are the first to be up in arms if they do not get their money on time.
Or perhaps you or your partners just shrugged your shoulders and said to yourselves: “We could have not paid at all…”
Put this way, these tactical disengagements do not stand up to scrutiny. So you can see how understanding the ways people justify dubious behaviour to themselves is a good way to focus on doing the right thing.