5.9 Ethical Infrastructure

Gemma Smyth

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.

Reflection Questions

  1. In your workplace, note examples of “ethical infrastructure” embedded into your practices or the practices of other lawyers.
  2. Can you think of examples of other practices that might provide improved ethical infrastructure in your workplace context?
  3. What unique issues arise in an online work environment? What suggestions do you have to improve ethical infrastructure in that context?

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Learning in Place (3rd Edition) Copyright © 2024 by Gemma Smyth is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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