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Victoria Mole
1 June, 2010  
Ethically numb

Great distress as leaks spring from the Victorian bushfire royal commission … There are good leaks and bad leaks … Vicki Mole wrestles with the daily moral lapses that play havoc with lawyers’ “ethics”

imageWhether or not the leaks of the submissions of the counsel assisting Royal Commission came from the bewigged ones or one of their hordes of embittered document monkeys, as a lawyer, you can’t help but feel it’s all a bit tacky.

Ethical conundrums abound in the average junior lawyer’s working day.

But leaking documents is in a completely different stratosphere to tweaking time sheets, debriefing with your bedfellow after a stinker of a day or making passes at spunky clients with glasses.

It is just one of those things you don’t do, surely?

If you’re in court for a moderately spicy joust, go forth and tip off your hack mate to cover the story and rack up some press clippings for your gran.

If you’re a journalist and you find some juicy docs on a USB at a public airport, fair call, run with it. It’s the Game.

My derrière is still perched on the fence when it comes to leaking a client’s documents to the media for the client’s gain.

But leaking for the lawyer’s own jollies* is down there with under-the-table iPhoning at pub trivia or jilted lovers of pollies spruiking their tales of woe.

You’re in a position of trust and/or privilege – where is the sport in abusing it?

I state this even though I maintain that legal ethics are qualitatively different to normal ethics (a case I made to my not-angry-just-disappointed mother upon nearly failing the compulsory uni subject in the former).

Ethics for normal people has the harm/badness scale all in proportion.

Ethics for lawyers is entirely out of whack.

At the Firm, the same person who adamantly refuses to witness a document for his secretary if he didn’t see her sign it will read confidential documents on trams, prolong spurious litigation and loudly boast to a pretty lass on a Friday night of all the dirt he has on his clients – without blinking.

And only last week did a senior associate, to my bemusement, descend into hysterics upon discovering that the other side has contacted her client directly (even though she never returns phone calls).

Yet the next day she’s out there shifting the blame for one of her stuff-ups onto the new trainee lawyer the day before his performance review.

This be the curious wonderland of legal ethics.

At times, it befuddles me more than trust accounting.


*My theory, for what it’s worth, is that this leak could have come from within the trolley-pushing masses.

Counsel assisting are there to assist the commission, not advance a particular case. Where’s their motivation? Their reputations are on the line. ‘Tis hardly going to pay like a Bec/Lleyton ditty.

Insofar as they have a “case” to advance, surely the submissions would have had more force if reported when actually made rather than subsumed in the meta-narrative of the missing scruples.

My dear Watson, I’d be sniffing around possibly indignant paralegals about to be laid off now the party is over ...