The Limitations of Codes of Professional Conduct – Accommodating Diversity in Practice at Law School

In Australia and many other common law jurisdictions, legal practitioners are governed by
a single generic code of professional conduct (where the profession is a divided one, there
is often a code for solicitors and another for barristers). Many commentators regard the
‘one code fits all’ approach to regulation of the legal profession as unsatisfactory given
that legal practitioners are increasingly engaged in diverse practice settings some of which
are non-adversarial in nature. These commentators argue that multiple codes of conduct
are required to deal with this diversity, and in particular, to help curb excessive adversarial
behaviour in processes where such behaviour might be inappropriate.
This paper is in two parts. The first part identifies and evaluates alternative ways of
regulating the legal profession so as to accommodate diversity in practice. It discusses the
possibility of promulgating:
1. multiple specialised codes for different areas of law (family law, criminal law,
bankruptcy law and so on) and/or for different processes (such as litigation, mediation,
unassisted negotiation);
2. ‘middle-level’ codes, somewhere in between general codes and a totally discretionary
approach to legal ethics. Middle level codes might be based on a number of categories
including task, subject matter, lawyer position (eg sole practitioner versus large firm) and
client position (eg individual versus corporate client);
3. a contract model in which lawyers and clients can contractually choose the ethical
obligations under which they want to operate.
Given the lack of consensus on this topic and the fact that all of these models of
regulation are inherently limited, the author concludes that the best and most likely
possibility is the continued regulation of the profession through one general uniform code
of conduct. If this is indeed the case, the challenge of modifying adversarial traits –
assuming modification is necessary, and of educating for diversity in practice, falls to law
schools. Part two of the paper offers some suggestions for meeting this challenge. It
considers the variety of ways in which non-adversarial values and methods can be
incorporated into the curriculum, learning objectives, learning and teaching methodology
and assessment regimes.