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Steering clear of Lawyer X: A lesson in what not to do (or how to get out of it)
From how they conduct themselves personally to the culture they choose to work in, there are many red flags out there that could land lawyers in real, ethical trouble (looking at you, Lawyer X). Protégé spoke with a legal ethics professor to straighten it out and give junior lawyers tips for avoiding their own scandals.
Naomi Neilson
While now the poster child for what breaching legal ethics can do to a lawyer and their careers, former criminal barrister Nicola Gobbo was not always on this path. In her university years, she held the position of the top of her class in ethics but a few bad decisions in her personal and professional life erased that achievement completely.
In the third episode of The Protégé Podcast, Ms Holmes explained that the legal profession holds itself to very high standards of ethics and to be a member of it, lawyers must “understand what those ethical standards are and feel that they can follow those standards in [their] own practice” no matter where the law takes them.
For instance, it will not be completely uncommon for a client to request that their lawyer breaches ethical duties if they believe it will work in their favour. The possibilities of those breaches are almost endless (think using legal loopholes to hide disclosures), but there are always solutions to prevent wrongdoing. Sometimes, it is as easy as confidently telling the client that ethics and duties come first.
“If the client is a bit more forceful and you’re a junior lawyer, and you have confidence in the ethical conduct of your supervisors, then the appropriate thing to do would be to go and discuss this with your supervisor,” Ms Holmes said. “If it’s a supervisor asking you to do something unethical, that’s a bit more problematic because there’s a big power difference. Nonetheless, there are techniques.”
When it comes to that manager, Ms Holmes said the first thing to do is try to work out why they are asking. She said it may well be that they are not actually saying “please do something unethical”, but rather requesting cutting corners out of pressure over being time-poor, stressed or burnt out from exhaustion. There is a lot of research that suggests these factors play a part in legal ethical breaches.
“The suggestion here would be to try and work out why the partner or the supervisor is asking you to do this [and] possibly how they are rationalising it to themselves and how you can counter those rationalisations to come up with a constructive way of saying ‘well, why don’t we do it this way?’” Ms Holmes said, explaining that a constructive conversation is better than a “hero on a white horse” mindset.
Reflecting back on the fact that Lawyer X was top of her legal ethical class, Ms Holmes discussed the factors in her personal and professional lives that derailed her from her potential. Being aware of the environment that lawyers choose to work in – and understanding when to leave it – is all key to upholding professional standards.
For instance, having a fascination with the criminal underworld and wanting to represent them is one thing (and no judgement here), but approaching police without severing that contact and making money off of informing is a whole other thing. It would have served Ms Gobbo well to have left her clients for good and not have approached police about the confidential, privileged information she learnt. The red flags are numerous, but easily avoidable when leaving out absurd justifications.
“[Police] must have known that she was breaching ethical duties and yet considered that it was justified because they were dealing with a gangland war. That’s always such a dangerous position to take, that these are extreme circumstances, so we are allowed to do something that’s unethical,” Ms Holmes cautioned.
“In respect of Nicola Gobbo, it’s clearly a pretty outrageous breach of ethics, but I’m not sure that reflects on the profession as a whole except on the importance of legal ethics and continuing education [in this area] of the profession not only on what the rules are, but professional judgement and what to do when you don’t know what to do, because not all ethical situations are black and white.”
Listen to the entire interview here for more tips on avoiding ethical breaches.
If you have any questions about the episode or there are any topics that you might want us to look into, please reach out – we would love to hear from you!
We’re also always open to new guests so if you have an exciting story to tell, if you’re standing out as a student or graduate, or if you can offer some tips for our young lawyers, get in touch.
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Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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