Can Stoic Virtues Help Modern Lawyers Meet their Ethical Obligations?
Paper presented at Clayton Utz on Wednesday 22 November 2023, at the Hellenic Association of Lawyers QLD Chapter Freeleagus Oration by the Honourable Justice David Boddice.
When I was first asked to present this oration, I have to confess that I found the topic intellectually stimulating, but privately queried its ability to be something of a drawcard. To many, I feared it would be too philosophical.
After all, stoic philosophy was founded in Greece, around 304 BC, by Zeno, a merchant who underwent changed circumstances.
However, as I commenced my research, I found that rather than being philosophical, stoic virtues are the essence of the ethical legal practitioner. I thought the topic should read, “How stoic values frame modern lawyers’ ethical obligations”.
Further into my research, I realised that the topic is a little broader than my re-framing would allow. That arises because stoic virtues involve not only courage, temperance, wisdom and justice. They embrace a mindset, to prevent the onset of negative emotions, a resilience to deal with adversity in our daily lives and a commitment to serving in and for the public good.
Those three matters are important for the modern legal practitioner. The sheer size of the profession and the fast pace at which laws change, mean the practice of the law, by the ethical legal practitioner, requires vigilance. Vigilance to the observation of the stoic virtues, vigilance in maintaining their own mental health and vigilance in reminding themselves of the all-important public good.
Looking after the mental health of the modern day legal practitioner has become a particular priority as the profession becomes bigger and less personal. Many practitioners do not know, either professionally or personally, the legal practitioner acting for the other parties; a very different scenario to the professional world Alex Freeleagus entered when he was admitted as a solicitor 70 years ago. Then, the profession was small. Professional engagement occurred in the context of practitioners personally knowing each other, often from their university days. Contact was also more personal, rather than the impersonal email communication of today. Practitioners could look after each other. They knew the individual practitioner and could detect when they were struggling, personally or professionally.
It is for that reason that mindfulness, a concept deeply intrenched in stoicism, is so important. Its importance is recognised by it being a feature in most Continuing Education programs for practitioners and judicial officers.
Resilience is especially important in the impersonal world. The long hours tend to deny many the benefit of life balance, and a grateful client is often hard to find, even after the legal practitioner has given their all.
The need for practitioners to remind themselves of their obligation to work in and for the public good, also arises because of the pressures of daily practice. The meeting of budgets means a legal practitioner can quickly lose sight of the fact that the ethical practice of a legal practitioner involves a meeting of the public good.
That can be seen in our ethical obligations. It is why legal practitioners are not mere mouthpieces for their clients; it is why there exists the overriding obligation of the duty to the court. It is for the public good of society in general that legal practitioners do not positively mislead a court in the pursuit of a client’s case. It is for the public good that a court is not to be misled by legal practitioners not referring relevant authority, even though it is contrary to the client’s wishes or eventual outcome.
Stoicism should be a guiding light for the modern legal practitioner. Its focus on excellence in all you do, on dealing with that which you control, rather than focusing on that over which you have no control, and on recognising that our days are naturally in constant flux. It provides a blueprint for handling the professional responsibilities of a legal practitioner.
Marcus Aurelius, the great emperor and arguably the most influential stoic philosopher, even had a summary for the daily legal grind. He wrote, “Today I shall be meeting with interference, ingratitude, insolence, disloyalty, ill-will and selfishness. All of them due to the offender’s ignorance of what is good or evil.”
Many could relate with that summary (although it is somewhat scary to think that even the most powerful man in the world started each day with that thought).
I did not have the fortune of personally knowing Alex Freeleagus. I did, however, know him by reputation. When I commenced my career in the law, almost 40 years ago, Alex had been a partner in major commercial solicitors’ firms for approaching 30 years. Although he was in the latter part of his career, Alex was rightly seen as one of Queensland’s foremost solicitors and a leader of the profession.
His reputation was that of a legal practitioner who gave wise advice, who was courageous in the pursuit of his client’s interests, who was unfailingly measured in his dealings with others and whose goal was the pursuit of justice, in the best traditions of the ethical legal practitioner.
That reputation represented stoic virtues; wisdom, courage, temperance and justice.
When Alex Freeleagus first practiced, a written Code of Conduct did not exist in the form now governing barristers and solicitors in this State and nationally. There was no need, because it was the mark of a professional to show not only competence, but to also practice ethically.
At that time, a legal practitioner, as an officer of the court, had well-known and well-defined ethical obligations, although they had not been reduced to the more formal Code of Conduct of today.
Those ethical obligations now appear in the Codes of Conduct under rules providing for the duty to the court, the duty to the client, the duty to your opponent, the need for independence, the responsible use of court processes and privileges, the integrity of evidence and the efficient administration of justice.
The overriding duty to the court, and the need to act with independence and in the interests of the administration of justice, encapsulate the stoic virtue of justice. For stoics, justice is our duty to our fellow man and to our society. Marcus Aurelius, in Meditations 9.31, described it as thought and action resulting in the common good. Justice, above all other virtues, guides the ethical legal practitioner. It is the moral compass. It is about upholding our responsibilities to our fellow humans. As Marcus Aurelius wrote, “that which is not good for the beehive cannot be good for the bees.”
On occasions, compliance with these obligations requires courage. It can be very difficult for the younger practitioner, and sometimes for the even more experienced practitioner, to explain to the lay client, obsessed with all the emotional baggage which attends being a litigant and believing that their good money is being paid so that they may win their cause, come what may, that your overriding duty is to the court. Courage is standing up for what is right, even when it is difficult or unpopular and especially when it is contrary to your own interests.
The duty to your opponent and the duty to responsibly use court processes and the privileges attaching to a legal practitioner, encapsulate the stoic virtue of temperance. For stoics, actions are guided by reason, not emotion. The ethical legal practitioner must not allow emotion or rashness to interfere with the ethical practice of the law. A “win at all costs” approach, or indeed, a “them and us” approach to one’s opponent, is contrary to a practitioner’s ethical obligations. Civility in communications is crucial, as is the ability to keep emotions under control. Each day, we come across the difficult and the self-obsessed. Some days we do so more than once. The ethical legal practitioner has the obligation to respond calmly and rationally. As Aristotle said, temperance is doing the right thing, in the right amount, at the right time.
Whilst justice is the guiding virtue, wisdom is often considered to be the primary value in the four virtues of stoicism. Justice is wisdom in social life. Courage is wisdom under pressure. Temperance is wisdom in decision-making.
It has been said that the stoics define wisdom “as the knowledge of things good and evil and of what is neither good, nor evil”. Wisdom is knowledge “of what we ought to choose, what we ought to be aware of, and what is indifferent”. With this knowledge, wisdom informs action.
Throughout my life, I have worked on the principle that you do not do anything in this world for acknowledgment. As I tell my children, if you do, you will live in a permanent state of disappointment. The practice of the ethical legal practitioner involves doing the very best you can, each and every day, with what you have. That involves using your skillset against the backdrop of factual circumstances of a particular case and the law as it presently exists. Success or failure often has very little to do with the particular attributes of the legal practitioner. It is due to the factual matrix in the context of the existing law, best presented by the competent legal practitioner, acting with wisdom, with courage, with temperance and with the overriding sense of justice.
Once it is understood that the ethical legal practitioner practices on a daily basis under the auspices of stoic virtues, we can understand how it is that that legal practitioner is able to deal with the unpredictable, moving to solve the consequences of the actions (or inactions) of others in an environment over which that legal practitioner has little control. The capacity to use reason, allows the making of the right choices. These choices improve the lives of the legal practitioner’s clients and ensure the maintenance of the central pillar of any good society. That pillar is the rule of law.
Virtue, in the stoic sense, is the highest form of excellence and the best expression of human nature. A virtuous life, in the stoic sense, helps us respond constructively to the challenges of modern day legal practice, by making wise decisions calmly, despite the unpredictable nature of the modern world.
No matter what happens, the modern ethical legal practitioner always has the capacity to reason, so that the choices involve doing the right thing in the public good.
Alex Freeleagus did not need a written Code of Conduct to behave as the ethical legal practitioner. It is to be hoped that no legal practitioner requires a Code of Conduct to behave ethically. The written Code should be seen as expressing, for the layperson, the constraints within which the competent legal practitioner can act in the pursuit of a client’s cause. It explains to the layperson why their legal practitioner cannot be their mere mouthpiece. It explains to the layperson that the efficient administration of justice and the overriding duty of the court are the frameworks within which the ethical legal practitioner must operate, if the administration of justice is to remain for the benefit of the public good.
The final word should, however, be left to Greek philosopher Epictetus’ observation of the attributes of the human being, as they may hold the key to how the modern ethical legal practitioner deals with the challenges of future professional life, where there will be much more misinformation in the public domain and the increasing use of artificial intelligence to create what is available in the public domain. Epictetus observed: “We have two ears and one mouth so that we can listen twice as much as we speak.” And since we have two eyes, we are obligated to read and observe more than we talk.