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Palermo, Josephine; Evans, Adrian --- "Australian Law Students' Values: How They Impact on Ethical Behaviour" [2005] LegEdRev 2; (2005) 15(1&2) Legal Education Review 1





Australian Law Students’ Values:

How They Impact on Ethical Behaviour



Josephine Palermo* & Adrian Evans**

Introduction

This paper focuses on the values that underpin legal practitioners’ behaviour. In a globalising legal profession information about the values bases’ of lawyers is critical to understanding the ways in which a “justice agenda” (arguably, a primary responsibility of the profession) may be sustained into the 21st century. However, there has been a dearth of research into the value systems of lawyers or law students. This paper attempts to investigate what values are characteristic of the mass of Australian lawyers in their last year of law school. It is part of a larger longitudinal study, now nearing completion, which aims to provide longitudinal information about the value sets of these same law students, as they become early-career lawyers and to understand how their values develop or degrade over time.

Public and professional discussion about lawyers’ behaviour is perennial to the point of cliché in many national legal systems. Commentary thrives because it is ordinarily based on anecdotal and usually passionate, “war” stories. The latest of these cases is perhaps amongst the worst. James Hardie Industries, with the active cooperation of its in-house counsel and external lawyers, deliberately relocated its corporate headquarters to the Netherlands in order to avoid paying billions in compensation for asbestos-related diseases caused, with its knowledge, by its building products.1 Yet these war stories, although often accurate,2 are dismissed because they are seen as “one offs” and not demonstrable of any wider reality. While anecdotes might influence politicians, they do not necessarily persuade Law Deans or the profession that systemic problems are involved. Even the recent findings of the HIH Royal Commission, which included a call for renewed vigour in tertiary ethics education,3 have not obviously affected either the learning priorities of law schools or the approach that the profession takes to dealing with disciplined practitioners.

Post the Enron Corporation collapse,4 some say that ethical sensitivity has become significantly more important to both business and the legal profession in western jurisdictions, but this is a doubtful proposition. When things get tough, lawyers still retreat into the bunker, with the statement that “ethics are no more than what the law requires”.5 The reality – that legal ethics is/are considerably more than what the law requires – is confronting because such a focus requires an adherence to notions of justice which can edge out some client demands. The actual relationship between the quality of justice and the values/behaviour of its (legal) practitioners is accordingly of obvious importance to an international “justice priority”, arguably even more so, now that we are facing a choice between whether or not to fully support the Rule of Law, within a “War on Terror” context.

We have focused on values not only because they may be said to underlie “ethics” at a fundamental level, but also because they are widely discussed nowadays, although rarely investigated. Law schools have always assumed homogeneity in values and it has suited the profession to go along with this view. An initial task in our investigation was to establish whether there is an empirical basis for the assumption that lawyers’ aspirations are based on shared personal and professional values. Having established whether the assumption is empirically correct, we then need to ask “what role does education play in the reinforcement of personal values appropriate for the legal profession?” and “what attitude can the profession play to values, in the post-admission context?”.

The concept of value systems has been of interest across a wide range of social scientific research.6 Milton Rokeach’s theory of human values identified values as mental entities or very general attitudes, personality types, or individual collective ideas that serve as standards or criteria of conduct.7

Studying value orientations is therefore important because a substantial body of research indicates that values predict world views and hence have great potential to predict behaviours in work places.8

The influence of personal values on decision making has also recently been recognised as an integral factor in theories of managerial decision making.9 These are important relationships for lawyers, considering the diverse destinations of law graduates. Lawyers who subscribe to values which emphasise the importance of wealth creation or employer loyalty (above all else) may be inclined to behave consistently with those attitudes within their professional environments. Issues of systemic justice and ethical decision-making may therefore at times run counter to decision-making priorities in some firms and institutions.

Research that has studied the relationships between values, attitudes and behaviours indicate that there is a weak direct relationship between values and actual behaviours. However there is evidence of strong relationships between values and behaviour relevant attitudes.10 These include attitudes towards civil rights, international affairs, religion, political activism and choice of academic area.11

Due to the indirect effects of personal values on behaviour, research findings are mixed in organisational and business contexts. In a study of male partners in CPA firms, researchers found that personal values had little impact on auditors’ perceptions of the moral intensity of an ethical dilemma.12 Earlier, McCarthy13 had found no significant relationships between personal values and ethical orientation in her sample of American accounting students. She specifically compared the value systems of first-year Accounting students and those at the end of their degrees, and concluded that little evidence existed that ethical orientation improved through their exposure to codes of ethics or completion of ethics subjects.

However, the existence of gender differences in value hierarchies of men and women is evidenced in a plethora of studies. For example, Hotel,14 who interviewed 36 lawyers predominantly practicing in family law, found that men were less likely to identify moral conflict in a particular scenario because they were more likely to identify fully with their professional role. Their vocational identity was that of “hired gun” where they perceived no greater obligation than that to the client, thus abdicating any moral or ethical responsibility to themselves. Kreie15 also found significant differences between male and female students in their assessment of ethical and un-ethical behaviours. They found that women tended to be more conservative, and were more likely to consider environmental cues as well as their personal values.

While other studies have addressed the effects of values on ethical decision making in an auditing context for Accountants and business professionals, the current study is the first Australian study to address, empirically, the effects of values on ethical decision making in the legal context, among legal professionals. The study investigated the impact of value weightings on reported behaviors in a number of ethical scenarios for male and female students in their final year of their law degree. Results are reported here with a minimum of conventional statistical format, before discussion of the educational and re-educational implications.

Method

Participants

Law Faculties across Australia were asked to assist in distributed surveys to students enrolled in the final year of their law degrees. Seven hundred individuals responded to the mail questionnaire, representing approximately 18 per cent of a population of four thousand Australian final year law students. All jurisdictions were represented in the final sample, although most respondents came from NSW, Victoria and Queensland. Females accounted for 61 per cent (n=431) and males 39 per cent (n= 272) of respondents. Sixty per cent of the sample categorised themselves in the 18-25 age group and 72 per cent classified themselves as “Australian”.

The majority of the sample were single (70%) and had no children (84%). Most had parents with professional, teaching or business backgrounds. Based on the Australian Bureau of Statistics (Index of Education and Occupation) classification of socio-economic status16 as derived from postcodes of residence, most of the sample was classified as residing in homes with high socio-economic status classifications (61%).

Nearly 70 per cent had completed an “ethics” course and might therefore be thought to have some exposure to the ethical issues of practice, while only 40 per cent had experienced a “clinical” course.

All in all, we consider the sample was representative of the population of law graduates in Australia.

Effects of Values on Ethical Decision Making

To examine the effects of value weightings on ethical decision making, it was necessary to situate respondents’ responses within contexts that provided for ethical dilemmas. The survey utilised an oblique measurement of law students’ values, based upon their own responses to survey questions which were piloted in a 1998 survey of Monash law graduates.17 Rather than directly ask students about their values, we deployed the practice of the hypothetical situation, adding a personal dimension to further reduce the level of abstraction and assist in actual values identification. Extracts of scenarios presented to participants are presented in Table 1.

Table 1

Scenarios used to elicit ethical responses

Scenario 1 – Pro Bono: You are a new solicitor working in a large commercial law firm. The matter requires a lot of time and work. Your senior partner however wants you to increase your billable hours for the firm. The firm does not usually do any pro bono work but there is no actual policy against it. Your time is currently so limited you could only realistically do one or the other. Would you agree to work on the public interest case?

Scenario 2 – Personal v Professional: You are a junior associate of a small commercial law firm with a niche reputation in the area of privatisation tendering processes. Your firm has been tentatively approached by a significant corporation to help them draft their tender submission for a privatised public transport contract. Your firm would almost certainly gain an enormous amount of new work from this corporation if you were to take them on as a new client. At the same time you become aware that a close friend, who has not previously been a client, is about to request and will expect your help with their tender for the same government contract. Would you act for the corporation and therefore detrimentally effect the relationship with your old friend?

Scenario 3 – Personal v Professional: You are a Partner in the firm of AMBD. Your nephew (the son of your elder sister) is an associate in the firm. You discover your nephew has a minor gambling problem and has taken money from the firm’s trust account to cover his debts. Would you report the matter to the local law society?

Scenario 4 – Insider Trading : A corporate client of your firm, for whom you have done some useful work, takes the partner responsible, yourself and others in your section to lunch to celebrate (confidentially) the award of a tender. You know that the client is grateful and wants to recognise your collective contributions to this particular success. The client CEO says as much and, in addition to the usual hints about more work, speculates off-handedly that the price of the company’s shares is likely to reflect the win once it is all announced. Would you purchase shares in the company before the public announcement of the tender success?

Scenario 5 – Work over Family: You are a junior solicitor working for a large city firm. The long working hours are causing a lot of pressure at home with your partner and your young children. The firm’s managing practitioner asks you to show commitment on a file. This would involve even longer hours than usual with many late nights for at least the next month. Working longer hours would cause a serious argument at home and be highly detrimental to your relationship with your family. Would you take on the extra hours?

Scenario 6 – Personal Loyalty: You are a sole practitioner specialising in family law. A client approaches you to handle his divorce. You and your spouse have been good friends of this person and you also know his wife and children reasonably well. Whilst drafting the property settlement you suspect your friend has not declared all his assets. Your friend says that his list of assets is complete. You are not convinced but you cannot realistically get more information. Would you continue to represent your friend?

Scenario 7 – Family v The Law: You are a DPP prosecutor who has concentrated on drug trafficking cases. You have argued to many juries that every case of drug dealing harms society and must be reported and dealt with by the Police. You discover that your daughter has been selling cannabis to other students at her school. Your partner implores you not to report the matter and threatens to end your relationship (already strained by overwork) if you do. Would you report the matter to the Police?

Scenario 8 – Rounding-up Hours While on a summer clerkship with a large and well-respected commercial firm, you are (naturally) concerned with making a good impression. It is your second last year of law school and you are desperate for Articles. The partner supervising you decides to give you some of her files to get ready for “costing”. She asks you to total the number of hours which she has spent on each file and, from her harried expression, it is pretty clear that she is concerned to charge out a significant amount on each file. She asks you to “round up” her hours to the next hundred in each file, saying that, on average, clients are happy because the main thing they demand is quality work. You know that these clients are entirely satisfied with the firm and that your supervisor is not about to debate the issue with you. Would you round up the hours as requested?

Scenario 9 – Proposals to political party donors As a young and aware lawyer, you have for some years been anxious that the major political parties are unaware of or too nervous about the seriousness of global warming. As a pro bono contributor to the Greens’ election effort, you are asked to assist its local candidate by raising campaign funds from progressive law firms, barristers and old friends from law school. Your preferred approach, already quite successful, is to verbally represent to potential donors that you will “put in a good word” for them when it comes to contracts and consultancies, in the event that the Greens are successful. You fully intend to act on your promise to donors should the Greens achieve this balance, but you know that the party is very “pure” and virtually certain to consider itself uncommitted to any corporate benefactor. Would you make the proposed representation to potential donors?

Scenario 10 – Counselling a Colleague: You and your best friend founded a practice together 10 years ago. The practice has been moderately successful. Your friend (and Partner) has just been through a complex and bitter divorce. Since he has been separated from his family his only interest is work. You have begun to notice personality changes which lead you to question his mental stability. His advice in some matters has become legally questionable and may be in breach of professional standards. He has rejected any suggestion of needing a break or some professional treatment. Would you ask the local law society or regulator to arrange to counsel him?

Scenario 11 – Confidentiality: You are acting for a mother of three small children in a divorce and intervention order matter. Your client has previously shown you some old photographs of bruises and marks on the children which she claims were inflicted not by their father, but by her new boyfriend. One of the children now has blurred vision. Your client now instructs you to stop all legal proceedings as she intends to return to the children’s father with her children. You believe the children will be at risk if this happens but you know “mandatory reporting” does not apply to lawyers in your state. Would you break client confidentiality and inform the relevant welfare department of your fears?



Participants were asked to indicate their probable behaviour, and after reflecting on their decision they were also asked to weight the importance, in making that decision, of a number of behaviour relevant values (BRVs), on a scale ranging from 1 = not important to 5 = very important. Since the scenarios were also relatively commonplace, it was reasoned that a degree of personal identification with the lawyer’s dilemma (in each scenario) would emerge. We then applied statistical methods to the responses, in the interests of producing the “hard data” that might influence professional opinion. Behaviour relevant values specific to each of the scenarios were used as independent variables in analyses of variance of reported behaviour, for each of the 11 ethical scenarios.

Results

Reported Behaviours

In order to establish the general pattern of reported behaviour, frequencies of behavioural indicators for both samples, and males and females were examined and are presented in Figure 1. While the majority of responses are in the expected direction, the number of participants who indicated they would choose to act in ways that could be generally considered as opposed to the requirements of professional codes of conduct was surprising. For example, only a small majority of the sample would agree to take on pro bono work in Scenario 1. Further, a minority of the sample would report a trust account deficiency in Scenario 3, whilst over 55 per cent would round up hours in Scenario 8, and misrepresent covenants to potential donors to a political party in Scenario 9.

Chi-square tests were conducted to ascertain whether there were any significant association between reported behaviours and gender. Results suggested that females would be significantly more likely to take on the pro bono work (χ2 = 3.98, p < .05); refer the colleague to the local law society or regulator (χ2 = 10.08, p < .01); and break client confidentiality and inform the relevant welfare department (χ2 = 15.82, p < .001).

Results also indicated that females were slightly less likely to report the trust deficiency (χ2 = 5.65, p < .05); purchase shares in a company before the public announcement of the tender success (χ2 = 6.33, p < .05); continue to represent the friend in the divorce proceedings (χ2 = 21.52, p < .001); and make the misrepresented presentation to donors (χ2 = 7.20, p < .01).

Figure 1: Proportion of males and females who indicated behaviour generally considered to be consistent with professional codes of conduct in scenarios



Values Dimensions as Predictors of Reported Behaviours

We then began to work out which values most influenced the decisions made, in either direction. Mean (or average) responses on behaviour relevant values (BRVs) for each scenario were analysed to investigate differences in value weightings assigned according to participants’ reported behaviour. As results in Figures 2 to 518 demonstrate, there were significant differences in BRVs according to how participants’ reported their behavioural choices on different scenarios. Where there were gender differences on BRV values, females tended to weight BRVs as more salient to their decisions than did males. In other words, female law students appear to more closely identify with values, per se.

Figures 2 and 3: