Lawyers are hired by their clients and to a certain extent, are expected to acquire obligations in the interest of their

clients. However, there is nevertheless, a paramount duty to the court and justice system. These duties essentially involve the consideration of wider obligations to the community and may at times, be of greater fundamental importance than the private interest of the clients. It is tThe integrity of the legal profession to be ablerests upon its ability to balance and assess such conflicting duties in the course of fulfilling its the public service it provides.

Lawyers admitted into practice in the legal profession are well equipped with specialised skill and knowledge superior to the normal layperson. They are placed in a position of dominant control in the legal sphere an environment where total dependencethe entirety of the legal process would be placed on a lawyerdepends upon the expertise of legal professionals. Because of the nature of the legal profession, one would be inclined to hold lawyers to a high standard of competence, fidelity, confidence and diligence.1 Lawyers are required to exercises approach their practices as more than an occupation. There must be a commitment to fundamental principles and overarching values of the present society.2 A lawyer must display constant awareness over all factual circumstances in the case at hand and an ability to ascertain what is then relevant.3 Lawyers must apply rules of ethical approaches and reasoning in taking action. It is suggested that there are four ethical reasoning approaches; the adversarial advocate for the client, a responsible lawyer, a moral activist and a lawyer excising the ethics of care.4 The last three in particular tends to overlap in its their shared underlying principle of facilitating an optimal outcome for the general good.

Looking first to the direct duty of a lawyers loyalty to their client, it is easy for a lawyer to fall into the approach of a hired-gun. It is true that lawyers have a duty to represent their clients and advocate in their best interest. However, taking this

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webb p.30 Webb p.30 3 Greenwood p.724 4 Parker

approach of an adversarial advocate into isolation, it raises the question of whether leaving litigating directions solely to the client alone is an adequate approach to professional responsibility. It may be argued that this approach works to benefit the legal practice, as lawyers are then able to focus wholly on upon the legal contextual issuesissues regarding legal context at hand. It is not for the lawyers to judge the motives of the client but rather, remain impartial, prioritising the clients best interest. Each side of the opposing parties should present their case as _with as much transparency as possible. The final decision of administering justice should be left to the determination of the courts.5 Lawyers are contended to be mere legal servants of the court, ensuring non-discriminatory legal representation to the public. This view is consistent with the principle of providing equality in the system of access to justice.

However, this technical statesman approach requiring no independent thinking on the part of the lawyer brings with it certain complications. Realistically, the lawyer as an individual will naturally bear certain personal values. It is understandable that a lawyer may have his own viewpoint and opinions on a case and even though he may choose to still act in the clients best interest, there can be some unease. 6 Such a quandary is illustrated in the Kalejs case. A lawyer was asked to represent a suspected war criminal over mass murdering of Jews in World War II. The relevant barrister was a Queens Counsel, prominent in the Jewish community and a former president of Liberty Victoria. He found the dilemma of whether to represent the client ethically conflicting between his personal judgment and professional values in providing fair and just access to legal representation. On the concept of the hiredgun, the lawyer would be required to take up the case and defend the client at all cost, disregarding any possible ramifications and exploiting any loopholes that may be evident in preventing Kalejs extradition.

Notwithstanding theThe lawyers duty of loyalty to the client notwithstanding, the lawyer should not nevertheless refrain from blindly follow strictfollowing the
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Parker p. 18 Webb p. 37

instructions of the client to the letter. It has to be kept in mind that there is a paramount duty to the court and the administration of justice. In a straightforward view, a lawyer must not participate in a clients illegal endeavours. Also, clients are often misled by their own personal aspirations to the degree that they are perpetuallycan become blinded to the detriment ofpotentially detrimental effects these may have on others. The legal profession should have maintain a degree of consideration towards the wider community. It is the job of the lawyer as advocators of the law to facilitate truth, justice and what is essentially fairness in dispute cases. As mentioned, there is an element of paternalism between lawyer and the ordinary citizen.7 They should be able to see the moral problems and be put in better perspective to stand objectively in figuring out the best approach for the given situation. There is a responsibility towards justice and the greater good. A good lawyer should put himself within the problem rather than be apathetic to it.8 In Spaulding v Zimmerman9, the lawyers had received information yet unknown to the opposing party that the plaintiff was suffering from an aorta aneurysm. This information was significantly detrimental to the defendant. In decidingWhen making their decision on how to proceed, the defence counsel chose not to breach the their duty of confidentiality to their client. However, not disclosing this information was a serious threat to the plaintiffs critical health condition. Although the choice of nondisclosure was consistent with a lawyers obligation to his client, an omission to alert the plaintiff of his grave condition seems morally repugnant. According to our normal views of moral responsibility, the gravity of another persons life at stake seems sufficient justification to contravene client confidentiality. It is acknowledged that there is a substantial predicament in the conflicting obligations to the client and moral responsibility to the general public. However, in the instant case, the defence lawyers did not inform the client of their findings. They had out rightly failedIt can be said that they failed outright to comply withfulfil their responsibilities to consult with their client about the ethical dilemma of the situation.
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Webb p. 50 Webb p. 66 9 Spaulding v Zimmerman

The general public has expressed the concerns that lawyers have lost their souls in neglecting wider responsibilities.10 Although there is a certain advantage for a lawyer to act solely in the interests of the client and advocate fervently to achieve that end, it is potentially disastrous if a lawyer were to have a blatant disregard for all other consequential outcomes. Kronman recognises an idealistic view that lawyers should represent a public good as opposed to a mere private interest. Apart from fulfilling legal competence required under the role of a lawyer as a profession, there is also a requirement to display elements of ethics and mortalitymorality. This upholds the integrity of the profession in compliance with the standards of the law. 11 In doing so, there must be a sense of personal values and independent judgment according to the specific facts of each individual case. There is no real justice in winning a case for a client at the expense of masticating another party.12 Such immoral tactics sink public confidence in the legal profession and is implicitly contrary to the idea of public service.

When faced with any ethical dilemmas, Kronman suggests that lawyers should adopt good practical wisdom in assessing all relevant aspects of the situation and working out what best resolves an issue while minimising corollary harm.13 Adopting an empathetic approach may be the best way to ensure due consideration for the wider community and all other relevant parties in considering the principle of assessing who may best bear the harm.14 This is essentially a preventive problem solving approach. Take for example, the case of Gunns Ltd15; a profitable logging company that attracted numerous protest demonstrations regarding environmental issues in logging mature forestation. Subsequently, the legal counsel for Gunns lodged a writ against its protestors filing injunctions and claims for damages due to vehement protest activities. Arguably, duties were carried out in accordance with adversarial
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Kronman Parker p 23 12 hired gun p. 772 13 kronman 14 Caroline 15 Gunns Ltd v Marr [2005] VSC 251

advocacy for the company and on a strict legalistic view, there was a sound and legal basis in bringing their claims. However, there was a significant imbalance of vulnerability positions between Gunns Ltd and ordinary citizens. It was implicitly unethical for Gunns to abuse their powerthe legal process in an effort to suppress its these protestors and is not surprising that it drew an uproar of disapproval from the general public. Lawyers acting for Gunns should have taken into consideration the repercussions of their legal actions and its ethical merits. It is an overlapping approach of the legal practice in regards to the ethics of care. This illustrates the point that lawyers should heighten their senses beyond the desired legal merits of a case. There is an overriding overarching duty to maintain uphold justice and the integrity of the law and at times, calls for a need to override the lawyers direct duty to the client and inquiry intoenquire as to whether there are other values issues at hand more important than that of the clients.16

In a similar case, there were long dragged out litigations evident in the James Hardie case.17 In order to protect the personal interest of the company, the general counsel took advantage of a loophole in the Corporations Law to bar future claimants from further compensation. Although there was nothing inherently illegal in shifting corporate funds around and minimising taxation fees and nothing to impute negligence or liability, the lawyer had failed in his responsibilities to the community. There was a blatant disregard to the interest of the public. Similar to Gunns, the gravity of blatant unfairness led to significant social pressures against the companies and they were eventually forced to remedy the situation. If the respective lawyers had acted responsibly with regards to the wider community, rather than the narrow mindset of adversarial advocacy, the unnecessary dispute proceedings may have arguably, been avoided in the first place.

Ethics of care is concerned with lawyers general responsibilities to people and the community.18 It recognises the greater benefit of subduing adversarial hostility and
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Parker p. 2 james hardie 18 Parker p. 28

replacing it with agreeable negotiations between parties. This approach focuses on preserving and nurturing relationships within the community.19 Therefore the lawyer should take into account the interests of the client but also respond to it them in the context of the clients network and relationships.20 This seems consistent with our normal view of moral intuition that persons in a superior position sees the bigger picture and cares for the wider community. It is not just any simply personal values that matters but also an impartial perspective derived from an objective state of mind. However, It is suggested that it is in actual fact, the independent judgment of the lawyer that operates when assessing the social detriment of the potential harm. It is perhaps the special relationship surrounding the lawyer that affects this perception. Nevertheless, there is a functionalist view of lawyers as a special class of profession in society to protect all. The practitioner should never take for granted the idea of reconciling relationships. Furthermore, there may be an alternative solution in resolving a matter or better yet, be of further benefit to the client yet unknown to him or her.

There is no particular formula for which a lawyer may acquiesce toturn to in deciding how to proceed in ethically difficult situations. As mentioned, a practitioner must be diligent in assessing all relevant factors in balancing such what may sometimes be conflicting duties and responsibilities. Leaving litigation directions solely to the client suggests neglectful neglectfulness and/or incompetence in fulfilling lawyer the responsibilities of a legal practitioner. Lawyers should be encouraged to respect and comply with their duties to their client yet at the same time, be able to look beyond the private interest and recognise their wider responsibilities to the community. Such ethical dilemmas are difficult. One can only hope for a lawyer to exercise practical wisdom in combining fundamental principles, rules and moral values in determining the necessity of any overriding responsibility.

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Parker p. 28 Parker p. 36