Chapter Five examines the role of international law in State Department policymaking. It describes the formal and informal decision-making processes within the State Department, focusing on the influential role of the Legal Adviser and the Legal Adviser’s Office. The chapter then examines closely the weight given by policymakers to legal advice and the nature of the interaction between policymakers and lawyers. Policymakers, at least at higher levels, generally have final decision-making authority, but the views of the Legal Adviser’s Office can be determinative in the relatively rare instances when the lawyers deem a course of action conclusively illegal. Otherwise, the lawyers’ advice is influential, but its weight may vary depending on the circumstances, including the nature of the national interest involved. Many former officials indicated that the development of policy was often a collaborative and constructive process. The lawyers were usually willing to work with policymakers, and they were often willing to find alternative courses of action within the law, though they would not usually budge on an interpretation of the law. Some former officials indicated that their relationship involved greater contestation, resembling a negotiation. When international law conflicted with significant policy interests, policymakers could sometimes seek to overcome those obstacles.

Chapter 6 reconstructs the process of petitioning to the king, once a dispute had set in and the decision to litigate before the highest authorities had been taken. Firstly, the chapter establishes the extent of knowledge and understanding about royal justice among Tudor subjects. Returning to some of the themes set out in Chapter 1, it explores the wider culture of complaint with which all prospective supplicants were familiar, provides evidence for growing awareness of the format required for petitions to the king, and surveys the range of professional legal advice available to produce these documents. The contents of the petitions that litigants and their counsel put together is further explored, with some consideration of the potential for the plaintiff’s ‘voice’ to break through the formula. Finally, the chapter sets out the practical steps required to reach the royal household and to seek out the king himself. Throughout this analysis, bills of costs submitted by Requests’ litigants facilitate further scrutiny of its accessibility, and particularly whether its shift from itinerancy to settlement at Westminster negatively affected its poorest suitors.

This chapter analyses the policies and practices related to resolving investor–state disputes through ISDS. In this area, three broad themes emerged from our data. First, there are practices of forming the defence strategy for specific investment arbitrations and handling ISDS proceedings. The main issue is whether to engage lawyers from private practice and, if so, to what extent. Second, we discuss the matter of coordination and communication between various governance actors during ISDS proceedings. The third issue is that of dispute prevention. Given the stakes, risks, and challenges resulting from ISDS disputes, many governance actors dealing with IIAs realise that dispute prevention is crucial in internalising the IIA disciplines. This section focuses on various training and educative programmes for bureaucrats that were designed, proposed, or implemented to increase the knowledge about and awareness of IIAs within the broad sphere of national governance. We end with a discussion on the blurring of the public–private divide through the engagement of private expertise in the service of the public when defending ISDS cases.

The ethics of both corporate and government lawyers are critically important to the proper functioning of democratic societies. Both groups advise and act for powerful clients: corporations are amongst the most powerful actors in our society because of the potentially far-reaching impact of their activities; governments have ‘powers and obligations that far exceed those of the normal citizen’. In this chapter, we discuss the ethical responsibilities and challenges facing lawyers who act for these clients. We focus predominantly on corporate lawyers, but then turn our attention to lawyers working in government. While government legal work may seem a far cry from the work of corporate lawyers, in fact in-house corporate and in-house government lawyers face some similar challenges and opportunities.

In this introductory chapter, we first provide an overview of the whole book and discuss some global issues affecting legal practice and lawyers’ ethics. We then explore insights from general morality as an underlying framework for the four approaches to lawyers’ ethics explored in Chapter 2. This framework compensates, to some extent, for the lack of an explicit statement of values in our current rules of professional conduct. We consider the professional imperatives for ethical action (legal and cultural norms) and the ethical decision-making process, including the skills we need to put our ethics into action.

Lawyering in the 21st century is a complex mix of skills, knowledge, experience and ethics. While all these are obviously important for successful practice, it is the ethical zone that ultimately defines reputable lawyers and separates them from those who are merely successful in financial terms. Reputation is an elusive concept and hard to analyse in a short introduction. But one vital element of reputation is the notion of sound ethical judgement – the capacity of a lawyer to understand and choose wisely between contrasting ethical frameworks before making a difficult decision. In this task, it is vital to appreciate that there are several possible approaches to legal ethics. In this chapter, we explore those different approaches and explain why it is frequently appropriate to assess all alternatives for their possible impact.There are four main strands of ethical reasoning or considerations specific to lawyers in the context of Australian legal institutions: adversarial advocacy, responsible lawyering, moral activism and ethics of care. These four types are set out in this book as ideals, and we emphasise what is distinctive about each approach.

Lawyers’ fees are one of the main causes of complaint by clients and of continued public concern about the ethicality of the profession. Charging ‘fairly and reasonably’ and in compliance with the detailed legislative requirements imposed on a practitioner can be tricky. Even the most honest and conscientious lawyers may have trouble explaining fees to clients and controlling their increase. Organisational pressures and adversarial approaches can lead to questionable billing practices and place pressure on individual lawyers to behave unethically. This chapter begins by explaining the most common approaches and their ethical pitfalls. There is no one way of billing that is universally agreed to be free from risk of abuse. The predominance of an ethical approach of adversarial advocacy can also exacerbate costs to clients and diminish access to justice. The legislative requirements of costs disclosure are discussed later in the chapter. We argue that ethical billing practice requires much more than the specific disclosures legally required.

At the start of this book, we introduced four ways of thinking about ethical behaviour for lawyers. Zealous, client-focused lawyering – adversarial advocacy – was contrasted with lawyering that counterbalances client advocacy with upholding the responsibilities and duties of citizens to society – responsible lawyering. A third approach, moral activism, sees the ethical duties of lawyering as being not so much in vigorously asserting clients’ rights, or the rule of law, as in actively doing one’s best in the interests of justice. Finally, an ethic of care sees the ethical virtues of all three of the preceding approaches as overrated and emphasises instead the importance of caring for and respecting the needs and moral aspirations of each person with whom the lawyer may come in contact, as well of themselves. In each of the previous chapters we have examined how the values represented by the different approaches would apply to certain situations and contexts that arise in legal practice. In this chapter we examine the significance of personal values awareness for lawyers’ ethics. The book concludes with a suggested method for self-assessing one’s ethical type/preference.

We are now in the Anthropocene, a time in the earth’s four-billion-year history when human activities are affecting the planet to such an extent that humans have become a ‘significant geological force’. The risks facing humanity also challenge the rule of law. Ideally, law operates to help keep a society stable, peaceful and ordered. Since law is ‘the principal means of implementing public policy’, law must evolve to play its part. Lawyers have a key role to play in assisting that evolution, and the ethics that govern lawyers’ work will play a large part in determining its success. This chapter focusses on the work of lawyers in addressing climate change and environmental damage. Such work raises important issues about lawyers’ role generally and the values and ethics underpinning that role. In this chapter we consider how the different ethical approaches (adversarial advocacy, responsible lawyering, moral activism and ethic of care) are informing lawyers’ actions on behalf of the planet. Of course, many lawyers will draw from several ethical approaches in their work. Likewise, all four approaches can support efforts at law reform, which we discuss later in the chapter.

This chapter considers how the structure and processes of the regulatory systems that govern the legal profession are relevant to lawyers’ ethics and behaviour – that is, the significance of institutions for lawyers’ ethics. In this chapter we consider ways in which the ethics demonstrated by the legal profession as a whole are likely to affect lawyers’ individual and personal ethics. We begin by discussing how our current approaches to regulating the legal profession might, or might not, embody and engender the values that should characterise legal practice. We then focus on the ‘law of lawyering’ – rules and regulatory regimes that have been created to apply specifically to lawyers under the legislation and case law governing the legal professions of each of the States and Territories. The next section provides a brief history of the development of Australian legal professional regulation, before contrasting this with a different regulatory approach that sees market competition as the fairest and most efficient form of professional regulation.

As described in previous chapters, the touchstone of lawyers’ professional obligations to their clients are confidentiality and care. These duties can be understood as key elements in a relationship of trust and loyalty between client and lawyer. This chapter is chiefly concerned with this relationship of loyalty, and how it can be strained by, or overlooked because of, conflicting or competing interests and duties. The final part of this chapter traces how the different conceptions of the lawyer’s role might produce diverse legal principles, such as whether loyalty is or is not imposed beyond the end of legal relationship. As a matter of professional ethics, there are differing views about whether to allow certain conflicts to arise and be managed by the lawyer or law firm, and whether such management of conflicts should be done with or without client consent.

The profession, the legal system and society have all traditionally seen loyalty, care and competence, and confidentiality as cornerstones of professional responsibility. Lawyers are in a fiduciary relationship with their clients – clients need to be able to trust their lawyers to provide advice and represent them loyally in the legal system. This chapter first argues that strong obligations of confidentiality support the lawyer’s role as zealous advocate and officer of the court, but that there must be ethical limitations in some circumstances. Next we show that the concept of confidentiality has become quite tenuous in a world of surveillance, wired for instant disclosure and based on a communication and business model that feeds on demolishing all secrecy. We then examine the ideals of confidentiality and client legal privilege (‘CLP’). Finally, we consider whether lawyers should sometimes blow the whistle on their own clients or colleagues in order to fulfil their professional obligations as gatekeepers of justice.

The differing roles a lawyer can play in civil dispute resolution require ethical judgement to determine how best to act according to the context in which the lawyer is working. As key actors in this system, lawyers have a paramount duty to the administration of justice. This chapter considers some of the impacts of a lack of care by the lawyer and the need for a fulsome notion of competence in providing legal services in dispute resolution. It then turns to how the law of lawyering attempts to balance or observe lawyers’ obligations to the client and the administration of justice in each case. We go on to consider the possibility for lawyers to go beyond the legal minimum, to take responsibility for a more moral activist approach by engaging in a moral conversation with clients. In the final section, we turn to lawyers’ roles in the administration of justice outside the courts, where they represent clients in alternative and more collaborative or non-adversarial forms of dispute resolution.

The criminal defence advocate is usually taken as the paradigmatic example of why adversarial advocacy is necessary, is ethically justified and is fully deserving of our admiration. The defence lawyer’s task is to represent the interests of their client. If a client pleads not guilty, defence counsel’s role is to ensure that their client is not convicted ‘except by a competent tribunal and upon admissible evidence sufficient to support the offence charged’. Prosecutors have special duties of fairness because the prosecutor is an agent of the state, and it is not appropriate for a prosecutor to be adversarial in pressing for conviction. We discuss prosecutors’ ethical position in greater detail later in this chapter. Thus the prosecution and the defence have essentially complementary roles as ‘officers of the court’ in criminal trials – the prosecution’s role is to present a fair case while the defence’s role is to test and probe it adversarially. The prosecution must demonstrate judgement and the defence must have courage. It is the combination of these virtues that make for a fair trial and a fair justice system more generally.

Survivors need support when preparing and submitting redress applications; they need help through (often protracted) assessment processes, and assistance when they receive payments. Good support is necessary to survivors and to the effectiveness of any redress programme. The chapter first explores how local community agencies support survivors. This investigation encompasses the roles of survivors and offenders in providing support. I then look at how to provide survivors with professional services. While survivors should have real choices where they get support, this chapter stresses the advantages of providing holistic support through local community agencies.

Over the last decade or so, international lawyers have started to pay some attention to the role of experts in international decision-making processes (both EU and other international organisations), focusing on the identity of experts, their disciplinary backgrounds, how seemingly neutral expertise helps shape policy, and to what extent (if at all) experts can be held accountable. Perhaps surprisingly, while much attention is devoted to the role of economists, engineers, and scientists, little attention is paid to international legal academics as experts. And yet, without conceit, it is possible to argue that international law scholars too may come to affect the world around them, precisely in their professional, expert capacities: through their research and publications, through their peer activities (reviewer, board member), and through their teaching. Using the notion of epistemic governance and framing expertise as a power to tell stories, this chapter zooms in on the influence exercised by international law academics as experts influencing policy-processes, discussing in particular those aspects of influence that usually go unnoticed.

This chapter aims to give some insights into how a group of transnational experts, Euro-lawyers, was formed and consolidated. According to most of the studies on the legal profession in the EU, the very existence of a set of European rules, and its both quantitative and qualitative development in the 1980s, would have produced a body of specialised professionals. Moving away from this narrative of an almost mechanical response by lawyers and law firms to external incentives, this chapter analyses how the legal profession has seized European law to offer new services and, in doing so, has made a new jurisdictional claim. Over the course of six decades of European integration, this chapter follow the emergence and development of this group of European legal experts. My findings are twofold: first, transnational legal experts did not come out of a vacuum and their engagement with European law must be contextualised by their national professional positions. Second, they actively participated in the building of the demand for their services.