Adapt, improvise and overcome: Engaging with conflict of interest in the bush

Abstract

The evolution of the Australian legal ethics regulatory system towards a principles-based approach presents an opportunity for lawyers to cultivate an ethical acuity which transcends prescriptive obedience to promulgated rules. Lawyers are invited to use their professional judgment to discern a response appropriate to both the ethical situation and to the distinctiveness of their law practice. However, as professional regulation moves from a command and control system to a decentred approach which empowers the situated lawyer to be ‘purposive’ in their practice of law, there is a gap in the knowledge as to how lawyers’ professional judgment should be monitored, moderated and maintained.

Informed by exploratory empirical work, this thesis proposes a normative prescription for supporting lawyers’ ethical acuity. It argues that justice delivery requires lawyers to develop an adaptive ethical stance to respond effectively to the context of their law practice, and this adaptive practice should be moderated by professional peers through participation within professional communities of practice.

The research site of inquiry focuses on how country lawyers identify and respond to conflicts of interest. A conflict of interest exists when multiple interests or duties are incompatible. The possibility of conflict of interest increases in country communities when lawyers have multiple and overlapping roles. In addition, lawyer scarcity in geographically remote areas means there are fewer referral options if a disqualifying conflict occurs. This ubiquitous ethical dilemma creates structural strain within country law practices. On the one hand, country lawyers’ practice must reflect the established ethical standard, whilst on the other hand as a justice professional they are the personification of the rule of law in their community and must respond to that context.

This research considers the processes country lawyers use to navigate the intermediary space between the requirements of the regulatory system and their practice context. The theoretical framework developed from decentred regulatory theory, the natural law theory of legal ethics and the concept of professional communities of practice collectively inform the research design and data analysis.

The hypothesis shaping the research asserts ‘That geographic location affects the way that lawyers identify and respond to conflicts of interest.’ Fifty-two country lawyers were interviewed and their responses were coded to a measure of geographic remoteness, then analysed for common themes. This research contributes both explanatory and normative theory to legal ethics. Some country lawyers unconsciously exhibit purposive professionalism and this conduct is consistent with a principles-based, decentred regulatory paradigm. There is evidence that country lawyers’ ethical acuity is shaped through participation within professional communities of practice. The thesis concludes with the normative prescription that ‘For ethical legal practice, lawyers need to participate in a community of practice.’