Professional Minimalism? The Ethical Consciousness of Commercial Lawyers

Abstract

This article investigates empirically, through semi-structured interviews, what shapes the professional ethical consciousness of commercial lawyers. It considers in-house and private practice lawyers side by side, interrogating the view that in-house ethics are different and inferior to private practice to suggest as much similarity as difference. In both constituencies, and in very similar ways, professional ethical concepts are challenged by the pragmatic logics of business. We examine how their ethical logics are shaped by these pragmatic logics, suggesting how both groups of practitioners could sometimes be vulnerable to breaching the boundary between tenable zeal for the client and unethical or unlawful conduct. Although they conceive of themselves as ethical, the extent to which practitioners are well equipped, inclined and positively encouraged to work ethically within their own rules is open to question. As a result, we argue professional ethics exert minimal, superficial influence over a more self-interested, commercially-driven pragmatism. INTRODUCTIOǸ

Does the Ethos of Law Erode? Lawyers’ Professional Practices, Self-Understanding and Ethics at Work

“…For instance, Gustafsson et al (2018) and Sandefur (2015) see lawyers' self-performance increasingly informed by the client-first maxim or the 'client service virtue', making lawyers ever-more dependent on their clients. Moorhead and Hinchly (2015), furthermore, argue that identifying with the notion of 'client service provider' implies a refusal of any professional responsibility outside the remit of commercial client focus.…”

“…Studies of the relationship between lawyers' identity and ethics at work have, further, elaborated on subjects such as the 'ethical lawyer' (Vaughan & Oakley, 2016), lawyers' 'ethical consciousness' (Moorhead & Hinchly, 2015) and 'ethos' (Aulakh & Kirkpatrick, 2018). As indicated, these studies are mostly underpinned by normative-prescriptive ethics approaches that seek to define what good legal practice looks like and often associate such practice with compliance with predefined codes and rules (Fasterling, 2009).…”

“…Such insights are echoed by Chow and Calvard (2021), who argue that the professional identity of corporate lawyers is "morally constrained", mainly due to the prevalence of "commercial-managerial imperatives" (p. 226) in law. Moorhead and Hinchly's (2015) study, furthermore, emphasises that the self-understanding of corporate lawyers is increasingly governed by what is portrayed as 'lawful' practice. Rather than engaging with questions of professional ethics, lawyers thus seem to reify ethical issues and turn them into technical-legal, managerial problems.…”

“…Let us recapitulate: prevailing studies of lawyers' identity and ethics provide insights into phenomena such as ethical reification, ethical misconduct and the role of accountability within legal practice. Some studies place emphasis on individual lawyers, ascribing to them an overall lack of 'ethical consciousness' and empathy (Moorhead & Hinchly, 2015), and thus suggest that lawyers are "unconcerned about the ethics of what they and their clients were doing" (Vaughan & Oakley, 2016, p. 71). Other studies problematise the legal field, specifically large firms, for fostering a 'morally constrained' climate (Chow & Calvard, 2021) and jeopardising good legal practice; as Vaughan and Oakley (2016, p. 74) put it, "an ethically minimalist subfield creates an ethically apathetic habitus".…”

“…Relatedly, the paper seeks to enrich extant studies on the ethics of/in law. These studies are either conceptual in nature (Luban, 2010;Philippopoulos-Mihalopoulos, 2015) or, in instances where the specific ethics at work are empirically explored, mostly normatively aligned (Moorhead & Hinchly, 2015;Parker & Rostain, 2012). They thus aim to define codes and standards of 'ethical' conduct and prescribe how lawyers ought to act (Dinovitzer et al, 2015).…”