Positive case for mandatory ethics assessment of lawyers

Positive case for mandatory ethics assessment of lawyers

Adrian Evans
Monash University, Victoria, Australia
adrian.evans@law.monash.edu.au

There are several ‘unassailable’ arguments for introducing ethics assessment for lawyers as a norm of continuing licensure to practice law:

  • The first argument is obviously that the number of scandals involving our profession show no sign of abating and that as national economies downturn, we will see more of the same
  • As a profession we must do more to prevent ethical scandal
  • At present, we tend to be reactive and punish misconduct, but shy away from prevention
  • Ethics assessment is preventative
  • It could work by assessing ethical awareness of competing ethical methods in a particular situation, (not by saying that this or that ethical position is superior to another)
  • An oral interview by peers is the way to proceed, discussing a confidential scenario (which cannot be coached)
  • Best to do this via law societies senior members as interviewers, as we can do it better than regulators
  • Let’s get in before regulators try to prescribe it (in response to a new scandal)
  • Cost is an issue, but cost–benefit is the real issue. The cost of not doing anything will inevitably be higher than the cost of trialling such a process now, on a small scale, to see what the practical implementation issues will be
  • All this could be eventually managed through the CPD infrastructure, but a trial is probably best done via a discrete law society initiative.
  • Those who don’t want to at least try this out ought to be prepared to say why we should do nothing!