Importance of Autonomy and Conduct of a Lawyer - Essay Example

Importance of Autonomy al Affiliation) Meaning of Autonomy According to the oxford dictionary, autonomy is the ability toknow what is required of us morally (Carle 2006). Individuals who are fully autonomous are those who are in control of their own actions. When it comes to the law: No other right is held more important as the right of any individual to be in control of his own actions, without any interference from other parties, this can only be denied by clear authority of the law. The right to privacy is known as personal autonomy. Privacy rights have evolved to protect individuals’ freedom. This is the freedom to choose whether they could perform certain actions or go through certain experiences. Despite this, personal autonomy however has limits. In a decided case in 1986, a court upheld a law that was criminalizing same sex sodomy. It stated that not all sexual activity even though consensual could be protected from the state. The nature of this relationship was also not included in the approved list of relationships. In later years this ruling was however overturned in subsequent rulings when the view of personal privacy was expanded and previous grey areas dealing with pornography and gay freedoms were considered. Conduct of a Lawyer This essay considers the loyalty ethics between a client and their lawyer. Such a relationship usually undermines the autonomy of the clients and ultimately leads to an increase in the lawyer’s control (Nelson 1987). Lawyer client relationships usually have several aspects. One is when the lawyers take control of the interests of their clients for their own selfish need. Secondly, when the lawyers take it upon themselves to take control of the interests of their clients, this is for their client’s interest. Lastly, is when clients take control of their own interests and have a mandate over their lawyers. There should be a strong trust bond and good faith so that strong ethical standards must be maintained between the client and the lawyers. For this relationship to be successful, values such as diligence, integrity and informed clients are integral. In general, lawyers do not have the obligation to protect the rights of people who are not their clients. Legal standards and their enforcement and discipline in case of breach are left to professional organizations. Ideally, there are several types of relationships between lawyers and their clients: lawyer control, client control, cooperative control. This discussion will mainly focus on the role of defense advocates. This is because it is in this field that there is much question in regards to the proper roles of the lawyer. The lawyer will be faced with certain moral obligations due to the nature of their relationship between them and their clients. This loyalty to their clients can lead to some lawyers being considered to be engaging in wrong practices because they might protect their client’s actions even if they are wrong. Public view of lawyers The public image of lawyers is skewed, a mixture of both love and hate. Most of these who are considered to be in this category are the criminal lawyers who have been mentioned above. Not all should be included in the detested group; some are considered heroes and are looked up to by members of the society. Opinions vary based on individual perceptions. Criticism to the lawyer client relationships is valid based on the terms that are put in consideration. The lawyer as an individual already has preset attitudes and values that they have internalized. This is because the lawyer is the main operator of the law and knows how it operates. His actions may thus be deemed to be uncouth but in reality he knows more about the legal system than the clients and as such their advice should be considered and given the priority it deserves. A lawyer bases his decisions not only on the legal factors but also considers the political and legal factors that are also at play in any given scenario. A lawyer has to consider the greater moral accountability of the clients in their actions and give appropriate direction on which cause of action best to take. It should be understood that lawyer’s duties’ is to give legal advice to their clients. They advise them of the repercussions of acting contrary to the law. However, the lawyer’s rights to enforce such advice are limited. Their inherent duty is not to judge their clients actions but to defend them. Lawyers have certain contradictions in regard to their roles. They claim to be advocating for right while at the same time they are the same individuals who are often found defending criminals who are known to be guilty (Sanders & Hamilton 2001). This is seen as a skeptic to the punishment systems of a country. But lawyers also have a conscience given that they have a social role to play. The basis of where control lies between a lawyer and his client, this is what ultimately determines the lawyers responsibility for their actions. There are several models and theories that reflect the proper role of professionals in the society. The client control models and the cooperative control models have criticism for the traditional lawyer control model. In general Lawyers are not mandated to conform to any theory in regards to their relationships with their clients. This is based on a variety of factors such as personal backgrounds, experiences and the nature of the clientele they are working with. There are circumstances where the client and lawyer relationship is under the mandate of a third party, an example is when a corporate entity gives a staff member a lawyer, in this case, the lawyer will only perform as per the requirements of the corporate entity. This scenario may also arise when an individual is a member of a particular group such as a political party and it is the group that decides the defense channel to be followed by the group. Natural Corollary of Espousing Independence There is the aspect of the natural corollary of espousing independence from the client. In this case, the lawyer is in charge of all the decisions, the steps to take and when this should be done. So when a plea is taken, such as a not guilty plea, it is up to the lawyer to come up with the relevant plans that are required to argue their cases so as to increase the chance of emerging victorious. Such decisions decide if a jury will be used and which witnesses will be used at the trial (Bennett 2001). An example is in the medical field, the patient has the autonomy to decide whether to undergo a certain surgical procedure. However, once he agrees to this procedure, they do not have the mandate to outline how the surgery will be performed. This approach control is under the control of the lawyer who has the expertise and training to determine what is in the best interest of the patient. Another justification of this is that the lawyer as a third party has no emotional attachment and so will clearly valuate the client’s best interest. The lawyer must therefore have some extent of professional detachment from the client. In a decided case, Chester vs. Afshar, the damages reflected the physical harm that was actually inflicted to the patient other than metaphysical harm done. If no harm had been inflicted, a court would not allow damages done to the patient’s autonomy. Professional detachment This is a demand for some extent of neutrality on the part of the lawyer. The lawyer should not be overly committed to the cause of a particular r client. If possible, the lawyer should not act for one side in a series of particular cases. It therefore means a lawyer should not express their personal belief in the justice of a particular clients’ case (Nelson 1987). The goal of lawyers may be to help in the search for justice; this goal can only be best served by non-committed advocacy Two critical aspects of decision making usually rest with the client, the client decides in which way to plead, although this is done by maximum advice from the lawyer. Secondly, a defendant has a right to plead not guilty and then it is up to the prosecutor to prove the case. When the lawyer advises the lawyer against such a move, the client is denied this option and loses his autonomy. It is common for public prosecutors to decide which cases they think will be contested and which won’t, this can be due to several factors such as limited office resources. The client also has control over the waiver of other fundamental constitutional rights. In essence, in as much as the client has the right to decide which plea to take, it is up to the lawyer to determine whether the testimony to be presented is true and prevent presentation of false testimony (Vischer 2009). The approach to be used is also a matter of concern for example, a defender charged with murder can decide to try and establish an alibi so as to distance him from the scene of the crime or admit his involvement but put in a plea of self-defense. Such a situation arose in a decided case in the UK and Lord Donaldson stated that the decision by a client need not be rational, so long as there are no other reasons to doubt the patients’ capacity; a client is free to make any decision in line with the law as spelled out above (Moliterno 2010). Another control model, the client control model requires all major decisions to be made by the clients personally. The lawyer should follow these wishes as long as they are within the law and are ethical. Unethical issues arise and there is a debate to which extent that a lawyer can assist clients who are acting illegally. The lawyer should not address the interests of the client based on the confines of the particular case. In a case involving personal injury, the courts can only offer compensation in terms of monetary sums. In this case, the lawyer ignores other avenues of compensation such as rehabilitation . When there is limited demand for the lawyer to obey instructions of the client, there is a greater possibility that the lawyer will place wider interests before the individual interests of the client. In a decided case in England, the courts held that the defendants must be allowed to make the major decision of whether to look for assistance of legal counsel or not. The judge stated that the defendant will personally bear the consequences of his actions and not their lawyers or the state. The client has therefore to decide whether the use of the counsel will be to his advantage. However, whichever course of action he decides, even if he decides to represent himself then the court must honor his wishes (Sarat & Scheingold 2005). Some elements of the judicial system call for use of special expertise and skills, this might tend to distort the defendants view, it is up to the lawyer to explain the unfamiliar systems to the client. At times, lawyers do not have the best interests of the clients as their priority and can defend their actions based on technicalities and stringent procedures. The cooperative model: This requires that the lawyer and their clients will strive to reach to share their views and reach a full level of understanding. The advantage to this is that it provides autonomy to both the parties involved. Given these facts, there are various ways that a lawyer can act in his pursuit to try and protect third party interests in such a scenario as outlined. The lawyer can engage the client by providing a list of the legal repercussions of such an action. The law aims to protect the welfare of all citizens including those who are not represented well. In such, the courts will consider the resources that were available at the disposal of such an individual should their rights be breached. If it is proven that it was done unfairly, it might impact negatively on the client and he will be asked to pay damages with the possibility of having to incur the legal costs relating to the suit. A lawyer should be partisan to the client. This means that while operating within the confines of the law and maintain professional conduct, the lawyer must always maximize the likelihood that the clients’ objectives will be best attained (Sellers 2007). When the client has overall control over his affairs and the lawyer takes a back seat, there is the reduction of a sense of responsibility in the moral sense than when that responsibility is divided between the lawyer and the client. When the client has control over his affairs, this is because of the diminished presence of professional codes of conduct. Action taken will be dependent on the personal judgments of the clients. There is a need by clients to restore part of personal dignity through self-management and this led to calls for commitment and cooperation between the clients and the lawyers. As such, both of these parties would be involved in finding suitable ways to deal with third party situations. If these situations are not treated with the caution that they require, it might lead to the parties blaming each other in case of any individuality. It has been suggested that the real reason that lawyers need to make the final decision is for personal reasons: professional pride. The client must therefore evaluate the given circumstances before deciding on an appropriate course of action to take. Lawyers may also have a sense of hypocrisy whereby there is a reluctance to equate power with decision making. They may require the clients to make the final decisions but still have power of the overall processes. A lawyer should not be totally immune from liability that may arise from being incompetent as this gives them a false sense of security (Rhode 2003). However, use and overly consideration of opinions of the client has been criticized in certain areas. One of these factors is the organized bar. This states that: it would be difficult to imagine anything that could more gravely demean the advocate or undermine the integrity of our system of justice than the basic idea that the defense lawyer should be simply a conduit for his clients desires. This is commonly referred to as: the alter ego theory. The cooperative model is faced with much more hostile criticism, this is because it attempts a real distribution of power-this is when it is used and as a result complications (Nelson 1987). This theory is also inconsistent with the basic myths of the lawyering political neutrality. However, even though the legal profession association’s campaigns for professional detachment, there are several members of the same profession who happily sit on the boards of directors of various clients companies and interacts unprofessionally with individual clients and corporate (Bennett 2001). This is far less likely to occur at the other end of the social scale and is so can lead to disciplinary proceedings when it occurs and comes to the attention of the bar. Despite the disapprovals of this professional establishment, the poverty lawyers in the last few years frequently began adoption of a cooperative model. The involvement and commitment which this required has nonetheless contributed to what is referred to as the "burn-out" phenomenon. This coupled with the high turnover of legal professionals therefore provides evidence that the use of the co- operative model is most likely to survive only where there exists a strong commonality of goals between lawyers and clients. The Duty to Accept clients Grounds for Declining Work: Independence from control of clients control entails the power to refuse to act for a client. Even, and perhaps especially, those who espouse the client-control model demand that attorneys exercise discretion and select their clients. This is ironical because it denies client control at the very stage when, from the clients point of view, it may be vital. If the lawyer refuses to accept the client there are no further decisions for the client to make. There is a further irony here in that the attempt to preserve a degree of personal discretion in the hands of the attorney gives substance to the argument that the lawyer is morally accountable for his or her actions in a professional capacity (Vischer 2009). Before examining the attitudes which could be held on this topic consistently with each of the models outlined above, it is helpful to isolate the criteria which might be relevant or a lawyer in deciding whether or not to accept work. There are two general considerations which, although they do not logically entail a duty on individual attorneys to accept whatever work is offered, do at least place the burden on the lawyer to justify refusal to act. First, there is the monopoly vested in licensed attorneys with respect to the provision of some legal services (Carle, 2005). With respect to court advocacy, the limitations on lay representation usually system not so much from the statutory unauthorized practice provisions as from the courts control of their own proceedings. Nevertheless, in most jurisdictions courts will only permit lay representation in extraordinary circumstances, and in practice almost never in serious criminal trials. In practice, therefore, licensed attorneys hold an exclusive right to appear in the courts on behalf of litigants. Secondly, defendants in criminal cases have a right to the assistance of counsel, which has been specifically held to mean that constitutional provision has been held not to require that defendants have counsel of their own choice, but it does mean they are entitled to some competent counsel (Macfarlane 2008). That provision of the Constitution has been understood by the profession to impose a corporate duty on lawyers as a body to see that no defendant goes without assistance and implies that courts and bar associations will arrange representation when all else fails (Tanase & Wolffe, 2010). However, the ABA Code goes further and states quite explicitly that there is no duty on individual lawyers to accept work, except at the request of a bar association or upon court order. The Code states that "a lawyer is under no obligation to act as adviser or advocate for every person who may wish to become his client; criminal defense work is not deemed to warrant separate treatment. After a rather confusing and incomplete survey of the considerations relevant to the "acceptance and retention of employment," the Code, until 1975, expressed concern that some group legal service plans (these are designed to assist clients to find a lawyer) may deny such potential clients "free choice in the selection of an attorney."(Sanders & Hamilton 2010) What is not recognized is the fact that the right to decline to act is a direct restriction on the aspiring clients freedom of choice. If there is to be any restriction on the attorneys right to reject work, it will be necessary to identify and evaluate the relevant criteria in relation to specific cases. 1. Time. This is very relevant. A lawyer cannot handle two cases or represent two clients or represent two clients at the same time. Commitment can be used as a reason to refuse additional work assignments. However, these factors can be contained by seeking for postponements or hiring help. An example is a leading criminal advocate under- .takes a fairly routine case for a particular day and is later asked to defend a difficult murder charge on the same date (Carle, 2005). Assuming that neither case can be re-scheduled, it is arguable that the lawyer should take the murder case on the basis that it will be easier for the client with the routine case to find acceptable alternatives. . 2. Money. Even though lawyers are thought to be affluent, it would not be politically acceptable to require them to accept clients regardless of whether the client could pay for the services or not ( Nelson, 1987). Since the majority of criminal defendants are poor and would usually seek lawyers who specialize in criminal work, such an obligation would soon bankrupt the criminal defense bar. It might be possible to achieve a compromise which would help some clients obtain lawyers of their choice, while spreading the load within the profession, by requiring that all trial attorneys do a certain volume of free work each year. This suggestion, sometimes called "mandatory pro bono," has been made before, but it has hardly swept through the profession with enthusiastic acceptance. "The basic responsibility for pro- viding legal services for those unable to pay ultimately rests upon individual lawyers, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer (Carle 2005). Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. This Florence Nightingale approach, unsupported by any substantive duty or mechanism for sharing the burden, failed long ago. A partial answer is now to be found in the institution of the public defender, where, incidentally, neither lawyer nor client has any freedom of choice. The totally impecunious client provides an extreme example from the much larger class of clients who would be unable to pay a full lawyers fee. Should a lawyer be able to refuse a client who can make some payment, though not a normal fee? It would be possible for a public body to set a specific level of remuneration, below which an attorney would not be entitled to refuse a client for money reasons (Bennett 2001). 3. Competence. Lack of competence in the relevant area entails a duty not to accept employment." While this rule provides a unique professional recognition of the fraudulent nature of the licensing process, it is really a consideration of peripheral relevance best he could (Sanders & Hamilton, 2001). The client did insist, and the lawyer took the case. The English rule is often traced back to the rhetorical words of Erskine in justifying his defense of the unpopular Tom Paine near the end of the eighteenth century: "From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end.” The rule, which is now generalized further beyond criminal jurisdiction, is commonly referred to as the "cab-rank" principle. This indicates that barristers, just like cab drivers, usually act on a first come, first served basis in the process of accepting work (Vischers 2009). This is seen a necessary condition for the advantage of being licensed so as to provide the service to the public. This analogy has however been criticized: this is because while cab drivers are licensed and have a duty to ensure that adequate service is provided to cab clients at a proper charge, lawyers, on the other hand are licensed for an entirely different purpose: That of ensuring competence, this is by ensuring that the service which is provided is of acceptable standards (Rhode 2003). Additionally, lawyers, unlike cab drivers, need to establish a form of trust relationship with their clients and thus, even though it may be appropriate to require cab drivers to accept all possible customers, the same reasoning cannot apply to lawyers. This response is inadequate as it ignores the fact that the primary beneficiary of such a relationship, the client, is the one with the freedom to choose. If lawyers are to be given the freedom to refuse work there is the possibility that low class clients and cheap work will lack access to top level lawyers. Furthermore, it seems unfair to insist on freedom of choice for private lawyers when the same is not applicable to public defenders. Even in the case in regards to attorneys in private practice, the ability to refuse is no doubt more real those with many clients than those who are not so successful. A duty to act allows lawyers to conform to demands for accountability for their clients: on the other hand lawyers who decide to refuse clients cannot avoid consequences for their choices. Conclusion Lawyers have a certain extent to which they organize control over their clients. In as much as the clients have an inherent autonomy over their actions, there exist a relationship between them and their lawyers that gives the lawyers the mandate to advise them accordingly in regards to their actions that may affect third parties. They have an advisory role and should ensure their clients do the right thing. References Carle, S. D. (2005). Lawyers ethics and the pursuit of social justice: A critical reader. New York [u.a.: New York University Press. Sanders, J., & Hamilton, V. L. (2001). Handbook of justice research in law. New York: Kluwer Academic/Plenum Publishers. Macfarlane, Julie. (2008). New Lawyer (The): How Settlement Is Transforming The Practice Of Law. UBC Press. Tanase, T., Nottage, L., & Wolff, L. (2010). Community and the law: A critical reassessment of American liberalism and Japanese modernity. Cheltenham, UK: Edward Elgar. Bennett, W. (2001). The lawyers myth: Reviving ideals in the legal profession. Chicago: University of Chicago Press. Nelson, R. L. (1987). Partners with power: The social transformation of the large law firm. Berkeley: University of California Press. Rhode, D. L. (2003). Ethics in practice: Lawyers roles, responsibilities, and regulation. Oxford [u.a.: Oxford Univ. Press. Sellers, M. N. S., & University of Baltimore. (2007). Autonomy in the law. Dordrecht, the Netherlands: Springer. Vischer, R. K. (2009). Conscience and the common good: Reclaiming the space between person and state. Cambridge: Cambridge University Press. Moliterno, J. E. (2010). Professional responsibility. New York, NY: Aspen Publishers. Sarat, A., & Scheingold, S. A. (2005). The worlds cause lawyers make: Structure and agency in legal practice. Stanford, Calif: Stanford Law and Politics. Read More