Legal Ethics: Different Aspects of Lawyering - Essay Example

Legal Ethics: Different Aspects of Lawyering Number Department The Outline I. II. IntroductionA. Ethics of Law B. Codes III. Importance A. Justice B. Court Integrity IV. Aspects of Lawyering A. Lawyer versus Client 1. Confidences 2. Fiduciary role B. Confidentiality 1. Client information 2. Former Clients C. Conflicts of Interest 1. Adversarial Advocacy 2. Ex-client facing Litigation D. Competence and Care 1. Professionalism 2. Counsel Immunity 3. Legal Undertakings V. Conclusion Abstract Legal ethics is a complex idea that can be viewed from different perspectives. Whereas, individuals without legal background often perceive legal ethics as their only consolation in their quest for justice, most of legal experts experience difficulty adhering to legal ethics. Regardless of the contradictions, legal ethics is important in the search for justice. Capable attorneys tend to hold ethical considerations as dear, and as such they work towards building strong ethical-based legal practice in order to serve justice to their clients and improve public confidence in courts. They understand that without legal ethics, the legal profession can be prone to ethical scandals and impasses. Introduction Legal ethics is important to the quest for and delivery of justice. However, practicing legal ethics has not been easy. This is mainly because attorneys have been on the receiving end for quite a long period of time for their perceived incompetence. The problem revolves around the clients’ perception of the attorney as the embodiment of justice, and as such they must work to ensure that their client wins a case. Failure to deliver legal victory often makes the advocate and justice system vulnerable to condemnation. As a result, some of lawyers try trade-off ethics with legal victory in order to grant their clients legal victory. Various legal cases culminate in tricky dilemmas in lawyering due to conflicting loyalties that arise from them. In such situations, a lawyer is expected to respect the court processes and rules while at the same time serve the interest of his or her client(s)1. The paper explores the significance of legal ethics in relation to different aspects of lawyering. Background of the issue Lawyers and clients have different roles to play. In most cases, these obligations will contradict. Most of clients usually fail to understand the ethical considerations required of a lawyer, therefore, they tend to push them too far. Similarly, solicitors who often volunteer information that should not be divulged to their clients, engage in practices that are immoral and that undermine the canons of justice. Examples of unethical practices include making baseless utterances of crime; intentionally asking for case adjournments, perhaps to wear out an adversary in a case; or issuing baseless and or unofficial writs2. These practices call for the enforcement of codified legal ethics to order to govern the administration of justice. However, not all court systems around the world have binding codes of ethics, and for jurisdictions that have them, it is evident that not all of the stakeholders will be willing to follow them, especially at all times. In most cases, even the legal professionals who are seen to be adhering to professional ethics codes may still be surreptitiously playing some unethical cards. Importance of legal ethics Ethics in legal practice is important on several respects. Owing to the fact that attorneys play an imperative role in the interpretation of law and the delivery of justice, ethics sustains the public confidence in the courts as the most viable source of conflict resolution. Moreover, legal ethics inspires the orientation of the legal personnel to deliver more appropriate, practical and affordable legal services to the ordinary citizens. This implies that legal ethics preserves the most important rules of justice. It upholds honesty, reliability loyalty, thoroughness, and proficiency in the delivery of justice. These qualities are above self-interest and material gains. If advocates fail to conform to and advance these morals, then the courts and the entire justice system will collapse, and force aggrieved parties to resort to alternative ways to finding justice. But the other options may not be as effective3. Ethical responsibilities are applicable to various aspects of legal practice. Ethical duty can be categorized into two: those that are aimed at protecting the client during and after the conclusion of legal proceedings; and the responsibilities that an attorney should perform to uphold the integrity of the court. Notably, ethics ensures discipline is maintained in the quest for justice, and as such the values must be guarded at all cost. The most common way to crack down on unethical practices among lawyers is to punish the culprits if there is adequate proof of their misconduct. A client may also begin civil proceedings against a rogue lawyer if there is enough evidence which can sustain their case. Alternatively, an unethical lawyer may be fined and or have his or her name expunged from the roll of advocates if they are found guilty of violating professional ethics. This is normally the work of professional law bodies. The lawyer versus the client Lawyers and clients often have conflicting interests that require ethical concerns on the part of the legal professional in order to guarantee the clients justice. Competing interests often play out and impact legal ethics, for instance, where a lawyer owes a client some money or if he or she has business partnerships with the client and has failed to furnish the client with adequate information or if the lawyer has failed to organize for the client to be given impartial counsel4. Competing interests played out in the Law Society of New South Wales v Harvey [1976] 2 NSWLR 15 case. The defendant in the suit was an advocate who doubled as the chief executive and investor in three firms dealing in asset investment. During the time when the business was in operation, the defendant’s clients invested their money in these businesses after being wooed by the defendant. There was likelihood that the clients’ investments could be lost because it was an unsafe business investment. Soon the investment went awry and the investors lost lots of money. The violation of the professional ethical codes in the case was serious, considering the fact that many of the clients had been wooed to invest heavily in the project. The solicitor demonstrated the character of an insatiable individual whose deliberate disregard for his legal call showed that he was not qualified to be in the legal profession. The court established that the solicitor exercised unethical behaviour by engaging the clients improperly and failing to furnish them with important details about their investment. While ordering the revocation of the solicitor’s certificate of practice, the jury concluded that in case of any conflicting interests between the lawyer and the client, it behoves the solicitor to exercise ethical responsibility by providing the clients with full information about his or her business interest5. The process of offering full disclosure must be executed in conscientious manner. This implies that the disclosure must include all that the lawyer knows about the business dealings which might impact the client’s behaviour or his legal adviser. Meanwhile, an attorney who is keen on involving clients in business dealings is believed to BE violating his or her trust, and sinks to a level where he or she is incapable of executing his primary obligation to clients. By accepting their role as solicitors, the professionals are obligated to pay the price of remaining above reproach. This can only be achieved when they maintain the commitment to a client by guarding against any cases of prejudice. The experts should also be ready to forfeit the liberty of making gains from any business deals with individuals whom an advocate has represented in a court of law. In light of this, legal ethics preserves the clients’ rights to impartial legal service by requiring lawyers to refrain from urging clients to engage in other trivial business deals that might compromise justice or result in economic losses, especially for the client. Confidentiality Lawyers are duty-bound to maintain confidentiality of their clients, because by so doing the latter will be cushioned against prejudice or inappropriate court cases by their adversaries6. The ethical consideration is premised upon various aspects of legal practice. The doctrine can be considered as inherent in the lawyer-client contract. Alternatively, the principle may come up in equity or can be captured in tort as one of the obligations that the lawyer must fulfil in his or her relationship with the client. In addition to these provisions captured in law, the significance of cultivating confidence between an advocate and a client bestows upon the former, an ethical duty to safeguard the confidentiality of the client, failure to which the advocate should be subjected to punitive measures. There are isolated cases where confidentiality may be breached. For instance, when the client formally agrees to a disclosure of some information; or when the attorney is required by law to make certain disclosures; or where it is in the public interest that certain disclosures are necessary. However, what makes up public interest in the revelation of confidential legal information is still shrouded in uncertainty. Moreover, it remains unclear as to whether the action of an advocate who shares a client confidence with their loved ones should attract punishment either through litigation under civil law or via a disciplinary action that is implemented by professional bodies. The ethical dilemma becomes more complex, especially if harm that results from such an action is not quantifiable. If the client suffers from harm due to the breach of confidentiality, then there can be adequate ground to set the wheels of justice to roll, in order to deliver appropriate remedy for the affected party. Conflicts of interest Legal practice requires that a lawyer acts in the best interest of the party they are representing in a case. That obligation embodies two main important duties: firstly, the lawyer must make sure that he or she upholds the duty to steer clear of any contradictions in representing their client. This doctrine ensures that a lawyer refrains from securing a gain to the chagrin of the client. Secondly, a lawyer’s pursuit of two conflicting interests that brings a client into the picture requires that the latter should be kept in the know7. The failure to uphold the ethical duty results in legal and punitive measures. Most of lawyers have pointed out that conflict of interest is the most serious of the challenges they often face, because the problem takes many forms, and solving it may require a replacement of the concerned lawyer. In most cases, the balancing of two conflicting interests can prove problematic. For instance, cultivating of the confidence of the client in the lawyer representing them, including safeguarding their privacy; and striving to uphold a client’s free will regarding the choice of the right advocate who is loyal to them can be challenging. Despite the significance of resolving conflicts of interest, many grey areas still exist. For instance, the kind of conflicts, which if left unresolved could lead to a contravention of professional codes of ethics, basically remains unclear. There are several issues stemming from adversarial lawyering that may cause conflict of interest. Adversarial Advocacy Adversarial advocacy may take the form of a lawyer who attempts to represent parties that have conflicting interests, and who are technically at ‘war.’ In such a case, the solicitor puts himself or herself in a quandary, where any or both clients may lose. For instance, an advocate who gets involved in a business deal with the aim of serving the interests of both the supplier and the buyer must come to terms with the fact that they stand a little chance of success. At the centre of this situation, is the reality that the solicitor has a fiduciary responsibility to honour the trust of the clients, however this is not likely to be tenable8. Adversarial advocacy presents grave challenges to attorneys, especially those who have sensitive information about divergent clients. Even though adversarial advocacy has been witnessed in different courts, the practice is not only unethical, but impractical. The handling of adversarial clients by one law firm in which case, different attorneys are assigned the different roles does not appear to attract any case of ethical responsibility, either. Notably, a firm is one entity and as such, it cannot purport to represent separate parties with conflicting interests. Firms which claim to maintain the duty of offering representation of both parties by setting up internal measures that guide the legal process, apparently deprive both clients the right legal representation they have sought from the law firm. This includes being deprived of proper professional counsel. In such a scenario it is rational to conclude that the lawyers’ interest as trusted partners are in conflict with each other, and as such most courts have ruled in favour of representing one of the clients. In light of the conflict, most of Western countries like UK and Australia, have established binding rules, which are applicable across board. These regulations, generally hold that a legal practitioner who is willing to act for multiple clients in any court cases or business deals must, prior to their acceptance of a retainer to offer legal representation, duly inform both parties that are seeking legal assistance9. Despite the firm ethical codes that aim to root out conflicts of interest, it remains unclear as to whether such professional norms are meant to deter the advocate from providing legal assistance where both parties have given their consent. The issue that stems from the case, especially in lower jurisdictions, or in cases where legal services are not available cannot be readily wished away, however. Additionally, it is important for a lawyer to consider entering into negotiations with both parties, especially under extraordinary circumstances. Regardless of the conflict, the issue seems to attract more public interest than the conflict in itself. There is a stark reality about the probable risks that both clients might be forced to grapple with, such as the lack of legal counsel and increase the costs. Alternatively, a conflict between the ideologically diverse parties could erupt and cause a waterloo to the integrity of the law. This is because in such a scenario, there seems to be a lack of foresight and protection, which is should be the case in safeguarding the parties’ interests. Opposing an ex-client Acting against a former client is an ethical problem that solicitors face10. Most of firms have developed internal mechanisms to limit the damage that may be caused to the former client by setting up the legal barriers to the information. The process basically implies keeping the ex-client's information in a safe place away from viewing. The fundamental argument for quarantining the former client’s information is that the lawyer-client relationship remains cast in stone from their first engagement. Therefore, the information received by the lawyer must be kept confidential and safeguarded from being used to the former client’s detriment. Regardless of the likelihood that the attorney will play his or her fiduciary responsibility as required under ethics codes and individual conscience, there is evidence that representing another party whose interests are against a lawyer’s former client amounts to a violation of the provisos of the retainer, which became effective with the former’s case11. In light of the injury that the former client might suffer in the event of a breach of the retainer and or confidence, common law holds that the threshold for a rebuttal on a lawyer’s service on the premise of serving two masters at the same time must be backed up by firm evidence. Many courts have taken upon themselves the responsibility to intervene in order to protect former clients from harm unless there is adequate evidence that the firm will protect their former client(s) by adhering to the ethical codes of confidentiality. Therefore, it is ethical for law firms to seek approval from their former client (s), before accepting to act for their new client(s) whose interest(s) conflicts the former’s. This firm approach to client protection was evident in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222. In the case, Lord Millet ruled that these stringent measures are based on the fact that former clients are likely to suffer irreparable damage if confidences are used against them, especially against their consent. Despite the need to protect former clients from litigation based on their point of disadvantage, there are numerous conflicts that may arise. For instance, if the supposed disclosures of an ex-client’s information does not cause harm to him or her, it remains unclear whether the lawyer should be condemned for breaching the former client’s confidences. In contrast, a lawyer cannot tell or purport to manage the impact of breaching a former client’s confidences. This calls for the ethical need to take early precaution and safeguard the interests of the client. Meanwhile, if a disciplinary action is not punitive, but aimed at safeguarding the civilian interest then a disciplinary action that is meted out to crack down on a solicitor’s conflict of interest should only be implemented if there is adequate proof that the general community will stand affected12. Competence and Care Lawyers should show competency and care in their handling of their client’s cases. This duty helps to guide solicitors when they are confronted with several of challenging issues. When a practitioner fails to uphold competence and care in his or her work, then the affected client can begin legal proceedings against the legal expert for damages, and request the relevant professional bodies to take a disciplinary action against them. The ethical factor involves upholding professional standards of practice. Practitioners are often cautioned against carrying out legal processes unless they have attained the required skills. In light of this value, different professional bodies in various jurisdictions across the world, usually implement competency courses before new legal practitioners have been issued with the certificate of practice. Additionally, continuing legal training programmes have also proved to be an effective way to improving the skills of lawyers. The thresholds for practicing law include having fundamental legal competency for practice, and striving to update an individual’s understanding of the law in their respective areas of expertise. This implies that a solicitor worth his salt must make practical moves aimed at keeping abreast with philosophical and legal changes in his or her area of expertise. In the current environment where rapid changes are the order of the day, a solicitor must evolve with time13. A lawyer’s competency when acting for a client requires firm legal background, skill, diligence and the necessary preparation for the legal proceedings, failure to which the law would receive a thorough beating. Apart from emphasizing the need for lawyers to exercise utmost competency and care, the legal profession has been cushioned from rogue clients under the counsel immunity. Under the provision, an attorney’s negligence does not apply when the case is being deliberated upon by the court. In the United Kingdom, counsel immunity was given precedence in Rondel v Worsley [1969] 1 AC 191 case, where the court absolved the defendant from blame over negligence within the courtroom. Regardless of preserving the integrity of the lawyers, the policy fails to allow for public contribution to shaping the conduct of lawyers. Nonetheless, negligence of a lawyer in court may take many forms, and in extreme cases a disciplinary action can be taken against the individual. For example, a case whereby a lawyer deliberately fails to notify the court of a relevant authority, especially where the party is against him or her; or offering false information to the court in relation to a case. These are clear cases of unethical behaviour where the advocate acts in complete disregard for the interests of the court processes. The solicitor is not the client’s puppet, but an impartial agent of the jury. In criminal cases this fiduciary obligation includes the burden of tabling appropriate evidence and the calling of the relevant witnesses to testify. Legal Undertakings Solicitors take undertakings on behalf of their clients, and it is ethical to provide adequate information to the client(s) involved in order to avoid cases of reneging on such undertakings. These undertakings are binding and as such a solicitor will be held responsible for any services offered on the client’s behalf, if the party they represent eventually violates that undertaking. It is notable, though, that the solicitor will only evade a personal liability if the undertaking provides for such an action. An undertaking in the legal profession is taken seriously and its violation can result in corrective consequences. Solicitors are often disbarred from carrying out an undertaking against their client(s). Notably, unlike clients, the repercussions for reneging on an undertaking are more serious for attorneys. This is mainly because they owe the court a solemn duty to serve it with diligence14. Conclusion Generally, law is one of the most complex professions in society where ethical challenges and dilemmas are rife. Legal ethics stems from different aspects of lawyering like conflicts of interest, confidentiality, adversarial advocacy, legal undertakings and exercising competence and care. In adversarial advocacy, lawyers have faced ethical challenges like acting against a former client, and representing a supplier and purchaser at the same time. These conditions present ethical problems, and often prompt lawyers to abandon their call of duty and professional practice for business gains, personal interests and ambitions. However, with firm legal ethics in place, solicitors have particular roles to play. These include the duty to handle their clients with diligence; honour the integrity of the court; and realize their individual interests in a reasonable manner. Legal ethics helps to remind the lawyers of their professionalism and decorum not only within, but outside of the court precincts. Bibliography Anderson, Alexis, Kanter, Arlene, and Slane, Cindy, ‘Ethics in Externships: Confidentiality, Conflicts, and Competence Issues in the Field And In The Classroom’ (2004) 10 CLR 473. Barsky, A.E. ‘The Legal and Ethical Context for Knowing and Using the Latest Child Welfare Research,’ (2009) 88 CW 69. Dare, Tim, ‘Philosophical Legal Ethics and Personal Integrity’ (2010) 60 UTLJ 1021. 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Zacharias, Fred C., ‘Fitting Lying to the Court Into The Central Moral Tradition Of Lawyering’ (2007) 58 CWRLR 491. . Read More