37 5.8 Ethical Infrastructure

Legal ethics compliance is most often framed as the responsibility of an individual lawyer. However, there are many processes, policies and systems that organisations such as clinics and firms can implement to support employees in acting ethically. Professor Ted Schneyer referred to this as “ethical infrastructure”, essentially

“[the] policies, procedures, systems, and structures – in short, the ‘measures’ that ensure lawyers in their firm comply with their ethical duties and that nonlawyers associated with the firm behave in a manner consistent with the lawyer’s duties.” (Ted Schneyer, “On Further Reflection: How ‘Professional Self-Regulation’ Should Promote Compliance with Broad Ethical Duties of Law Firm Management” (2011) 53 Arizona Law Review 577 at 585).

As noted in a Canadian Bar Association’s Guide, Assessing Ethical Infrastructure at Your Law Firm: A Practical Guide, examples of ethical infrastructure includes conflicts checks, billing protocols, template letters, or in house ethics counsel. It might also include more informal aspects of workplace culture and practices that help or hinder a lawyer’s ability to resolve ethical issues. For example, encouraging excessive hours of work might compromise effective work, or might encourage questionable billing practices.

The CBA Guide also reviews data from Australia that found the relatively simple process of self-assessing for ethical infrastructure – in essence, employing a reflective practice model – led to improvements in compliance and improved client service.

Focus on “ethical infrastructure” can help lawyers both systematize ethical compliance and think systemically and reflectively about prevention.