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.
