Passing Bull 289 – Lawyers and moral advice

A reader of The Age said some people had invested in Crown in good faith.  That led to the obvious response that the only ‘faith’ investors had was that suckers would keep giving their money away and that such faith was not ‘good.’ 

In the AFR yesterday, there was a column on whether lawyers should give moral advice.  According to the paper, the Royal Commission said ‘the lawyer should have some obligation, perhaps best characterised as a moral obligation, to see that their client obeys the law.…To give moral advice is not to impose it…If the lawyers who were involved in Crown Melbourne’s misconduct had adopted this attitude, much of what has happened, and most of the dishonourable conduct would not have occurred.’

The journalist sensibly queried that last leap of faith.  Some might think that the most natural consequence of the lawyers’ adopting the attitude referred to would have been that they would have been fired – for good reason.  They are not priests or policemen.  The days are long gone when a senior trusted adviser of long standing might say to the Chairman ‘Do you really want to sail this close to the wind – it could get ugly – and so might the press and the shareholders.’ 

One of the problems with saying that lawyers should engage in discussing moral issues with clients is that it tends to assume that there is a corpus of established doctrine on how people engaged in deriving profit from others in a capitalist world might best apply the Sermon on the Mount.  Or the sharia law on making money out of money.  Nothing could be further from the truth.

A lot people think that the whole business of Crown is immoral.  Some law firms will not act for such people – or, for example, tobacco companies.  (I have been a party to such discussions.)  But if lawyers choose to act, then they might spare their client their views on what is moral, honourable or proper.  They would be told to mind their own business – and then they may be asked whether they are personally acquainted with lawyers lately on their way to jail for theft.

One question commercial lawyers are often asked is – ‘Has the other party to this contract done enough to allow me to walk away.’  They do not look for an answer: ‘Yes – but you should not welsh on your word.’

There is one exception – which was not referred to in the paper – that may arise if under the law the proposed conduct may put in jeopardy a licence or directorship.  Those issues can be tricky, but at least they start and finish with the law.

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