ABSTRACT
Empirical research has shown that theoretical legal ethics (TLE) is influential in legal practice. Accordingly, Chapter 4 analyses the elements of positivist TLE and an alternative: a moral concept of TLE. Contributions to the debate by prominent writers across three jurisdictions: Australia, US, and UK are analysed.
Positivists separate law and ethics, arguing that this enhances the validity of law, and that morality is not a requirement of legality. Moral theorists maintain that morality ought to be at the forefront of lawyers' ethics because this supports their role as professionals where a high standard of integrity is expected. Positivists’ have a client-centred view of TLE, with clients’ interests being paramount. These interests sometimes contradict lawyers’ professional duties, whereby complying with clients’ demands may challenge lawyers’ legal obligation to fulfil their professional duties.
Chapter 4 applies the principles of positivist TLE to lawyers’ key decisions in the James Hardie case. This also demonstrates the influence of TLE upon both lawyers’ advice to clients and the consequent decisions of clients.
