OPINION: CLOSING THE DEAL

Written on the 1 June 2015 by Elisabeth Shaw

OPINION: CLOSING THE DEAL

Tim discovers a crucial deal cannot go ahead because a meeting was held 48 hours after it was supposed to occur. Without a properly signed and dated set of minutes, his client Sally stands to lose millions. Knowing this, Sally asks Tim to sign and date a set of minutes that purport to record the meeting as having been held before the deadline.

What should Tim do?

Solicitors are in a fiduciary relationship with their clients. This is a relationship involving good faith, reliance and trust, with the expectation that the solicitor will protect client interests and provide the best advice in their circumstances.

Sally might prize fidelity when Tim is dealing with her, but when her millions are on the line and she, the client, can only benefit from the deception, she might argue that Tim should lie on her behalf as that too is in her best interests. To Sally, this may not be a contradiction.

However, Tim is not just in relationship with his client, Sally. Through their contract, Tim is implicitly in a relationship with two other communities. Firstly, through Sally he is in relationship with the public. Each of his individual clients tell a story of Tim's practice. How does he want to be spoken about? On what basis does he want to receive referrals in the future? How does his practice foster a good impression of the legal fraternity (or not?).

Secondly, Tim exists in a professional community. What allegiance does he owe his profession? Would his profession say that the practice of falsifying documents to gain for a client is acceptable?

If Tim starts to think about the decision in relation to this one client, he is making an exceptional circumstance. There are two ways to think about this:

  1. Are my client's circumstances so exceptional that I should depart from my usual practice and go out on a limb for her? What are my own good, wise reasons for this? Would they stack up if reviewed by my peers?
  2. Is this possible departure in my practice something that can be universalised and used with all my clients? If not, why not?

Then there is Tim's relationship to himself.

What effect does it have on his moral identity and character to change his practices in light of client demands? At this stage it is a one-off request. Does Tim say "only once, never again"? But how will he feel about himself and his professional relationship with Sally if he agrees to her request?

Moral departures can cause stress and resentment, constructed as being "over a barrel" or "between a rock and a hard place". If he goes ahead "this one time", how can he guarantee the rest of the working relationship will be honest and back on track?

Sally might be grateful for his efforts, knowing full well she asked him to do something that betrayed himself and his profession. She might even give him a bonus to compensate him. But what happens the next time she has an unusual request? How does Tim regain his moral position when they both know he has strayed from his own path before? Do clients really want their solicitor to be dishonest? Are they ultimately relieved but also appalled?

What if a month later, Tim's colleague comes to him for advice in a similar situation? Does Tim recite the rules, or does his own decision to lie make him vulnerable to leading with that example instead?

Tim's decision making does not occur in isolation; he works in an organisation that can support, or neglect, the importance of good ethical decision making. Leaders of organisations generally want to be running an ethical enterprise, but sometimes still go on to act 'unethically'.

Instead, an active engagement in ethical practice makes a huge difference. From the point of recruitment, through to discussion at team meetings, professional development opportunities, line management meetings, mentoring programs and fostering active engagement with professional affiliations and self care, firms can help ensure that ethical practices are instilled in their practitioners.

However, when attending to all of one's professional requirements, it can be hard to keep this top of mind.

In these circumstances, getting an "outside" perspective can help clarify our own ethical framework. Sometimes we are restrained by the limits of our own imaginations, or blinkered by the terms of our own situations.

Support services, such as Ethi-call a free confidential service provided by the Ethics Centre can help legal professionals navigate ethical dilemmas. Lawyers should look for services that help them explore their issue with an ethics practitioner from the perspective of personal and professional values, philosophical perspectives and principles of good decision making.  This process will foster the practical tools and insight needed to make responsible and ethically sound decisions for the good of your clients, firm and self.

The Ethics Centre is an independent not-for-profit organisation. Make an appointment with Ethi-call on 1800 672 303 or visit ethics.org.au

Elisabeth Shaw is a clinical and counselling psychologist who heads up the Ethics Centre's Ethi-call service.

 
Author: Elisabeth Shaw
About: Elisabeth Shaw is a clinical and counselling psychologist and heads up Ethi-Call, a free and anonymous counselling service.

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