Mind the gap : psychological jurisprudence and the professional regulation of lawyer dishonesty

Abstract

This thesis considers the role of professional regulation in disciplining lawyer dishonesty. It defines dishonesty as acts done, whether at the suggestion of a partner, a client or another lawyer, that enable a client to act dishonestly. In particular, it focuses upon the professional norms, practices and rules that regulate large firm lawyer misconduct in Australia. As the size and sophistication of law firms has grown, so too has evidence of lawyers being complicit in the dishonest actions of their clients. This thesis examines how lawyers working within these environments navigate the practical and psychological challenges of acting honestly for their clients. It undertakes a theoretical inquiry into both the importance of lawyer honesty and the often conflicting norms and pressures of large firm practice . It also draws upon research in cognitive and social psychology to develop an empirically-grounded framework for lawyers' decisions to act dishonestly. In particular, it focuses upon the role of rationalisations in encouraging a pragmatic approach to clients' dishonest acts, especially in the context of the complexities and ambiguities of commercial legal practice. In the continuing absence of a national regulatory scheme governing the legal profession in Australia, the thesis focuses upon the disciplinary system operating in New South Wales and undertakes a theoretical inquiry into the importance of regulating lawyer dishonesty and an empirical study of NSW disciplinary cases to understand how lawyer dishonesty is dealt with by the professional and regulatory bodies in that state. It shows that significant gaps exist in the current regulatory scheme, particularly in the context of "who" disciplinary actions are brought against, "what" misconduct actions are for and "how" practitioners are dealt with. It argues that these gaps undermine the legitimacy of the regulatory anddisciplinary systems, which have as their goal providing a consistent scheme for the regulation of lawyers and the enforcement of standards of competence and honesty across the legal professlon. Finally, the thesis considers whether the regulatory regime governing professional misconduct in NSW can be effectively used to improve the standard of large firm lawyer honesty. It argues "yes" and suggests that three regulatory responses are required: firstly, normative issues need to remain at the centre of the regulation of professional misconduct; secondly, all law firms should be subject to the requirement to implement appropriate management systems and finally, specific provisions should be introduced to impose liability on large firm lawyers who assist their clients to act dishonestly. Show more