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  7. Aristotle and Rake walk into the Bar: Ethics in the practice of Family Law
25 Jul 2022

Managing Associate, Dr Steve Cohen, and Lawyer, Jordan Schweitzer, in our Family Law team have outlined the ethics in family law.

The relationship between a lawyer, client, and the court, is often misunderstood. This possibly has caused the somewhat dubious relationship lawyers have with the public.

However, it is actually quite a serious matter that lawyers act impeccably. For this reason, a lawyer is guided by an ethical code of practice, mostly written in the Legal Profession Conduct Rules 2010 (WA) (the Rules).

Ethical duties

Broadly speaking, the Rules cover the following ethical duties:

  • A lawyer is firstly an officer of the court and therefore has a paramount duty to the administration of justice.
  • Lawyer must accept and follow their clients’ instructions unless the instructions are unlawful, improper, or incompetent.
  • Lawyers must always be honest with a client and treat them in good faith. A lawyer must be careful and not only tell a client what they want to hear.
  • Lawyers generally must not disclose client information to any third parties.
  • A lawyer must act in their client’s best interests.

A lawyer also has an overriding duty to someone else other than their client– the court. This can cause tension between a lawyer and their client as the lawyer must put their duty to the court first.

This list is not exhaustive. They do however explain the ethical issues facing lawyers on a day-to-day basis.  Indeed, they demonstrate that lawyers must exercise independent judgement and be extremely honest in their practice to both the court and their clients.

Case study – LPCC v Dixon (don’t lie!)

The following case study provides an example of the consequences lawyers can face of they are not completely honest in their practice of law.

In 2006, a lawyer was brought before the Legal Practice Board (WA) for lying during his own family court case. During those proceedings, the lawyer was ominously dishonest about his financial position, so to minimise his wife’s entitlements.

Unsurprisingly, once the lies were uncovered, that lawyer was referred to the Legal Practice Board and eventually disbarred from legal practice.

This case shows that lies made by lawyers, whether, telling half-truths or outright fabrications, are serious breaches of ethical duties. It also shows that the duty for honesty extends beyond that lawyer’s professional life and into their personal dealing, especially when dealing with the court as a private individual.

Ethics and not morals

It is important to understand that ethics do not always equate to morals. While ethics are the overarching rules that guide us, morals are the personally held beliefs of right and wrong.

A lawyer’s ethical obligations are separate from their personal morals or beliefs. That is, a lawyer must act ethically in accordance with the Rules regardless of the moral principles. This approach makes sense as it allows lawyers to practice law in a consistent (based on ethical rules) and non-arbitrary (based on personal morals) manner.  We can consider this to be an ethical-amoral approach to the practice of law.

How does this ethical-amoral approach work in practice? As we can see from the following case study, a lawyer can make a decision that is both ethical and (arguably) immoral.

Case study – Lake Pleasant Case (acting ethically but not morally)

In the 1970’s, two lawyers in the United States acted for a client charged with murder. During the proceedings, their client confessed to two other unsolved murders. The attorneys did not disclosure the unsolved murders, although this information became public knowledge during their client’s trial. Although one of the lawyers was charged with failing to report a deceased person, the charge was eventually dropped due to the lawyer having acted in accordance with his ethical obligations. Disclosure of the location of the dead body would likely have breached the lawyer’s duty of confidentiality and the administration of justice by prejudicing his client.

The morality of the lawyers’ actions in not disclosing the deceased person is unclear and we can all draw different conclusions. What is clear, however, is that the lawyers acted in accordance with their ethical duties and presumably not in accordance with their morals.

Conclusion

In conclusion, a lawyer’s conduct is dictated by a statutory ethical structure contained mostly within the Rules. In this way, and notwithstanding common stereotypes, lawyers may be imperfect, amoral beings, but they are also most certainly ethical.

At HHG Legal Group, we have a team of dedicated family lawyers who are ready to assist you with all your family law needs. If you have any questions in relation to the issues raised in this article, or if you are seeking family law advice, please do not hesitate to contact us by calling (08) 9322 1966 or emailing reception@hhg.com.au to arrange a consultation with a member of our family law team. 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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