Critical evaluation on the standard model of professional legal ethics (neutral -partisanship ) - Essay Example

?Critical evaluation on the standard model of professional legal ethics (neutral -partisanship Introduction Professional legal ethics otherwise know as neutral partisanship is a theory where the lawyers are obligated to work for their client in the limits of legal boundaries. According to this theory, the lawyers need to keep high standards of morality in their profession and this at times goes against the interest of their clients. According to Atkinson (1993)“The concept of lawyering are two correlated principles, partisanship and neutrality. The first of these, partisanship, is the more obvious:' the lawyer is to use all legal means, and the maximum of personal energy and zeal, to advance any client end, subject only to the constraint of the outer limits of the letter of the law. The second, less obvious, principle is neutrality toward the morality of clients' purposes”. Lawyers are the law protecting agents of the society; hence they have the superior obligation to work for the fulfillment of the justice and preservation of the law. The model of professional legal ethics aspire the legal professionals in setting a foundation which is strong in terms of moral and ethics. However, the lawyers have the obligation to heed to his conscience when considering a legal fight. A lawyer should not only focus on the freedom of his clients but consider whether the client is ethically right or wrong. Finally, the legal professional ethics aims at serving the interest of the clients but this should not be achieved by going against the moral and ethical standards of the law. Analysis of few cases in relation to professional ethical standards In this section certain cases are being assessed in terms of the professional ethical standards. This is done to consider the implication of ethics and morals by the legal profession in defending their clients. These case studies focus on the problems and dilemmas faced by the lawyers when acting in favor of their clients .A lawyer is a professional with high moral obligation towards his clients as well as the society. Even thought the neutral partisanship allows a lawyer in acting in favor of his clients, it also ask him to act according to the law - abiding rules and principles. He should not reject the moral and ethical values and only look in to the protection of his client. In order to find the complication faced by lawyers, we can study few cases which demand the ethical and moral obligation from the lawyers. Surat & Scheingold(1998) claims that “The role of lawyers and the scope for legal activity is, for example, considerably broader in the American than in the British common law system. Similarly, in times of crisis, liberal regimes may undertake repressive measures that undermine the rule of law and drive cause lawyers into defensive postures”. Case 1 : Acting for the Pride of Britain Organisation Harold Truman a multi – billionaire is the man who represent the Pride of Britain Organization, which is a political party with specific interest to support British nationals. This political party, PBO which is funded by Truman has taken anti – immigrant stands to protect the job opportunity of British nationals by hindering the prosperity of migrants. The Truman has contacted the Monkmans solicitors for working on behalf of PBO and initializing the anti – immigrant policies. However, the Monksmans solicitors being a representative for refugees, asylum seekers and economic migrants presented strong objections to the interests of Truman and PBO. Trumen being the client of Monksman solicitors, has the right to get sufficient favors from the latter .However, considering their professional ethics and morals principles, the Monksmans Solicitors decided to abide by their mission of protecting the rights and privileges of local immigrants and refugees . They denied working against their true professional motives, to not to jeopardize their reputation as a protector of immigrants .The case conveys the message that being a lawyer is not only about serving the client but adhering to the core principles and serving the society in a positive way. Case 2 –Two sides of Criminal Justice In this case, the allegation is that the defendant abused a female student in the night club by hitting her on the face and causing injuries to her .In this case, the lawyer is trying hard to bring out the truth from the defendant and analyze the situation better to assure justice to the client. However, the client is reluctant to share the truth and tries to hide things which make things difficult for the lawyer. Fortunately, after further confrontation the client accept that he has assaulted the girl and tries further to disgrace the girl, as a one with bad reputation. Moreover, the client manages to convince the lawyer that he holds a good reputation among friends circle and lawyer blindly believed him and proved him innocent. Once after the release, the client sarcastically bade good -bye to lawyer, which made the lawyer realize that he was used by the client. However, Tina Appleby the offender was adamant on taking the defendant to prison but due to the absence of criminal records the defendant was released by District Judge. Here the real issue was that the District judge had made a verdict even before going through a trial .In this case we can observe that, in an attempt to serve the criminal a real injustice has happened to the girl who was abused. Lawyers should make sure that they do not go completely against ethics when fighting for the client’s interest, which can mean a total destruction of law structure. Case 3: Divorce and Family Proceedings – Berger v. Berger In this case of Berger v/s Berger the client has raised concerns to lawyer Adam regarding the proceeding of his divorce settlement. He has questioned the lawyer for misquoting the alimony amount and creating complication and discomfort for him. Here, the client has settled a rate with lawyer but the lawyer made negotiations with the offending party at his own terms. In this case the lawyers was playing games without the real consent of the client and was quoting alimony amounts without the real notice to the client which is unprofessional. As per Hotel (1997)“.By comparison, the morality of care governs a mountain – climbing expedition whose members are connected by a web or rope. They are interdependent and committed to the responsibility of safe guarding each other”. In this case it has been very unprofessional for the lawyer to misquote the client and speak unsaid things to the other party. The lawyer here has not given importance to the real requirement and demand of the client and his working at his own negotiation strategies. This is not suggestive as the lawyer is bound to keep in mind that he should act ethical and moral to safeguard the interest of his client. Issues with Neutral Partisanship It is a common thing that professional legal ethics does not have much important in other countries except America. These ethics mostly clash with the client’s interest and requirements, and it becomes very hard for the lawyers to look into both ethics and interests of clients simultaneously. Moreover, the legal professional gets very less space to work on, if they plan to adhere with all the principles and values suggested by the ethical standards. So most of the times, If the clients are to be given justice ,a lawyers has to work not considering the professional legal ethics as both frequently don’t work together. According to Carle,(2005)“The scepticism at the root of neutral partisanship in lawyering generally takes a less personal , and more radical, form. It has been traced to the Hobbesian, positivist notion that “ends are natural, individual, subjective, and arbitrary”. Conclusions Nowadays it is a widely accepted practice to engage in legal activity without following the principles of neutral partisanship. A lawyer generally serves different clients and handles various cases with strange nature and they need to closely analyse every case to show justice to both client and professional ethical standards. But at times it can be seen that following the ethical standards, the client gets dejected and get less than what they deserve. Mostly, the lawyers are caught in between ethics and interests of clients and it is difficult for them to follow the guidelines of law and ethics. Nicolson(1999)suggest that “According to the critics , if lawyers are not pursuing their own interests at the expense of clients, they are pursuing their client’s interest at the expense of opponents and the general public”. However, lawyers being the guardians of law must make sure that they contribute to the welfare of the society and country. The law and ethics are structured by a country to provide complete justice to the law governers, citizens and legal professional. By this we can understand that there has been considerably less space for the lawyers to work upon their profession in the previous times. Even though the professional legal ethics suggests the legal professionals to work morally and also to serve the interests of clients, its practicability is less fruitful. Bibliography Atkinson, R. (1993). Neutral partisan lawyering and international. Fordham International Law Journal, 17(3), 531-545. Carle, S.D. (2005). Lawyers' ethics and the pursuit of social justice: a critical reader . New York: New York University Press Hotel, C. (1997). Legal ethics in the practice of family law. Journal of Business Ethics, 16, 809-816 Nicolson, D. (1999). Professional legal ethics: critical interrogations . Oxford: University Press. Sarat, A., & Scheingold, S. (1998). Cause lawyering. New York: Oxford University Press have too many problems with research. Here’s a selection: Core Texts O’Dair – pp. 144-161 (Moral Activism) and Chapter 8 (Negotiation) Boon and Levin – Chapters 18 (Negotiation), in particular pp.374-8 deals with negotiation in Family Cases Nicolson and Webb – Chapter 8 (Moral Activism) Articles A. Sarat and S. Scheingold, Cause Lawyering: Political Commitments and Professional Responsibilities OUP, 1998, Chs 1-2 (on VLE) A. Boon, “Cause Lawyers and the Alternative Ethical Paradigm: Ideology and Transgression” [2004] 7 Legal Ethics 249 D. Luban, “The Plaintiff as Person: Cause Lawyering, Human Subject Research, and the Secret Agent Problem” [2006] 119 Harvard Law Review 1510 G. Wetlaufer, “The Ethics of Lying in Negotiations’ (1990) 75 Iowa LR 1223 L. Webley, “Divorce Solicitors and Ethical Approaches – The Best Interests of the Client and/or the Best Interests of the Family” [2004] 7 Legal Ethics 231 Internet resources There are some good resources available on the internet – you may have to sift through them initially but they are easily available and highly relevant. Google Search Terms ‘Ethics and Negotiation’ ‘Cause Lawyer’ ‘Cause Lawyering’ ‘Family Law Ethics’ Professionalism and Ethics Learning Portfolio Task #4 – Models of Legal Professional Ethics Task – Write a critical evaluation of either: (a) The standard model of professional legal ethics (sometimes referred to a neutral partisanship) OR (b) Cause lawyering (sometimes referred to as moral activism) This could (not must) include a contextual analysis of the issues within one or more of the contexts you have studied in your problems (e.g. criminal litigation, negotiation or family disputes). This task relates to MLO 1 – an awareness of your own individual values and ethical priorities and the application of those values and priorities in a range of relevant practical and professional contexts MLO 3 - knowledge and understanding of different perspectives on the development, role, structure and functions of the legal profession in England and Wales MLO4 – knowledge and understanding of the principles relating to professional and ethical responsibility of lawyers in England and Wales MLO5 - the ability to use that knowledge and understanding to identify and apply the relevant principles to ethical problems of limited complexity Like other Learning Portfolio Tasks, this is just an illustration of what you might do in order to provide evidence of meeting these MLOs. Similar activities, such as marking up your notes from having read the suggested reading, might be used as well or instead of this. This task draws on the work you have been undertaking in Problems 4-6. It is intended to help you demonstrate: 1. The academic sources which you have identified and used in analysing the issues considered in those problems; and 2. Your ability to analyse and evaluate those and other sources You can approach this Task either by incorporating it into your research and other work on the problems, or by revisiting that work and adding further notes and thoughts. Like other Learning Portfolio Tasks, there is no word limit – although if you are incorporating this into your other work on the problems it will probably not be more than 1,500 words. You may find it helpful to consider this Task as more of a typical academic essay (with full referencing). However please do not feel restricted and other methods such as reflections upon your research notes would also be welcome. Read More