Commercial Awareness and Professional Ethics - Essay Example

Commercial Awareness and Professional Ethics Introduction The of ethics is a constant feature in law. Within the lawprofession, there is a whole area dedicated to professional ethics. This begins from the law school where law students are introduced to ethical issues that are peculiar to the profession they are training for. This extends to the actual legal practice. Practising lawyers are expected to conduct themselves ethically. Different jurisdictions have different professional ethics that act as a guidebook for practising law on various matters including professional ethics. While it is undeniable that professional ethics is a constant feature in the legal profession, modern legal practice has attracted renewed attention to how professional ethics applies to the profession. For example, while discourse on professional ethics in legal practice tended to focus more on sensational cases such as lawyers knowingly keeping a secret that is life-threatening, some modern scholars are advocating for an interpretive approach that focuses on ordinary cases. According to Markovits, using sensational cases to analyze or evaluate professional ethics in the legal practice is contrary to the principle that ‘great cases make bad laws’.1 The purpose of this paper is to assess the content and role of ethics in modern legal practice. Content of and Role of Ethics in Modern Legal Practice Ethics is a broad topic. Even within the legal practice, the subject of ethics covers a wide range of issues and areas. There are volumes of books, articles, and publications on professional ethics as it applies to the legal practice. However, to understand the general content of ethics in the modern legal practice, it is important to focus narrowly on some of the most recent discourses on ethics. In this respect, the paper will focus on the Model Code developed and administered by the American Bar Association (ABA). Some of the main ethical issues contain the Model Code of client-lawyer relationship, professional integrity, and information management. It is worth noting that the Model Code has undergone various revisions to fit the modern legal practice because the original canons were specifically meant for the legal practice in the past.2 Client-Lawyer Relationship Under professional ethics for practicing lawyers, one of the fundamental principles is the need for a professional and confidential relationship between the lawyer and the client. Under this ethical principle, several issues are covered including confidentiality, fees, conflicts of interest, and professionalism. For instance, it would be considered unethical for a lawyer to engage with a client with whom there is an obvious conflict of interest. The client-lawyer relationship is important because lawyers often operate in situations where they have divided loyalties between the client and the court.3 However, lawyers are expected to apply the zealous advocacy rule. The zealous advocacy rule as set out in the traditional model cannot be effectively applied in the modern legal practice because of the hybrid adversary systems affecting client-lawyer relationships today.4 However, within the modern legal practice, the application of the zealous advocacy rule has become quite an ethical issue. Specifically, litigation lawyers tend to use this rule to engage in behaviors that border more on the professional ethical line. For example, lawyers may use the zealous advocacy rule to justify nondisclosure in court.5 In such a case, the principles of zealous advocacy, which lies within the client-lawyer relationship purview, becomes an ethical tool for lawyers to justify conduct that may otherwise be considered unethical or improper. It is worth noting that in the client-lawyer relationship, the lawyer holds the dominant position. This dominance emanates from the fact that the client is often desperate to get the lawyer’s assistance. With such relationship dynamics, Awad argues that attorneys can use this dominant position to enter into sexual relationships with their clients.6 In such a case, ethics plays a role to prevent such unethical behavior by the lawyer just because of his dominant position in the client-lawyer relationship. With certain exemptions, professional ethics prevents attorneys from digressing to issues of affairs that would compromise their professionalism. The professional ethics touching on client-lawyer relations serves roles in modern legal practice. Apart from the examples discussed above, it also addresses issues where there are real or possible conflicts of interest. Within the context of modern legal practice, the subject of conflicts of interest is quite controversial. On one hand, the lawyer has the fiduciary duty to the client while on the hand; he or she must serve the interest of justice.7 However, ethics addresses some of these controversies by identifying specific situations that would qualify as conflicts of interest and thus unethical. Professional Integrity Modern legal practice is also confronted with the profit versus ethics issue. In the legal profession, it is widely accepted that profit and ethics are discordant. Unlike in the past, modern legal practice has transformed and new structures are emerging such as multi-disciplinary practices and incorporated legal practices. These emerging structures are posing a challenge to the professional and ethical standards of the legal profession, which has triggered efforts to introduce new regulations to address the emerging ethical dilemmas.8 The new regulatory measures are meant to preserve the integrity of the legal profession. Profession integrity is a fundamental ethical principle for the modern legal practice. Every lawyer or law firm should meet the integrity threshold at all times. However, with the modern legal practice, controversies between ethics and profits have threatened the integrity of some law practitioners. A 2010 report on the level of corruption among lawyers across different parts of the world revealed that corruption is common in the modern legal practice.9 Corruption damages the integrity of the legal profession. Ethics plays a role in curbing corruption and ensuring integrity among legal practitioners. Different jurisdictions have adopted various anti-corruption laws and principles to enhance integrity in the profession. Under the ethical codes, practitioners are prohibited from engaging in any activities that may adversely affect their integrity as well as that of the profession. Those who violate these provisions are deemed to have committed a misconduct, which attracts appropriate punishment. For example, in 2009, former partner at Mayer Brown international law firm, Joseph Collins, was sentenced to seven years imprisonment after he was found guilty of engaging in fraud that led to the collapse of Refco Inc.10 Such actions taken against legal practitioners that engage in unethical activities that affect their integrity prevent proliferation of such unethical behavior. Without professional ethics prohibiting corruption and other such activities, corruption and fraud would be catastrophic in modern legal practice considering the profit-oriented society we live in. Information Management The legal profession deals with huge volumes of information and data. A legal practitioner such as judge, magistrate or lawyer relies on information to perform their duties. For example, a lawyer representing a client will handle various types of information including public and confidential. With access to such information, ethical issues may arise around the subject of privacy and confidentiality. Under the zealous advocacy rule, a lawyer should be keen to maintain client confidentiality as much as is legally reasonable. However, in sensational cases where a lawyer representing a client contains information that indicates a possible danger to lives of adversaries, an ethical dilemma arises. The ethical codes of conduct provide guidelines for dealing with such ethical dilemmas. For instance, the confidentiality principle between the lawyer and the client is exempted in some situations such as when the lawyer has enough reason to believe that doing so would prevent the client from committing crime that is likely to cause death or injury of the adversary.11 In this case, ethics play the crucial role of addressing ethical dilemmas. Moreover, legal practitioners also manage information about their legal practices. Such information include bar admission, disciplinary matters, and information about law firms. Under the professional code of conduct, legal practitioners are required to maintain ethical standards in the manner in which they handle or use such information. For instance, although lawyers may advertise their services, they are prohibited from soliciting clients. The thin line between advertisement and solicitation could provide an opportunity for engaging in unethical practices. Luckily, professional ethics provides for procedures to handle ethical dilemmas of this nature. In general, ethics ensures that information of a legal nature is handled with the highest level of ethical standards. Conclusion The legal profession is subject to various forces from within and outside. The modern legal practice is operating in society where the lure for profits poses a threat to ethical behavior. We have witnessed cases of fraud and corruption involving legal practitioners in the recent past. Luckily, ethical standards and principles contained in the professional Codes of Conduct applied in different jurisdictions provide effective measures to prevent unprofessional and unethical legal practices. Bibliography Awad, A. ‘Attorney-client sexual relations’, Journal of Legal Profession, no. 22, 1998, http://www.hg.org/article.asp?id=23762 (accessed 20 March 2015). Cialone, F, Willie, E, and Pamela, B. The ethics of lawyer-client fallout. In ABA Section of Litigation Annual Conference, Chicago, April 25, 2013, http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/sac2013/sac_2013/38_the_ethics_of_lawyer_client.authcheckdam.pdf (accessed 20 March 2015). Dzienkowski, J. ‘Ethical decision making and the design of rules of ethics.” HOFSTRA LAW REVIEW, vol. 42, no. 55, 2013, pp. 55-108. Henning, J. Punishing lawyers in corporate frauds. New York Times, Jan. 19, 2010. http://dealbook.nytimes.com/2010/01/19/punishing-lawyers-in-corporate-frauds/?_r=0 (accessed 20 March 2015). MacFarlane, P. ‘The importance of ethics and the application of ethical principles to the legal profession,’ Journal of South Pacific Law, Vol. 13, no. 1, 2009, http://www.paclii.org/journals/fJSPL/vol06/8.shtml (accessed 20 March 2015). Mark, S, Tahlia, G, Marlene Le, B, and Gary, T. “Preserving the ethics and integrity of the legal profession in an evolving market: A comparative regulatory response.” 2010. http://www.olsc.nsw.gov.au/agdbasev7wr/olsc/documents/pdf/preserving%20ethics%20integrity%20legal%20profession%20uk_paper.pdf (accessed 20 March 2015). Markovits, D., A modern legal ethics: Adversary advocacy in a democratic age. Princeton, New Jersey: Princeton University Press, 2011. Wong, G. “Survey finds corruption tainting legal profession.” Washington Post, Oct. 3, 2010. http://www.washingtonpost.com/wp-dyn/content/article/2010/10/03/AR2010100304051.html (accessed 20 March 2015). Read More