Legal Ethical Issues in A Civil Action - Coursework Example

The Writer’s Name] [The Professor’s Name] [The Course Title] [Date] Legal Ethical Issues in ‘A Civil Action’ This paper will discuss and evaluate the legal ethical issues as found in ‘A Civil Action’. The lawyer's morality, it must always be remembered, is personal. It must be stated that as such, it is improbable that any two lawyers will have exactly the same morals, and that even though procedural rules and codes of conduct may prevent a lawyer from acting in a certain way, it may be the case that the lawyer would act in the prescribed way even in their absence. However, what is of interest in this question is the mere presence of the rules, as they seek to prevent certain types of conduct, not merely discourage it. On the 1st of October, 1980, Azaria Chamberlain disappeared from her campsite at Ayers Rock. Lindy Chamberlain had been stereotyped into a "modern day witch" by the media, as a result of her curious religion and reaction to Azaria's disappearance. Her family's membership of the Seventh Day Adventist Church had been strongly emphasised by the media - most of the public considered the religion an obscure and bizarre sect who do not eat meat but pray on Sunday - the day usually reserved by ordinary Australians for watching football. The Chamberlains were shown, through innuendo, direct comment and visual picture, to be unquestionably talkative, overtly confident and almost inappropriately composed after the death of their child. Another factor contributing to the conviction of the Chamberlains was over-zealous policing. In the first coroner's inquest, Dennis Barritt criticised the police for their conduct during the investigation. Such a condemning spurred the police force to make sure they found someone to blame for the murder, regardless of their guilt. A camper at the Rock, Max Whittacker, who claimed that the detectives questioning him said that they had been instructed when they left Darwin that they were to dismiss from their minds anything to do with a dingo having taken the child, that it was a murder investigation that they were on and all their questions were to be directed along that line. The detective told him that he expected the Chamberlains to confess to the killing. This is also ratified by Parker by saying “The fact the advocacy ideal prescribes devoted service to clients’ ends, whatever they may be, is problematic where the market functions so that the rich can buy up most legal services.” (Christine, p.10) The lawyer's morality, it must always be remembered, is personal. The rules of Confidentiality and Privilege prevent lawyers from passing on information that their clients have told them. According to Australian law code of ethics, “A barrister must refuse a brief to advise if the barrister has information which is confidential to any person with different interests from those of the prospective client if: ….(b) the person entitled to the confidentiality has not consented beforehand to the barrister using the information as the barrister thinks fit in giving advice.”1 Lawyers, however, enjoy the concept of legal professional privilege, which is a rule of evidence that prevents a lawyer being a compellable witness.2 This undoubtedly can conflict with the lawyer's own morality, as seen in the circumstances of People v. Belge, where two lawyers were told by their client of the location of two further bodies.3 Lauchland, and Le Brun, states this state of affair in these words, 4 Firstly, it may encourage truthfulness between the lawyer and his client, but the lawyer putting forward what he knows to be untrue as the truth in court can offset this. Jeremy Bentham feels that privilege is in the way of justice. The absence of privilege may lead to mitigating circumstances, such as provocation, being overlooked in criminal cases, and in civil cases the lawyers could become star witnesses. The same fact has been mentioned in Australian Bar Association in these words, “A barrister must refuse to accept or retain a brief or instructions to appear before a court if: (d) the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case” 5If the client lied to the lawyer from the outset, and the lawyer was giving the evidence, the client would be at a great advantage. Despite these problems, it again highlights the problem of whether a lawyer is there to uphold justice, or merely to get the best result for his client. In the words of Christine Parker, “It is also problematic when it creates a culture in which good advocacy means a culture of excessive adversarialism that raises the costs and length of litigation making it more and more unaffordable. The advocacy ideal needs to be limited in what it motivates lawyers to do for well paying clients. This is the role of the second ideal, responsible lawyering.” 6 In their book, Lauchland, K A; Le Brun, highlight this point in these words, 7 Despite the common view that a lawyer owes a duty to the court, and to upholding justice, in reality the duties owed to his client outweigh this. As such, this duty to obtain the best result for the client can lead to conflicts between the lawyer's personal morality and his duties. As per Australian Bar Association, Barristers’ Conduct Rules, “A barrister must refuse a brief to advise if the barrister has information which is confidential to any person with different interests from those of the prospective client if: (a) the information may, as a real possibility, affect the prospective client’s interests in the matter on which advice is sought or may be detrimental to the interests of the first person.” 8Although Bentham believes that only the guilty enjoy benefits from privilege, it must be stated that lawyers can also benefit from the situation. When comparing the lawyer's position with those around him, it should be noted that privilege could put him under much more strain than people in other professions.9 Once again, the lawyer's morals can conflict with the duty to their 'client, ' and it is questionable if justice is served. 10In some cases the lawyer may be burdened with information and wish to expose it on the death of his client. So if legal privilege could be set aside in certain cases, what should these cases be? Put simply, the current position in favour of 'absolute' privilege is too strict, and that where competing interests outweigh the interest in retaining the privilege, the lawyer should be able to extinguish it. Australian Bar code of ethics narrates “there are reasonable grounds for the barrister to believe that the failure of the client to retain an instructing solicitor would, as a real possibility, seriously prejudice the barrister’s ability to advance and protect the client’s interests in accordance with the law”11 In this context, Christine is of the view, “It finds its inspiration in theories of virtue ethics and a broader literature on the ethics of care. Moral activism, by contrast, requires that mainstream consequentialist and, to a lesser extent, deontological theories of ethics and of justice in particular should be applied to legal practice.” 12Although it is still a vague concept, it would remove the heavy burden on lawyers in cases where their morality wants something that the rules deny. The lawyer could be tempted to incorporate evidence, which he gained under confidentiality. This highlights the basic need of rules of confidentiality and privilege, as discussed above, as they create a trust between lawyer and client, which should not be broken, unless competing interests outweigh the strong presumption of retention of privilege.13 Although not all lawyers would break a trust in this situation, the rule removes the threat of it, and enables the lawyer to do his best for the client. A second problem, which could occur if the rule was not present, is where a lawyer could act for two sides in the same case. Although in our system the lawyer must do his best for the client, it is arguable that lawyers are not mere technicians, and should owe a duty of intervention. The conflict of interest rule, although preventing client choice, does minimise the role of the lawyer's morality, and it should remain.14 Lawyers should be able to judge a single client in aspects of privilege, but it should not be for them to act as a judge between two parties they represent. The problems again centre on confidentiality, and doing the best for a client, but here duties to the court are just as relevant as duties to the client. 15Although lawyers have a duty to the court, in reality this is outweighed in the adversary system by the duty to do the best for a client, or in other words to get him the best possible result. In inquisitorial systems the lawyers may be able to put more emphasis on their duty to the court, and can in effect seek to put justice above their client. In the adversarial system the lawyer's morality can contribute heavily to the result of the case. 16At the end of the day, a lawyer's reputation will depend on his success, and obtaining the best result for a client may result in immoral decisions within the adversarial system, but it is decision for the individual lawyer. Australia's highest appellate tribunal, the High Court, has given guidance on the meaning of a 'fair trial' under Australian law. In one case involving trial by jury under s80 of the Constitution, Justice Deane observed that this requirement goes beyond the legal notion of fairness to embrace a wider community sense: “Equally importantly, the presence and function of a jury in a criminal trial and the well-known tendency of jurors to identify and side with a fellow-citizen who is, in their view, being denied a 'fair go' tend to ensure observance of the consideration and respect to which ordinary notions of fair play entitle an accused or a witness.”17 In another case, the High Court addressed the question whether it was fair for someone who could not afford legal representation to be tried for a serious drug importation offence without representation. The principle of fairness identified by the Court in that case is general, and may require other measures to be taken in other circumstances: “What is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values . . . And, just as what might be fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another.”18 In a recent Victorian case, for example, a trial was stopped when the judge learnt that a website called CrimeNet had posted details about the defendant's previous conviction for murder, which had been overturned on appeal.19 There was no evidence that jury members actually knew of the existence of this website -- nonetheless, the judge ruled that this created an unacceptable risk of prejudice. Thе lеgаl strаtеgіst wоrks wіth dеcіsіоn mаkеrs, fаcts, lеgаl culturеs аnd lаw. Mіsundеrstаndіng thе nаturе оf lаw hаs prоbаbly bееn thе prіncіpаl іmpеdіmеnt tо thе іntеgrаtіоn оf strаtеgy іntо lеgаl thеоry. Fоr nеаrly аny sеt оf fаcts, thе thеоry pоsіts, wrіttеn lаw spеcіfіеs thе аpprоprіаtе оutcоmе. Іn thе cоnvеntіоnаl mоdеl оf thе lеgаl prоcеss, thе lаwyеrs prеsеnt thе fаcts оf а cаsе аnd thе gоvеrnіng lаw tо thе judgе. Thе judgе аpplіеs thе lаw tо thе fаcts tо rеаch а dеcіsіоn. Whеn thе stаkеs аrе suffіcіеntly lаrgе, lаwyеrs аssumе thе rоlе оf strаtеgіsts. Bеcаusе аdjudіcаtеd оutcоmеs dеpеnd sо much оn thе prеdіspоsіtіоns оf thе аdjudіcаtоrs аnd thе strаtеgіеs еmplоyеd іn prеsеntаtіоns, thоsе оutcоmеs dіffеr wіdеly frоm judgе tо judgе, cаsе tо cаsе, аnd plаcе tо plаcе. Strаtеgy, nоt lаw, іs thе prіncіpаl dеtеrmіnаnt оf оutcоmеs. Wе аrguе, tо thе cоntrаry, thаt lеgаl strаtеgy rеndеrs lеgаl оutcоmеs unprеdіctаblе, mаkіng thе systеm lеss stаblе. Tо thе еxtеnt thаt strаtеgіеs dеtеrmіnе thе оutcоmеs оf cаsеs, thе mеrіts оf cаsеs аs trаdіtіоnаlly pеrcеіvеd dо nоt. The way the main conflict is brought out in the novel A Civil Action is pure brilliance on the author's behalf. 20The author starts out introducing a lady by the name of Anne Anderson. Anne's son, Jimmy, was diagnosed with leukemia, and as a result, Anne ends up playing one of the leading roles in the case against the chemical companies for contaminating the drinking water with TCE. Anne is the first person who questions the drinking water as being a cause of the cluster of children with leukemia. Anne is also the person who unites the parents of the children with leukemia. After an introduction to Anne Anderson and her family, the author introduces the reader to several other families, whose children are suffering from leukemia. Anne Anderson and the other parents join together and hire an attorney to fight the chemical companies so no more people are hurt by their pollution of the drinking water. Bibliography Adam Graycar Peter Grabosky: 2002: The Cambridge Handbook of Australian Criminology, Cambridge University Press. Bell, S. and McGillivray D. (2006) Environmental Law. Oxford: Oxford University Press. Pages 36, 38 and 396 Christine Parker: A Critical Morality For Lawyers: Four Approach, Lawyers’ Ethics: Law School, University of Melbourne, Victoria 3010. 10-22 Harr, J. (1997) A Civil Action. London: Arrow. Whole book Lauchland, K A; Le Brun, M J 1996: Butterworths Skills Series - Legal Interviewing: Theory, Tactics and Techniques: Australia: Butterworths. P.27 Mayer, A. (2006) Do We Want To See A Repeat Of "A Civil Action"? A Call for a Federal Private Right of Action to Compensate Toxic Tort Victim People v. Belge 399 N.Y.S. 2d.539; 1977 N.Y. App. Div. Lexis 13566 Read More