Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client)

Three usually unexpressed, and too often unnoticed, conceptual dichotomies underlie our perception and understanding of lawyers’ ethics. First, the existence of a special body of professional ethics and professional regulation presupposes some special need or risk. Criminal and civil law are apparently insufficient. Ordinary day-to-day morality and ordinary ethics, likewise, are not considered to be enough. What is the risk entailed by the notion of a profession that is special; who needs protection, and from what? Two quite different possible answers to this question provide the first of the three dichotomies examined in this article: one can understand the risk as primarily to a vulnerable client from a powerful professional; or, to the contrary, from a powerful client-lawyer combination toward vulnerable others. Second, what is the foundational orientation of lawyers? Are lawyers serving primarily their particular clients, and those clients’ preferences, choices and autonomy? Or is the primary allegiance of lawyers to some community or collective goal or interest distinct from the particular goals or interests of the client? The third dichotomy concerns not the substance of the risk, or the primary orientation, but the appropriate means of responding to that risk or that fundamental obligation. Should professional ethics be implemented primarily through rules? Or, should we rely on character and the discretion of lawyers to make a thought out, all things considered, decision? Each of these three presents a fundamental difference in how we perceive and address issues of lawyers’ ethics. Each affects our understanding and analysis on multiple levels, from (1) determining the appropriate or requisite conduct in a particular situation, to (2) framing a specific rule or approach for a particular category of situations, to (3) more general or abstract theory or policy. A person’s inclinations in regard to the dichotomies affects the conclusions that person will reach on each of those levels of analysis, yet those inclinations and assumptions are frequently unexamined and unarticulated. One’s position on each of the dichotomies tends to structure the approach and outcome without the issues and choice having been explicitly addressed or possibly even noticed. This article is an effort to ameliorate that problem. Part I addresses the question of what is the risk in the work of lawyers, or the function of lawyers, for which professional ethics is the answer. The concluding section focuses on the particular problem of the corporation as client. Part II then asks the related and possibly consequent question of what is the foundational orientation or allegiance of the lawyer? Is it to the individual client? Or is it to some larger community interest? Again, the concluding section focuses on the corporation. Part III turns to the means or method for addressing the obligations and possible problems of the professional ethics of lawyers. Should lawyers’ ethics guide and confine the conduct of lawyers primarily through rules? Or should it function primarily through reliance on the knowledge, judgment and character of lawyers? If the latter were the guide, ethical decisions would be made on a situation by situation basis under the discretion of each lawyer. Toward the end of each discussion possibilities for bridging the dichotomy are considered (and with such bridges each dichotomy may come to look more like a spectrum or continuum.). At several points after its introduction in Parts I and II, the special problem of the corporation as client is revisited and possible solutions suggested. Illustrating the usefulness of keeping the dichotomies in view, Part IV applies them to several exemplary situations of ethical difficulty in actual lawyer practice. For readers finding it difficult to envision the consequences of these distinctions, turning ahead to Part IV may be useful in making the discussion more concrete. Some commonalities across the dichotomies and connections among them are then developed in the concluding section, Part V.

Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client)

Three usually unexpressed, and too often unnoticed, conceptual dichotomies underlie our perception and understanding of lawyers’ ethics. First, the existence of a special body of professional ethics and professional regulation presupposes some special need or risk. Criminal and civil law are apparently insufficient. Ordinary day-to-day morality and ordinary ethics, likewise, are not considered to be enough. What is the risk entailed by the notion of a profession that is special; who needs protection, and from what? Two quite different possible answers to this question provide the first of the three dichotomies examined in this article: one can understand the risk as primarily to a vulnerable client from a powerful professional; or, to the contrary, from a powerful client-lawyer combination toward vulnerable others. Second, what is the foundational orientation of lawyers? Are lawyers serving primarily their particular clients, and those clients’ preferences, choices and autonomy? Or is the primary allegiance of lawyers to some community or collective goal or interest distinct from the particular goals or interests of the client? The third dichotomy concerns not the substance of therisk, or the primary orientation, but the appropriate means of responding to that risk or that fundamental obligation. Should professional ethics be implemented primarily through rules? Or, should we rely on character and the discretion of lawyers to make a thought out, all things considered, decision? Each of these three presents a fundamental difference in how we perceive and address issues of lawyers’ ethics. Each affects our understanding and analysis on multiple levels, from (1) determining the appropriate or requisite conduct in aparticular situation, to (2) framing a specific rule or approach for a particular category of situations, to (3) more general or abstract theory or policy. A person’s inclinations in regard to the dichotomies affects the conclusions that person will reach on each of those levels of analysis, yet those inclinations and assumptions are frequently unexamined and unarticulated. One’s position on each of the dichotomies tends to structure the approach and outcome without the issues and choice having been explicitly addressed or possibly even noticed. This article is an effort to ameliorate that problem. Part I addresses the question of what is the risk in the work of lawyers, or the function of lawyers, for which professional ethics is the answer. The concluding section focuses on the particular problem of the corporation as client. Part II then asks the related and possibly consequent question of what is the foundational orientation or allegiance of the lawyer? Is it to the individual client? Or is it to some larger community interest? Again, the concluding section focuses on thecorporation. Part III turns to the means or method for addressing the obligations and possible problems of the professional ethics of lawyers. Should lawyers’ ethics guide and confine the conduct of lawyers primarily through rules? Or should it function primarily through reliance on the knowledge, judgment and character of lawyers? If the latter were the guide, ethical decisions would be made on a situation by situation basis under the discretion of each lawyer. Toward the end of each discussion possibilities for bridging the dichotomy are considered (and with such bridges each dichotomy may come to look more like a spectrum or continuum.). At several points after its introduction in Parts I and II, the special problem of the corporation as client is revisited and possible solutions suggested. Illustrating the usefulness of keeping the dichotomies in view, Part IV applies them to several exemplary situations of ethical difficulty in actual lawyer practice. For readers finding it difficult to envision the consequences of these distinctions, turning ahead to Part IV may be useful in making the discussion more concrete. Some commonalities across the dichotomies and connections among them are then developed in the concluding section, Part V.

Gendered dichotomies and segregation patterns in computing jobs in Australia

The uneven distribution of women and men in IT employment is often depicted as reflecting adistinction between 'hard' and 'soft' tasks, skills and attributes. This article uses detailed occupational data on professional computing jobs in Australia to examine the extent to which patterns of gender segregation are consistent with such dichotomies. Additionally, we draw on qualitative interview data from aset oforganisational case studies for insights into the ways in which segregation patterns are reproduced and/or reshaped at"the workplace level. While perceptions ofgendered dichotomies were evident among many of our interviewees, overall our analysis shows considerably more complexity, with segregation patterns not necessarily aligned with clear-cut dichotomies and career directions often directly influenced by the organisation ofworking time in particular occupational streams.

Gendered dichotomies and segregation patterns in computing jobs in Australia

Sex segregation in employment is a phenomenon that can be observed and analysed at different levels, ranging from comparisons between broad classifications by industry or occupation through to finely defined jobs within such classifications. From an aggregate perspective, the contribution of information technology (IT) employment to sex segregation is clear--it remains a highly male-dominated field apparently imbued with the ongoing masculinity of science and technology. While this situation is clearly contrary to hopes of a new industry freed from traditional distinctions between 'men's' and 'women's' work, it comes as little surprise to most feminist and labour studies analysts. An extensive literature documents the persistently masculine culture of IT employment and education (see, among many, Margolis and Fisher 2002; Wajcman 1991; Webster 1996; Wright 1996, 1997), and the idea that new occupations might escape sexism by sidestepping 'old traditions' has been effectively critiqued by writers such as Adam, who notes the fallacy of assuming a spontaneous emergence of equality in new settings (2005: 140).

How does ‘Newstainment’ actually work? : ethnographic research methods and contemporary popular news

Much debate has taken place recently over the potential for entertainment genres and unorthodox forms of news to provide legitimate – indeed democratized – in-roads into the public sphere. Amidst these discussions, however, little thought has been paid to the audiences for programs of this sort, and (even when viewers are considered) the research can too easily treat audiences in homogenous terms and therefore replicate the very dichotomies these television shows directly challenge. This paper is a critical reflection on an audience study into the Australian morning “newstainment” program Sunrise. After examining the show and exploring how it is ‘used’ as a news source, this paper will promote the use of ethnographic study to better conceptualize how citizens integrate and connect the increasingly fragmented and multifarious forms of postmodern political communication available in their everyday lives.

Memoirs of a trainer : The search for a balance between quality and best practice

The field of research training (for students and supervisors) is becoming more heavily regulated by the Federal Government. At the same time, quality improvement imperatives are requiring staff across the University to have better access to information and knowledge about a wider range of activities each year. Within the Creative Industries Faculty at the Queensland University of Technology (QUT), the training provided to academic and research staff is organised differently and individually. This session will involve discussion of the dichotomies found in this differentiated approach to staff training, and begin a search for best practice through interaction and input from the audience.

In Bed with Autobiography: Unravelling the Fabric of Gender and Genre in Women’s Bed(room) Confessions

This thesis consists of a confessional narrative, What My Mother Doesn’t Know, and an accompanying exegesis, And Why I Should (Maybe) Tell Her. The creative piece employs the confessional mode as a subversive device in three separate narratives, each of which situates the bed as a site of resistance. The exegesis investigates how this self-disclosure in a domestic space flouts the governing rules of self-representation, specifically: telling the truth, respecting privacy and displaying normalcy. The female confession, I argue, creates an alternative space in women’s autobiography where notions of truth-telling can be undermined, the political dimensions of personal experience can be uncovered and the discourse of normality can be negotiated. In particular, women’s confessions told in, on or about the bed, dismantle the genre’s illusion of self and confirm the representative aspects of women’s experience. Framed within these parameters of power and powerlessness, the exegesis includes textual analyses of Charlotte Perkins Gilman’s The Yellow Wallpaper (1892), Tracey Emin’s My Bed (1999) and Lauren Slater’s Lying (2000), each of which exposes in a bedroom space, the author’s most obscure, intimate and traumatic experiences. Situated firmly within and against the genre’s traditional masculine domain, the exegesis also includes mediations on the creative work that validate the bed as my fabric for confession.

User-created content and everyday cultural practice : lessons from YouTube

This chapter sets out the debates about the changing role of audiences in relation to user-created content as they appear in New Media and Cultural Studies. The discussion moves beyond the simple dichotomies between active producers and passive audiences, and draws on empirical evidence, in order to examine those practices that are most ordinary and widespread. Building on the knowledge of television’s role in facilitating public life, and the everyday, affective practices through which it is experienced and used, I focus on the way in which YouTube operates as a site of community, creativity and cultural citizenship; and as an archive of popular cultural memory.

Making use of theories about literacy and justice: teachers re-searching practice

This article considers teachers’ work as they grapple with theories in practice in the everyday worlds of their classroom. It argues that Bourdieu’s theory of practice and the concept of habitus may be useful in moving past theory/practice dichotomies. After establishing the historical context for teacher research in South Australia, the work of two school-based literacy educators with an overt social justice standpoint is explored. The complexity of teachers’ intellectual work and identity formation over time is outlined and implications for teacher education are discussed.

Review of "Violence, Prejudice and Sexuality" by Stephen Tomsen (Routledge, New York and London, 2009)

Tomsen’s book Violence, Prejudice and Sexuality engages with important questions about sexuality and anti homosexual sentiment that criminologists have grappled with for some time. Tomsen’s work refines these questions in the context of essentialism, and notes how this concept has enabled only very specific ways of thinking about and analysing violence, prejudice, and sexuality. Indeed, thinking about the nexus between these three concepts are now almost taken for granted. As Tomsen demonstrates in his discussion of historical understandings of sexual desire, although social constructionism and queer perspectives have challenged essentialist notions of sexuality, research has in many respects upheld a binary understanding of heterosexuality as normal and homosexuality as abnormal. Interestingly, essentialist binaries like this have been conveniently employed in more recent times when activists align with minority status to gain basic human rights. While no one could deny the importance of access to rights and justice, Tomsen notes the danger inherent in arguments like this that draw on essentialism. He argues we are working through similar dichotomies of heterosexuality as normal and homosexuality as abnormal set up in very early research on sexual desire. The key difference now is that, in the rush towards public and political citizenship, ‘heterosexuals are recast as “perpetrators” and homosexuals as “victims”’ (Tomsen 2009: 16). Violence, Prejudice and Sexuality importantly notes this is no less an essentialist dichotomy and no less divisive....

From movie screens to moving screens : mapping qualities of new urban interactions

Next generation screens of diverse dimensions such as the Pebble e-paper watch, Google’s Project Glass, Microsoft’s Kinect and IllumiRoom, and large-scale multi-touch screen surface areas, increasingly saturate and diversify the urban mediascape. This paper seeks to contribute to media architecture and interaction design theory by starting to critically examine how these different screen formats are creating a ubiquitous screen mediascape across the city. We introduce next generation personal, domestic, and public screens. The paper critically challenges conventional dichotomies such as local / global, online / offline, private / public, large / small, mobile / static, that have been created in the past to describe some of the qualities and characteristics of interfaces and their usage. More and more scholars recognise that the black and white nature of these dichotomies does not adequately represent the fluid and agile capabilities of many new screen interfaces. With this paper, we hope to illustrate the more nuanced ‘trans-scalar’ qualities of these new urban interactions, that is, ways in which they provide a range functionality, without being locked into either end of a scale.

Pursuing better childhoods and futures through curriculum : utopian visions in the development of Australia’s early years learning framework

In recent years, globalised curriculum discourses have given rise to local curriculum texts that convey and produce particularised imaginings and narratives, as well as hopes for, and expectations of, young children, their childhoods and their futures. In this article, the authors employ concepts from utopian studies and Deleuzeguattarian concepts of assemblage, rhizomes and lines (supple, rigid and lines of flight) to undertake a preliminary and partial rhizomatic mapping of utopian visions of better childhoods and futures evident in the development of the Early Years Learning Framework, Australia’s first national curriculum for early childhood settings. Drawing on the perspective of policy makers, News Corporation, the public, politicians, academics and practitioners who shaped the development of the Framework, the authors seek alternatives to the well-rehearsed dichotomies that so often characterise and confine curriculum politics and debates, and ways of exploring spaces between the possible and not (yet) possible.