Legal Ethics 14 (1):49-72 (2011)
|Abstract||This article considers the common social act of apologising in the context of professional discipline of lawyers in Australia. It is argued that other social contexts in which an apology occurs, and the meanings generated, inform its use within this legal context. It is from the social meaning that apologies can be used as a legitimate way to gain insights into a person's ethical state of mind in disciplinary hearings. However, there are a range of difficulties, both practical and theoretical, posed in importing a social symbol into a legal context. The article considers issues concerning the process of discipline, the dangers of the act becoming purely instrumental and interpretive difficulties. Finally, the nature of the entry controls applying to lawyers - the 'character test' - is itself contestable. The article argues that, despite this constraint, apologies provide a useful evidential tool to gauge a lawyer's ethical awareness without relying on assumptions about fixed personality traits. Finally, the article argues for a greater emphasis on alternative sanctioning options, such as those which require the lawyer to demonstrate his or her remorse or fulfil a promise over time. It then turns to the question of whether an (ordered) apology should be one of the available sanctions|
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