To succeed in the business of law, legal practitioners must negotiate a number of competing tensions. Angela Priestley asks if the ultimate loser is ethics

Lawyers are frequently reminded that they are, first and foremost, servants of the law.

But in a competitive legal environment, many legal professionals are not only servants of the law but also slaves to the businesses they work for: be that by answering to the shareholders of a listed firm; meeting the expectations of a client, partner or judge; upholding their own personal goals; or simply achieving their daily billing targets.

What results is a battle of competing tensions and one fundamental question: can a lawyer still uphold their ethical standards while at the same time answering to the competing pull of numerous external pressures?

The anonymous lawyer

In 2011, Australian legal practitioners are dealing with an increasing number of competitive factors.

Firstly, the structure of the legal profession has altered significantly in recent decades with a large portion of private practice lawyers now working in national law firms.

According to Jane Walton, an ethics advisor and founding member of the St James Ethics Centre, the swelling in size of law firms has further complicated the state of legal ethics.

"Partnerships require you to know each other … Ethics works in the villages where everyone knows each other," she says.

"But working in a large law firm you become anonymous. You don't know your partners. You don't see the consequences of your actions."

That's not to say that the lawyers in large law firms are unethical, but rather it's simply more difficult to retain a collegiate culture built on individual relationships and shared circumstances.

It's not just the size of firms, but also the sheer number of legal practitioners now in the profession, which has, says Walton, also bolstered legal ethics concerns due to the ability of lawyers to be more anonymous amongst the crowd than ever before.

Meanwhile, and in line with the nationalisation of the profession, lawyers are being urged to act more like businesspeople rather than as members of a profession. To a certain extent, excellent legal skills are no longer the only prerequisite for succeeding in the sector.

Lawyers are also dealing with increasing levels of demand from clients. They are being asked to adapt to new technologies for the provision of legal advice, to respond to enquiries more swiftly than ever before and to complete cross-border transactions at an accelerated rate.

And sometimes, such demands from clients run as counter-intuitive to the notion of upholding the rule of law. According to Walton, in a competitive marketplace, the desire to earn the relevant fees from a client's legal issue can easily outweigh any ethical concerns that may arise from representing a client on a particular matter in the first place.

Technology's information proliferation

Despite the pressures discussed above, the Queensland Law Society (QLS) and the Law Institute of Victoria (LIV) both maintain that the ethical concerns facing lawyers have not changed dramatically in recent years.

Representatives from both organisations told Lawyers Weekly that practitioners are seeking advice from their relevant ethics help services on issues regarding file and client management as well as emerging issues around social media, electronic communications and cloud computing.

For LIV's ethics manager Donna Adams, it's the issues surrounding the increasingly electronic nature of legal practice that are driving the bulk of ethics concerns at the moment.

"Apart from that, the ethical issues remain the same because the essential nature of the conduct rules and of our ethical responsibilities are the same as they've always been," she says.

"We know what we have to do to behave correctly and do the right thing by the client and by the court … But when changes in technology emerge, that's when we need to tighten up what our guidelines are in relation to those."

Changes in technology are certainly altering the nature of practice for legal practitioners. Technology is making the flow of information simpler and quicker, meaning lawyers have less time to stop and consider the advice they're giving and/or avoid giving advice or making a comment altogether. It's also raising the potential for mistakes, be it CC-ing the wrong person on an email, hitting "reply all" or posting a careless message on a blog or social networking site.

Technology has also raised difficulties around supervision. Where once a traditional structure existed that saw any written communication only ever leave a firm under the strict supervision of a partner's signature, technology has, over time, depleted such hierarchies.

Reid Mortensen, a law academic with a focus on legal ethics at the University of Southern Queensland, believes this raises ethical concerns. "With the advent of electronic communications and rapid file email and even text, it does mean that written communications leave a firm without supervision," he says.

Time-sheet temptations

Underpinning the pressures for lawyers is the ever-present commercial reminder of timesheets.

Frequently, time-based billing comes up as an underlying fundamental in some of the negative press surrounding the legal profession. Indeed, overcharging accounts for a bulk of complaints received by legal services conduct boards across the country.

It was a point recently raised by Queensland Chief Justice Paul de Jersey at the Australian Lawyers' Alliance in Queensland. De Jersey directly linked time-based billing to overstatement and dishonest claiming in the legal profession.

"My impression is that the most frequent derelictions - delay and failure to communicate, dishonesty, overcharging, and unauthorised dealings with trust monies - often have sprung from those sorts of pressures," he said at the conference.

"Modern practices have to tender for some work, and their approach must remain competitive if they are to retain the client. In this landscape, the pressure to gain the client and then 'win' for the client can be immense."

While there is nothing inherently unethical about time-billing and some may even put the topic outside of a discussion on ethics, it's the temptation that such a practice provides that is of concern.

"The opportunity for unethical billing practices is enhanced in time costing," says Mortensen. "Time costing has raised some very serious issues in terms of the incentives for padding and the disincentives for efficient work and so on, as well as charging out for non-professional time."

It may be as simple as upping the time spent on a matter to meet the six minute increment, or intentionally padding out timesheets altogether.

Ultimately, the pressures surrounding time-based billing for legal practitioners come down to the inherent conflict such a pricing mechanism creates. "The lawyer wants to maximise revenue and yet has a duty to act," says Mortensen.

"Billing will always take place in a position of conflict for lawyers. That means they have to be especially careful, but the difficulty with time costing is the amount being billed is not really as accountable to the client as would be the case with task-based or value-based charging. It's all within the lawyer's office. It's the lawyer who keeps the timesheet. It's the lawyer who is to be trusted to charge time accurately."

Also, according to Walton, the level of cynicism regarding the ethical nature of lawyers that such a billing method encourages outside of the legal profession is concerning. "This notion that the clock is constantly ticking is something I hear my commercial clients refer to in making cynical comments about the legal profession," she says.

Enhancing ethics

While those outside the profession (particularly in the tabloid press) might like to discuss the lapse of legal ethics and the failings of a small, dishonest few, it is from within the legal profession that changes are afoot, with a view to enhancing a lawyer's ability to maintain ethical standards and to seek help where appropriate.

Over the last decade, legal ethics has become a frequent discussion point for academics and judges. It is considered an essential learning requirement for law students and is constantly addressed in papers, speeches and seminars.

Ethics is also now intertwined as a compulsory part of a law degree and is reinvigorated every year for lawyers via compulsory facets of continuing professional development.

According to Mortensen, this has created a generation of lawyers with an excellent understanding of ethics and a heightened knowledge of the structure of the legal profession and its regulatory demands.

There is plenty of support available to legal practitioners. The introduction of Legal Profession Acts around the country, in line with the independent regulators and efforts by law societies to improve their guidance on ethics discussion has also played a role in defining a legal practitioner's understanding of ethics.

Such efforts are paying off. As Donna Adams from the LIV notes, when legal practitioners make contact with the Institute regarding an ethical question, they usually already know the answer and are merely seeking some confirmation.

Adams adds that the very fact lawyers are calling in the first place with such questions is testament to the fact lawyers understand there is a reason to be concerned about ethics. The LIV reports receiving around 250 ethical enquires every month while the QLS puts this figure around 300.

It seems that no matter how significant the battle between the competing pressures facing a lawyer, help is available and for the most part, simple to source.

Lawyers just need to be reminded, every now and again, that they're not alone and that no matter how high the workload, how demanding the client or how stressful the boss, there are certain things that must never be overlooked.