Ethics in Professional Practice - Assignment Example

 Ethics in Professional Practice Ans 1: In instances where professional practice is involved, there is a higher standard of care that is expected, due to the expertise of the professional in the relevant subject. A similar standard exists for lawyers who are expected to satisfy the test of “the standard of the ordinary skilled man exercising and professing to have that special skill.”1 In the case of Griffiths v Evans, the extent of responsibility of the lawyer was limited, as articulated by Romer LJ, where liability was imputed to the lawyer for failing to provide advice on an area of law the client did not consult him about2. As articulated in the case of Duchess of Argyll v Beuselinck, “the duty of care is not a warranty of perfection.” But in a subsequent case3 a similar failure to fully inform the client was construed as a negligent omission on the part of the lawyer in the performance of his professional duty4. A higher standard of duty of care arises in the case of a professional provider of services, upon whom a duty of care will be imputed because it is likely that the professional’s advice will be “trusted” and his “judgment” will be “relied upon” by the person in question5. There is an issue here of trust that a lay person would repose upon a professional provider of services, since they will be assumed to possess the specialized knowledge that will make their advice valuable.6 Therefore a lawyer is expected to act with competence and diligence while serving a client. The case of Togstad v Vesly established that a lawyer can also be held responsible for promissory estoppel while rendering unpaid advice. He must also exercise a reasonable and compete degree of care and skill6a. Liability is imputed where the nature of an error made by a lawyer is such that “no reasonably well informed and competent member of that profession could have made.”6b In some cases, a lack of professional responsibility has also been deemed to be deliberate failure and willful neglect.7 Therefore, the general rule that has been emerging is that lawyers cannot limit their liability by lowering the standard of care8. In the case of Heydon v NMRA, both the Courts have held practitioners to a higher standard of performance and duty of care. The scope of the duty of care has extended to warning clients of potential risks accruing from the ramifications of various actions. For example, in the case of Austrust Ltd v Astley, despite the fact that the solicitor had served the client capably in previous instances, he was held to have breached his general retainer for failing to warn the client of a potential personal liability accruing from trust debts. In effect, such decisions equate to the expectation of a standard of performance from a lawyer/solicitor that is to be near perfect. This may also be seen in the above case9 where no contributory negligence was ascribed to the Plaintiff’s own counsel and the solicitor’s plea on the contributory issue was rejected on the grounds that the breach of duty of care by the solicitor involved a breach of contract. In the case of Duchess of Argyll v Beuselinck while the Court stated that the duty of care is not a warranty of perfection, nevertheless it also clarified that a higher duty of care may be owed due to the reliance placed by the client on the skills of the lawyer. Thus the Court will also impute liability for negligence, omission and misstatements,10 all of which places a much higher standard of duty of care upon a lawyer that amounts to a requirement for near perfection. 2. Lawyers have an important duty to their clients and the doctrine of professional privilege is an important aspect of the judicial system that must be enforced in order to protect the public interest. As stated by Davies and Lee JJ, “Full and effective representation to clients is an ethical rule of long standing, which goes to the core of the solicitor-client relationship.”11 It is aimed at “promoting peaceful settlement of disputes out of court”12 in order to ensure that people are provided the opportunity to avail of competent lawyer services, with the facility for open communications. As a result, the lawyer has a duty to his/her client, to ensure that the interests of the client are protected and that he/she represents the client to the best of his/her ability to ensure that the client’s best interests are served. But in the case of Giannarelli v Wraith, Mason J clearly stated that the advocate is also a part of the justice system and an officer of the Court13 in the same way as courts and judges and therefore has a paramount duty to the Court.14 Therefore, this paramount duty could in some instances, require the advocate/counsel to pursue those courses of action that may be disadvantageous to his client but are nevertheless necessary in the exercise of his duty to the Court. Mason J articulated this as the “special duty which the barrister owes to the court and above the duty which the barrister owes to the client.15 Therefore, while the lawyer is expected to serve the best interests of his/her client, this cannot be at the expense of the law or through the use of illegal and improper means. In the case of White Industries,16 the barristers filed an action that was purely aimed at interfering with the due process of law, through instituting a delay to stall the collection of money that was due under the contract. Therefore, Goldberg J stated that the solicitors had initiated hopeless proceedings merely to stall the course of justice, which amounted to an abuse of process17. Such tactics which bring about “useless costs to other parties” will be construed to be “negligence of a serious character” that amounts to “serious misconduct.”18 A failure to act honestly and fairly, as required from a lawyer who is an officer of the court, can result in disciplinary actions against him/her19 especially if such acts amount to knowingly misleading the Court.20 This case also clarifies that solicitors will not be protected from liability on counsel’s advice – while they are bound to heed the advice of the counsels, they cannot then pursue a course of conduct that violates their foremost duty to the Court as its officers. In the case of White, the solicitors had specifically gone against counsels’ advice and instituted proceedings as a deliberate delaying tactic, therefore such conduct was independently assessed as violative of the a lawyer’s duty to the Court, which was therefore breached in this particular case. The solicitors sought to advance the interests of their clients, despite obstructing the course of justice, hence they were liable. 3. As stated by Brennan J in the case of Giannarelli v Wraith, the purpose of court proceedings is to ensure that justice is done in accordance with the law21. Therefore, the legal system requires that justice be done to litigants by utilizing proceedings that are geared towards uncovering of the truth and doing justice through the employment of fairness and candor on the part of legal professionals. This is vital in order that the public does not mistrust lawyers and the legal system.22 Therefore, a lawyer has a professional duty to employ means that are fair and honest in seeking to utilize the instruments of law to forward the interests of his/her client and ensure that justice is done. He/she must be polite and courteous, obey the law and watch out for the interests of his/her client without abusing due processes of law. For example, in the case of Clyne v NSW Bar Association23 the appellant was found guilty of unprofessional conduct which violated the norms of common decency and fairness, since he engaged in an unfounded character attack on another solicitor. In some instances, professional misconduct has been found where there have been instances of negligence and delay on the part of lawyers24, since this is against the norms of fairness required by lawyers. As a part of such requirements of fair conduct, it would also be unethical for a lawyer to attempt to intimidate a witness or induce one to give false testimony or evidence that could obstruct justice.25 In the case of Kennedy v Council of the Incorporated Law Institute of New South Wales,26 the appellant solicitor’s appeal was dismissed because he was deemed to have interfered with the due process of calling evidence on behalf of the defendant by visiting a witness at her home and thereby rendered him unfit to discharge legal duties fairly and with candour. Employing a discourteous and rude tone to communications may also be violative of requirements of fairness and candour and Williams J of the High Court of New Zealand has observed the increasing trend for rudeness in letters exchanged between counsel.27 Personal remarks made during trials with the intention of influencing juries is also deemed improper, as observed by Shellar AJ28 and rudeness in Court is improper lawyer behavior.29 The lawyer’s goal is to seek justice, not to determine the course that justice must take by employing any means at hand to secure a conviction.30 Moreover, the requirements of candor also mean that lawyers should call all eye witnesses to provide evidence to uncover truth, irrespective of whether or not it strengthens their case.31 Furthermore, they are required to strictly to adhere to truth at all times, including not making statements that cannot be proved.32 4. The basic premise of a lawyer-client relationship is that it is one based on trust and the maintenance of the strictest confidentiality in communications between them. By virtue of the professional nature of the relationship, a duty of care is imputed upon the lawyer, with the duty to maintain the client’s confidence at all times.33 The premise behind this is that it is based upon the contractual relation between the client and his lawyer, on a retainer. It is only when the complete secrecy and confidence of communications between a lawyer and his client can be ensured, that clients will trust lawyers enough to disclose the entire truth, rather than mistrusting them. This is a very important issue, because the confidence of clients must be protected in order to secure the public interest, and in much the same manner as it applies to a doctor-patient relationship34 it is also vital in the public interest that the professional privilege35 be ensured to clients in the administration of the law and justice, through protection of the confidential information they disclose to their lawyers36. As expressed by Dawson J, such privilege applies to information which is “confidential” and where a legal advisor is acting in his/her “professional capacity.”37 Lawyers have an ethical duty to maintain the confidences of their clients38 and it would be a breach of fiduciary duty if lawyers disclose such information.39 However, the advocate also has the responsibility to exercise independent discretion rather than merely functioning as the mouthpiece of the client.40 As was laid out in the case Giannerelli v Wraith, there is also a paramount duty that a barrister has to the Court, since he/she is also a part of the justice system and is considered to be an officer of the Court. Lawyers cannot therefore mislead the Court or abuse the process of law while ensuring that their client’s interests are served. Should the preservation of the client’s interests involve activities that would abuse the due process of law, such as for example initiating infructuous proceedings or 41 through the use of unreasonable delays,42 then the lawyer may be deemed to be in violation of his/her duty to the court and to preserve the cause of justice as an officer of the Court. The difficulty that arising in balancing these two obligations of the lawyer lies in the fact that in some instances the mandate on preserving client confidentiality may interfere with the discovery of truth, which the lawyer is obliged to assist in, as an officer of the Court. In treading the delicate line between maintaining confidentiality yet ensuring that the process of the Court and justice is not abused, the lawyer may often be placed in a difficult position where he may be unable to serve the client’s interests and maintain confidentiality, including putting forth his interests, without abusing the process of law. In a similar manner, his duty to the court may involve the divulging of confidential information in the pursuit of justice, which amounts to a violation of his duty to a client since he cannot divulge such information with the express permission of the client. 5. In discharging his duties, a lawyer is expected to fully serve the interests of his/her client. However, in some instances, there may be a conflict of interest between that of the client and the lawyer’s own interest since he stands to benefit from the interaction with the client43 or alternatively between the interests of two clients, both of whom the lawyer serves.44 There are four broad areas where a conflict of interest may arise: (a) when a solicitor acts both for the plaintiffs and the defendants.45 Such an instance may arise when the parties perceive it to be in their interest to have one solicitor represent them both from the point of view of cost and convenience. However, a solicitor cannot effectively serve the interests of both, since one will conflict with the other (b) where there is a conflict between the interests of the lawyer and his client.46 In such cases, the lawyer stands to benefit from his interaction with the client47 and therefore cannot impartially serve the interests of the client. (c) where the lawyer is a potential witness who must appear to provide evidence in the case48. In such an instance, the lawyer cannot function in the capacity of both witness and lawyer without compromising interests in one or the other area (d) When a solicitor is representing his client in a case where the opposing party is a former client of the lawyer49. In all these cases, the principle of Chinese walls will be violated, wherein confidential information disclosed to the lawyer by a client could either face the risk of disclosure or the risk of being improperly or unethically used. The client-lawyer interaction is one that involves the issue of professional privilege and the trust of the public, in that information can be fully disclosed to the lawyer without fear of disclosure unless consent is accorded. In the cases cited above, an unfair advantage may be given to one party through the confidential information that the lawyer is privileged to have by virtue of his position as counsel to a client or former client. In such a case, the interests of justice and fairness will be compromised, especially in cases where a lawyer’s former client is in the opposing party. Moreover, when a lawyer stands to gain through his interaction with the client, he may sometimes sacrifice the client’s interests in order to further his own, which would not serve the cause of justice and truth. In instances where a common solicitor is preferred for reasons of time and convenience, it may prove to be detrimental to the parties, since neither of their interests can be fully and fairly served by the lawyer. Therefore in order to avoid such potential conflicts, a lawyer should step down from representation in all of the four instances mentioned above and avoid coming forward to provide legal representation. Wherever a conflict of interest arises, a lawyer must step down immediately, in order to ensure that the interests of the client are not compromised and that the legal counsel selected is able to provide fair and full representation to the client. Read More