How ethical lawyers can be real-life superheroes
What does Spider-Man have to do with legal ethics? The superhero is known for using his powers to fight crime and pursue justice, but he tends to employ tactics that are outside the boundaries of the law.
The comic-book vigilante does, however, have a motto that is relevant to law students, says Patrick Keyzer, Professor of Law and Public Policy at ACU.
“There’s this line from Spider-Man, ‘With great power comes great responsibility,’ and I actually think it really does apply to law students,” says Professor Keyzer, who joined ACU in 2021 as Dean of the Thomas More Law School.
“Through the things they learn at university and the pro bono work they do, law students find themselves in a position where they come to understand how powerful they can be, but also how careful they need to be. And it’s that balance between knowing that you’re powerful, and exercising that power ethically and responsibly, that makes the best lawyers.”
On an almost-daily basis, lawyers have to use their power, authority and technical knowledge of the law to make important decisions that affect their clients.
If you’re the accused in a criminal trial, your liberty is at stake. If you’re buying a house, your money is at stake. If you’re involved in a business dispute, your business may be at stake.
“Lawyers are called on by people when they need advice on these matters in a timely fashion,” says Professor Keyzer, who was admitted to legal practice in 1993, and has been a barrister since 1998.
“They need to marshal large quantities of factual material, to resolve issues in accordance with the contemporary legal position, and to represent their clients faithfully, appropriately and effectively in the justice system.
“These are high-stakes issues, and for that reason, it’s really important for lawyers to have high ethical standards, and to insist that other lawyers that they will work with, and against, also have those high standards.”
So, what happens when lawyers let those ethical standards slip?
Professor Keyzer cites the aftermath of the most recent United States presidential election as an illustration of questionable legal ethics.
“Donald Trump lost that presidential election — he lost it fair and square — and that was confirmed by the certified results,” he says.
“He made several claims of fraud, for which there was no evidence. Despite this, he insisted that he won the election and he instructed lawyers to dispute the election result in courts throughout the country.”
By launching these legally-unsound lawsuits, often laden with errors and conspiracy theories, Mr Trump – and the lawyers who represented him – potentially damaged the respect people have for their entire democratic system.
“As a direct result of those actions, people don’t only lack trust for the electoral system, they lack trust in the courts,” Professor Keyzer says. “And when you have that sort of damage being inflicted on a legal system and a political system by lawyers, you produce the sort of context within which an insurrection can take place.”
Put simply, if a lawyer is advancing an argument that has no foundation in law, the ethics of that are highly questionable, and the consequences may be considerable.
So, if a lawyer’s chief concern is to use the law to affect their client’s wishes, can that potentially lead to a lack of concern for legal ethics and ethical principles?
The short answer, says Professor Patrick Keyzer, is yes. But the same could be said for most professions.
“You’re always going to have people who don’t abide by the rules,” he says, “and so there’s a steady stream of cases reported in Australian courts which demonstrate circumstances where solicitors and barristers have behaved unethically.”
He points out, however, that the vast majority of practicing solicitors and barristers hold very high ethical standards, standing up for causes that matter, and often providing their services for free.
“You can brief any barrister you like in Australia, and if they are available, they have to take the case, and that’s
part of the notion that a barrister is a servant of everyone, and yet of no one,” he says.
“There are many high-profile barristers who command a significant commercial rate if they’re briefed by commercial clients, but they also do cases for people in need, or people who are on legal aid, and often on a pro bono basis.
“It is something that barristers do a lot of, but many people in Australian society generally don’t understand how much work we do for free. We owe our allegiance to no institution, other than the proper representation of our clients, whatever that means, before the courts.”
Ethical law graduates
The Thomas More Law School has a stated goal of developing “confident, responsible and ethical law graduates”, who “embrace law to fight injustice”.
At the heart of the law school is an undertaking to stand up for people in need, and for issues that matter.
Undergraduates are required to complete at least 80 hours of pro bono service during their degree, and many opt to assist worthy causes: asylum seekers requiring legal advice; those dealing with employment law matters; and the Anti-Slavery Network, which aims to eradicate modern slavery.
But do universities and law schools have an obligation to instil these principled values in students who intend to practice law?
“I think the true proposition is that law schools in Australia are not under any obligation to run pro bono programs and to support community law centres while preparing their students for practice – there is no mandatory requirement to do that,” Professor Patrick Keyzer says.
“For me, in coming to the Thomas More Law School, one of the reasons I was really attracted to the position was because the school has a very active pro bono program, where students eagerly undertake this service in the community before they graduate. I think it’s a wonderful program and I’m an enthusiastic supporter of it.”
Professor Keyzer remembers his own experience as a law undergraduate in California. Nearing the end of his degree, he was offered an opportunity to spend six weeks working pro bono at a Los Angeles-based community law centre which specialised in disability rights.
“That was such a great experience for me, because I spent six weeks working with a Harvard-trained litigator who had a lived experience of disability,” he says. “And I learned more in that six-week period than I did in six months of learning about land covenants, and personal property securities legislation, and all the stuff I was doing in my law degree.”
While gaining this hands-on experience, the younger Patrick Keyzer came face-to-face with the ethical obligations that lawyers hold, and the service they provide to the community.
“Again, it’s the principle that lawyers are servants of all, and yet of none,” he says. “I think that if you really want to understand that principle, you need to see and feel it play out in operation. You need to be immersed in circumstances and experiences that are going to make you understand the power, skills and knowledge that you bring, but also the awesome responsibility that’s associated with that.”
Which brings us back to Spider-Man and his motto: “With great power comes great responsibility.”
Law students, says Professor Keyzer, are “a bit like spider people”.
“They go to these experiences at community law centres and human rights centres, and they come back and you can see their eyes opening up to the world of injustice, and the role they can play in helping to fight that injustice,” he says.
“Getting to that point takes a lot of hard work and a lot of deep ethical reflection. But it’s the ethos that our law school and our pro bono program engenders and develops, and it is really exciting to see it in action.”
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