This meant, she said, that one could count on lawyers to come to the defence of those willing to take on controversial causes, “to the extent that doing so would demonstrate nobility and courage through the lawyer risking their reputation in the process”.

However, “this sentiment is now under attack and more controversial” than the increasing influence of progressive ideology, said Ms Vlahos, who won the Wellness Advocate of the Year category at the 2022 Women in Law Awards.

In fact, she said, “it now places into question an understanding of our legal system and a lawyer’s role within it”.

Societal expectations versus the ‘cab-rank rule’

Speaking to Lawyers Weekly, following her appearance on a panel exploring, ‘Do bad clients deserve good lawyers?’ at the recent International Bar Association annual conference in Miami, Ms Vlahos, a mentor and lawyer at the Leo Cussen Centre for Law, said an ethic that valorises lawyers for representing unpopular causes relies on an understanding of the law as an inherently moral endeavour that demands lawyers who possess not only certain knowledge and skills but also a certain kind of character.

“To administer justice is difficult, let alone when public sentiment is strong,” she reflected.

“Biases and pre-judgements prevalent outside the courtroom have the capacity to influence the perception of the case in the courtroom. In these cases, good, competent representation of an unfavourable client with the public is especially needed to combat such prejudices and ensure compliance with the procedures associated with the sanctity of the adversarial system to produce an informed and dispassionate selection,” she outlined.

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“In doing so, this representation will help to prevent injustice when a cause is in disfavour because the public’s view is justified and because it dispels doubts about the correctness of the decision and therefore the fundamental legitimacy of the legal system.”

According to Ms Vlahos, if we look at it this way, the adversarial system is a moral endeavour that calls lawyers to be formed by the legal system of which they are a part — a system whose purpose is to enable people to realise their full capacity for impartial judgment.

“For it to function effectively, however, lawyers must not only comply with its established rules and procedures but also understand themselves within the context of the system and perform responsibilities associated with their roles within it. The willingness of lawyers and others to criticise those who represent unpopular causes suggests that our culture is ceasing to see our legal system as a ‘moral endeavour’ and rather, that the law is merely a tool,” she detailed.

“The prevailing view seems to support this — nothing good or bad and the uses to which it is put. Therefore, because the law can be used for good or bad, the practice of law itself is neither good nor bad.”

“This view suggests that the lawyer is merely a service provider who can wield the tools of law to service their client’s objectives. The danger is when lawyers try to use the law to accomplish their ends, rather than asking themselves how they can serve the law’s ends — the system becomes distorted and risks its efficacy and legitimacy.”

Solicitors are not bound by the “cab-rank rule” that applies to their barrister colleagues, Ms Vlahos went on, and therefore, those practitioners do not have an obligation to accept a retainer.

“Requisite due diligence should always be conducted weighing in on the tenets of effective risk management and ethical decision-making. Under the Legal Professional Uniform Law, Australian Solicitor’s Conduct Rules 2015, a solicitor may only terminate a retainer only in accordance with the reasons set out in Conduct Rule 13. These include as agreed with the client, and for just cause on reasonable notice.”

As lawyers, we understand that justice and the rule of law are inextricably linked, Ms Vlahos declared.

“It is imperative that lawyers realise they have a unique social responsibility where legal practice remains a profession and not just a business. The rules of professional conduct are there to serve as a compass, rather than as a burden.”

Importance of lawyer-client relationship

The lawyer-client relationship is, of course, the most important aspect of a lawyer’s professional life. When lawyers retain a client, Ms Vlahos noted, they become bound by ethical and professional duties: “a mixture of status and contract emerges from the nature of the relationship governing the lawyer and client”.

Observance of these duties, she said, is indispensable under the rules governing standards of professional conduct for lawyers.

Against this backdrop, there is a growing recognition that clients today have more power and choices in selecting a legal provider than ever before.

“As a result, they can dictate terms, prices, working conditions and team members. Clients want to be regularly heard, briefed, and receive key reporting,” Ms Vlahos pointed out.

“They also want operational advice with enough data to drive proper decision-making. In fact, clients want their outside law firms to know their business, industry and competitive threats as much as clients themselves do.”

Law firms should, as a result, be “turning their once transactional relationships into [transformational] partnerships”, she suggested, which effectively serve as an extension of the client and its in-house legal department.

“Clients want this connection because it serves their best interests by having the breadth and depth of a law firm’s resources standing behind them as they deal with this onslaught of disruptive risk factors. This relationship requires law firms to take a team approach,” Ms Vlahos argued.

“In fact, law firms that fail to recognise this change in mindset may leave the client with no other choice but to seek a comprehensive approach elsewhere, simply because today’s business and legal issues are too intertwined for these one-off relationships to succeed.”

Perceptions of legal professionals

Despite being one of the most highly regulated professions in the country, Australians’ perception of lawyers’ honesty and ethical conduct is consistently ranked among the lowest in our community.

This has been borne out year after year by the Ethics Index, conducted by the Governance Institute of Australia. The latest findings pertaining to perceived ethical conduct by lawyers can be found here and here.

The reality, of course, is that most lawyers do behave ethically. However, Ms Vlahos added, “there is uncertainty and differing opinions regarding what lawyers ought to do and what they are perceived to be in the public’s mind”.

Such a sentiment is attributable, she pointed out, to circumstances such as the recent ‘Lawyer X’ Royal Commission in Victoria, as well as the allegations levelled against former High Court judge Dyson Heydon.

When asked to what extent Australian lawyers should not only take into account such poor perceptions but also consider the moral or ethical imperatives of taking on certain clients, Ms Vlahos responded that the legal world is “entering a new era”.

It is an age, she said, in which law firms have positions on a range of issues reflected in the clients they represent.

“Knowing how they respond and communicate externally is now at the forefront of discussion. Awareness of climate change in the public consciousness is one factor, as is the accompanying rise of ESG concerns. Public pressure, through increasing mass civil disobedience is another,” she listed.

“For firms themselves, continuing to maintain their reputation to attract the best talent is clearly a leading incentive, as more socially conscious Gen-Z employees enter the workforce.”

“Workplace culture is completely transforming with the rise of employee activism and social media weaponisation, accelerating a need to understand the forces driving ethics to assist firms [in deciding] on their stance and communication strategy,” Ms Vlahos outlined.

“The result of all these factors has led to a critical analysis of client portfolios and myriad difficult conversations around taking a public stance.”

Nuanced thinking about professional success

Ultimately, Ms Vlahos concluded, ethical businesses will outperform competitors’ organisations.

She stressed that the legal profession needs to formulate a more nuanced definition of success that not only factors in profitability and personal gain but also considers the impact on stakeholders and the environment around us.

“This model definition of success should transcend education and become integrated into the respective business models of practice,” she said.

“Firms should not be sitting back and hoping things will work out.”

Rather, Ms Vlahos opined, they need to be “pre-empting future events and safeguarding risks by building purpose into their business models and demonstrating through measurable outcomes that benefit multiple stakeholders and the broader public”.