6 May, 2011
Story by: Vivian Yue
Photo by: Fiona Lyne
In a world where much emphasis is placed on corporations, the markets and transactions, issues of legal ethics beyond the buck are often neglected. Professor Kevin Lindgren QC shared his thoughts on the ‘Ethical Underpinnings of Business Law’ at a recent UTS Law and Justice lecture.
Eminent in Equity and Commercial Law, the former Federal Court Judge, Professor Lindgren, began by discussing some basic doctrines of the law of contract, and examined the ethical choices that some of those doctrines raise.
“An impresario offers $100,000 to the first person who suspends a high wire between two buildings and walks across it. A professional high wire artist sets up and begins to walk. Three quarters of the way across , the impresario, who has sold tickets to the event and is selling souvenirs and takeaway food at a great rate below, calls out ‘offer withdrawn’. The walker hears this. There is no contract because the act required to accept the offer was not done---walking right across. Yet we feel that there is an ethical question in there” says Professor Lindgren.
Brennan Leadership Program organiser and Sir Gerard Brennan Professor, Paul Redmond, says the seminar was a thoughtful exposition of ethical questions underlying the law of contract and contract-related doctrines. He was enthused by the large student turn out, and says, “The Moot Court in which the lecture was given was absolutely packed - no spare seats and a good number of people stood or sat in the aisles.”
Redmond says the lecture was invaluable for law students in their legal development. No doubt, the talk stimulated much discussion amongst UTS:Law alumni and current students.
“It makes no difference that the walker continues all the way across after hearing the revocation of the offer. The impresario is not contractually bound to pay the $100,000” said Professor Lindgren, “because the fact is that the offer was withdrawn before it was accepted. Is that a just result? Did the impresario behave ethically? Should the law provide a remedy or take the stance that the high wire walker has only himself to blame for not having negotiated a contract that prevented revocation by the impresario once the act of acceptance had commenced?”
Professor Lindgren shared his own encounter with an ethical issue, and asked students what they would do in his position. “Many years ago a firm of solicitors briefed me to give a written advice which I did. At some point, I forget when, they told me that they were going to show it to the opposing side in the hope of persuading them that their client was legally in the wrong. They came to me and asked me to delete a certain paragraph that was unfavourable to their own client, saying “It deals with a question on which we did not seek your advice” I re-read their brief. They were perfectly correct---they had not asked me that question, I had volunteered an adverse opinion on an aspect of their client’s case which lay outside the brief.”
"So what was to be done? I deleted the offending paragraph and put another in its place, saying I had not been asked to advise on the particular question and therefore expressed no view on it."
“I thought that was the right thing to do. One must respect the brief that one gets. I do not take the view that a lawyer must or is entitled to venture comprehensive advice on everything under the sun that the lawyer may think relevant. Apart from any other objection to doing so, you may not have been supplied with all the facts relevant to some of the issues on which you offer your opinion. On the other hand an advice should not be put out that is apt to mislead because of what it omits,” said Lindgren.
“There is an obligation on contracting parties, when performing their contract, to act reasonably and in good faith. Even if there is no implied promise to do so, the way in which contracts are construed means that elements of good faith and reasonableness will inevitably be taken into account,” says Lindgren.
Redmond says Professor Lindgren's lecture was a good reminder of justice and ethical choices that come with legal practice.
“Contract law is replete with ethical conundrums and it has been observed that it would be possible to teach a sophisticated course in applied ethics simply by reference to the law of contract,” says Redmond.
“Whether we think of it as ethics, as fairness, or as the justice dimension of legal rules and system, it is important for students to reflect upon the complex conversation that inevitably occurs between legal rules, and the values of the community that they are intended to serve.”
“Law, justice and ethics are not identical notions but they overlap in a complex, changing way. The relation between them varies across different areas of the legal system, but no part of the legal system is without its justice or ethics dimension, not even areas of business law that some may seem dry and technical.”