The ethics of right and wrong

Anyone who’s watched a few episodes of Law & Order, Boston Legal or JAG would appreciate some of the ethical dilemmas faced by practising lawyers. Can a lawyer cross-examine a former client? Are there rules about ‘ambulance chasing’ and is it OK to speak to the media about former cases?

Professor Reid Mortensen

Professor Reid Mortensen

Legal Ethicist, Professor Reid Mortensen, says every lawyer is asked the question: ‘Would you represent someone you know is guilty?’, but the majority of lawyers shouldn’t have to answer it.

“Criminal defence work is the most important and best-known aspect of lawyers’ work, but most lawyers never do it. However, for the minority of lawyers who practise in criminal defence – the answer is ‘yes’ – most make the decision to represent someone even if they know that the person is guilty.

“There are strict limits on how they can defend a person they know is guilty, but the valuable hallmark of our system is that it is not the lawyer, the press or public opinion that ultimately decides guilt.”

Professor Mortensen says the criminal defence lawyer is also often the custodian of dark secrets.

“They need to know everything their client can tell them – the whole story – if they are to defend effectively. They are also bound by law to keep those secrets. And that’s not a comfortable position to be in.

“We have to concede the possibility that there are lawyers in Queensland who might have been told by a client where bodies can be found, or where abducted people are.

“In the community it sounds incredible that the law prohibits lawyers passing on information of that kind; few, if any, lawyers would enjoy being bound to those secrets - this is the whole question of ethical collision.

"But lawyers very, very rarely breach confidentiality rules. There is no other profession that puts its practitioners inside such a cage of confidentiality.”

A member of the Ethics Committee for the Queensland Law Society, Professor Mortensen’s research into lawyers’ ethics have addressed their relationship with moral and legal theories of care, religious perspectives on legal practice, lawyers' character, the reform of the legal profession in Queensland and the management of client money.

“Ethics is a very rich area to research and write in because it includes areas about conduct and philosophies about how people should behave.

"It spans the field from mundane, boring and detailed –when should you be banking someone’s money? – to large philosophical questions on why we represent someone we know is guilty.”
Professor Mortensen says there is heightened interest in improving ethics education in law schools across the country.

“We cannot assure that we produce ethical graduates, but we can assure that graduates understand the ethics of right and wrong.”

In achieving this objective, USQ offers a stand-alone course in ethics in its law programs.

“USQ also embeds ethics in a range of courses, which is distinctive. Students are also learning more than the official regulation – the professional conduct rules. They are also to develop understandings of ethics in a thicker moral sense.”

With more than two decades teaching experience, Professor Mortensen also supervises PhD students and coordinates the Juris Doctor course at USQ. He has also conducted substantial research in international and comparative law.

As the author of the standard Australian text in this field, Private International Law in Australia (LexisNexis, 2006), Professor Mortensen has published research on international jurisdiction, the transnational enforcement of judgments and choice of law.