What Drives Ethical Error? Frail Lawyers and their Fearless Logics

On 21 August 2025, as part of the Current Legal Issues Seminar Series conducted jointly by the Bar Association of Queensland, the TC Beirne Law School and the Supreme Court Library, Professor Richard Moorhead, of the University of Exeter in the United Kingdom, spoke on the above topic, followed by a commentary by Richard Douglas KC.

Professor Moorhead’s abstract to his paper was this:

As Robodebt illustrates, lawyers’ ethics are important. This paper will show why it is not just bad apples or overweening clients that mean all lawyers are at risk of ethical blunders. Traditional notions of lawyers’ ethics – ideas such as fearlessness, zeal and cab rank neutrality – will be examined, as will the human frailties that all humans even – perhaps especially – lawyers face. We will consider how such ideas can drive towards disaster. Examples will be take  from the United Kingdom Post Office private prosecutions scandal, but also elsewhere. I will suggest that the traditional notions of ethics are flawed;  rather than protecting the rule of law, they render it vulnerable.

The commentary by Mr Douglas KC includes the following:

How do you best prevent legal practitioners acting unethically? You do so by ensuring that those against whom unethical behaviour is perpetrated can defend themselves by exposing that behaviour using the skills of independent lawyers, not by asserting that our extant system of legal ethics is not fit for the purpose of ensuring proper behaviour by legal practitioners. It is inevitable that some lawyers – like some doctors, engineers or other professionals – may act in an ethically improper way. The answer, and solution, to such potential misbehaviour is not even more regulation – over and above the extant proven structure of ethical prescription – but rather rigorous adherence thereto and enforcement thereof. Nor does such misbehaviour demonstrate a fundamental problem with legal practitioner ethics, but rather only the inexorable sins of a few.

The link to Professor Moorhead’s paper is here.

The link to Mr Douglas’ commentary is here.