Different Approaches to Lawyers' Ethics - Literature review Example

Different Approaches to Lawyers’ Ethics Name Course Lecturer Date Introduction In the centre of a lawyer’s life is a thick line of activities and chaos that bring about the question of ethics and values. The ethics and values that relate to a lawyer’s profession make the presence of a lawyer recognized like a ghostly spectre. Numerous questions and concerns about ethics sit upon the pleadings of a lawyer and accompany the lawyer while he rushes to represent clients in a court of justice. The silent question of ethics and value hangs suspended whenever a lawyer plays his role. Nevertheless, a lawyer has to make a choice. There exists both difficult and common ethical dilemma that contemporary lawyers cannot avoid in their legal practice. In Australia, the issue of ethics finds common ground within the local legal system and practice. Decision making and ethical reflection are processes that take place in a lawyer’s consciousness. When lawyers face a serious ethical problem in a case, they ought to understand that the choice they make has its consequences. A lawyer has to make a decision about what is right or wrong when there are numerous facts that can cause potential moral conflicts. There are four main frameworks to a lawyer’s ethics in Australia’s legal practice. These include, Responsible lawyering, Adversarial advocacy, Moral activism and ethics of care (Parker & Evans, 2007). Parker & Evans (2007) introduce ethical reasoning as a cautious awareness in the mind of a lawyer. Numerous factors such as beliefs, priorities and private principles influence the ethical behaviour of a lawyer. A practicing lawyer should be able to use one or an amalgamation of these frameworks when faced with an ethical issue. According to Maughan & Webb (2005), people should not ignore the ethical dimensions of a lawyer. This paper proposes “Responsible Lawyering” as the best framework in contemporary legal practice. Description of ethics Pojman (2012) describe ethics as a branch of philosophy that deals with how people ought to live with the idea of good, and concepts such as right and wrong. It is a framework against which people can evaluate the action or character of a person. According to the Free Dictionary (2013), ethics reefers to what is goof for people and society, and establishes the nature of duties that people owe themselves and other people. Ethics deals with what constitutes a good life (Atkins, Britton & De, 2011). In the legal system context, action refers to what it means to take the right action in a given case. On the other hand, character refers to what it means to be a good person. The decisions and actions made by lawyers cause people to judge them as either responsible or irresponsible lawyer. A lawyer’s actions and character shows the degree to which the lawyer, values ethics in his legal practice. Sources of Legal ethics The sources of legal ethics include pragmatic and abstract sources. Pragmatic sources include professional conduct rules, provisions regulating legal practice and legal obligations in contract and tort among others. Abstract sources include normative philosophy that relates to the behaviour of lawyers. According to the Australia Law Reform Commission (n.d), the key sources of professional responsibilities include general law, professional and statute rules. There are numerous statutory sources of lawful ethical obligations in Australia including civil procedure legislation and the legal profession in each jurisdiction, model laws and other pieces of legislation (Australia Law Reform Commission, n.d). Characteristics of Responsible Lawyers A lawyer who acts as a responsible lawyer possesses numerous traits that make him better than moral activists, adversarial lawyer sand ethics of care lawyers. The ethics of a responsible lawyer is influenced by his social role. The content of that role is a component of the lawyer’s role as a guardian of the legal system and an officer of the court. According to the NSW Government (2009), a lawyer’ duty to the court is a primary duty, which stands above other ethical duties. Alongside the lawyer’s obligation to the court is a responsibility to the community. This requires a lawyer to adhere to high ethical standards in order to uphold the law. According to Head & Mann (2009), responsible lawyering is the notion of viewing a lawyer as an officer of the court, trying to make the law work as justly and fairly as possible. In this case, the duties of the lawyer may tamper the duties to the client in order to ensure the integrity and compliance with the spirit of the law. This ensures that the decisions made depend on substantive merits instead of procedural or formal grounds (Head & Mann, 2009). A responsible lawyer will have duties to his client, but above this, a duty to maintain the integrity of law and promote justice according to the existing law. Sometimes, a responsible lawyer may act against the interests of his client in order to defend the legal system from exploitation and injustice. The lawyer’s responsibility to the court takes the highest responsibility over his responsibility to anything or anybody else, including the client. In situations where the an adversarial lawyer would be willing to exploit possible loopholes, other people’s mistakes and procedures that can help to defeat justice, a responsible lawyer’s actions would consider his duty to comply with the law. A responsible lawyer, who is slightly in tandem with Kant’s theory, firmly and sometimes gives priority to fairness in the dispute resolution process and his duties to the court (Evans, 2011). Another characteristic of a responsible lawyer is that his job comprises of public administration of justice. This responsibility applies even in private disputes; hence the lawyer pays attention to the interests of the public instead of private disputes. A responsible lawyer has the responsibility to ensure that the legal system works fairly and with integrity. Allegiance to fair law process is crucial and constraints the behaviour of a responsible lawyer on behalf of his client. A responsible lawyer must preserve and treasure the social good and follow all rules of procedure. A responsible lawyer ensures that there is maximum adherence to the existing legal systems. He mediates the wishes of the client with the substance of existing law. This approach to the law is quite critical in the contemporary world because it ensures that criminals do not escape the rule of law. In ensures that there is justice since a lawyer does not support client interests that are against the existing legal framework. The attorney fights for what is right according to the existing law. This leaves responsible criminals with no room to evade the law and continue committing crimes. A responsible lawyer set an example to other people by not arguing any technical or legally flimsy points just to benefit the client. Some other attorneys such as adversarial attorneys argue just to make the client win even if the client committed the crime. This means that an adversarial lawyer encourages criminals to commit a crime while a responsible lawyer discourages criminals from committing crimes. In responsible lawyering, the lawyer perceives personal moral beliefs as irrelevant. A responsible lawyer views ethics as inherent in his responsibility as an officer of the court, who ought to implement the law in case of acting against the law. Responsible lawyers do not pursue justice according to external standards. They promote the basic values of the existing legal system. This does not apply to other lawyers such as moral activist lawyers and ethics of care lawyers. According to Moliterno (2010) a moral activist lawyer shares responsibility with the client in terms of goals and means of the representation. A moral activist tries to persuade the client to be morally right, not merely what is legally permitted or required (Moliterno, 2010). Unlike responsible lawyering, the moral activists approach encourages lawyers to have personal convictions concerning what it means to do justice under different circumstances. The moral activist framework may cause lawyer to involve themselves in politicized law reforms, and represent the client based on purposes of legal and social change. A lawyer who uses the moral activist approach may sometimes lead the client into trouble such as admitting liability, for a crime they did not commit. Unlike moral activism, responsible lawyering does not place the lawyer’s belief in a potentially faulty perception of the law and justice. On the other hand, the ethics of care approach focuses on lawyers’ responsibilities to people, society and relationships, and holds that the role of a lawyer-client relationship is the moral worth and goodness of both the client and the lawyer. A lawyer who uses the ethic of care model believes that preserving relationships and evading damage are more vital than impersonal justice (Mortensen, Bartlett & Tranter, 2011). Unlike responsible lawyering, ethics of care might preserve client needs or relationships at the expense of social injustice. According to King (2009), the “ethics of care” framework emphasizes on notions of relational and personal ethics. It deals with preserving and restoring lawyer-client relationships. Ethics of care views relationships as more crucial than social ideas of ethics and justice, and institutions of the law (King, 2009). A responsible lawyer does not preserve client needs and relationships at the expense of injustice. He fights for the existing rule of law. The Benefits of Responsible lawyering Responsible lawyering is the best approach that lawyers should use because it has numerous benefits as compared to adversarial, moral activism and ethics of care. A responsible lawyer helps in the implementation of existing laws, a mechanism that ensures that people do not escape punishment after committing a crime. A responsible lawyer helps to implement existing law by resolving ambiguities in favour of effective enforcement of substantive law. In addition, a responsible lawyer does not take advantage of loopholes, technical or procedural rules to excuse wrong doing. Responsible lawyering ensures that wrong doers face punishment for their crimes, thus discouraging other people from committing the same crime. The lawyer does not use potential loopholes to infringe the rule of law. Apart from advocating for the needs or their clients, lawyers who employ the responsible lawyering framework also represent the law. They must help the client to comply with the mandate of the law. It is desirable that such lawyers remain independent from the state and also autonomous from the client and other private interests. The lawyer fights for the mandate of the law and the interests of the client, as well. This ensures that the lawyer does not focus on the interest of the client and disobey the mandate of the law. A responsible lawyer does not focus on the interests of the interests of the client entirely. In this case, a responsible lawyer can moderate the client’s tendency to extract maximum advantage from the law. This makes responsible lawyering better than any other framework in the contemporary legal system, in Australia. It is an issue of concern that resourceful parties may escape the rule of law at the expense of the unfortunate parties. Responsible lawyering has the capacity to reduce the degree to which people may skew legal outcomes in favour of parties who are more resourceful that others. Another advantage that makes responsible lawyering the best and appropriate framework is that responsible lawyers do not impose limited and arbitrary interpretations of the law on unwilling clients. Instead of doing that, a responsible lawyer use creative means to combine technical skills, a sense of legal and social responsibility and a vigorous pursuit of the needs of clients. The Australia legal system bases on a basic belief in independence, justice and the rule of law. All people in Australia, whether citizens or non-citizens, face equal treatment before the law. The law ensures that there is no arbitral or unfair treatment of people by the government of officials (Department of Foreign Affairs and Trade, 2012). This is one of the reasons why a responsible lawyer in better than other lawyers. He works against arbitral and unfair treatment of the client. In the pursuit for justice and client’s interests, a responsible lawyer uses creative forms of compliance with the existing law. This is a considerate mechanism that aims at minimizing losses to the client. A responsible lawyer accomplishes this while advocating for the purposes of the law. A responsible lawyer interprets the law the way it is; hence, ensuring that other people, including the client, do not get wrong facts about the law. This approach is quite critical in the contemporary error because it can help people to get the right interpretation of the law. Responsible lawyers enable people to understand the law since they stand for the truth according to the existing law. The ethical rules that guide lawyer-client relationships mandate that lawyers should exercise independent professional judgement when representing clients. According to the dominant view of the role of a lawyer, the professional ethical norms denote that lawyers should provide clients with a well-versed understanding of legal rights, as well as obligations (Burton, 2004). A responsible lawyer plays a significant role in educating the client about the law. This attribute makes him an excellent lawyer compared to other lawyers. According to Cooper Daniels Law Firm (2013), the most crucial quality of a lawyer is that he must have an excellent understanding of the law. Responsible lawyering should be the framework used in contemporary legal systems because it will enable lawyers to learn every bit of the law. The application of responsible lawyering is of numerous, significant benefits to the client. According to the NSW Government (2009), the ethical duty of a lawyer arises because it places a legal specialist in a fiduciary relationship with the client. A responsible lawyer embraces the duty of offering advice to the client. In this context, responsible lawyering is better than other frameworks because it causes the client to place complete confidence and trust the legal practitioner. The practitioner does not place himself in a position whereby he considers his interests instead of the interests of the client. A responsible lawyer offers the client with adequate advice about how the law can evaluate the moral character of the clients conduct. This approach offers significant benefits to clients by enabling them to have a better understanding of the law. Responsible lawyering provides clients with the opportunity to understand how the law will deal with their behaviour. Responsible lawyering is the best approach in contemporary legal system because it offers clients with another perspective against which to determine the appropriate course of action. The responsible lawyer becomes an agent of the existing legal system whose responsibility is to address the interests of the client while adhering to the rule of law. A responsible lawyer changes the clients’ perception of law and makes them comprehend the importance of law. In addition, responsible lawyering ensures that people get appropriate advice as well as punishment for their deeds. This advantages extend to the entire state because people get to know the consequences of their actions according to law. Conclusion In conclusion, ethical reasoning and consideration is extremely critical in any legal system. This paper has tacked the issue of ethics in the context of Australian legal institutions. The ethical duty of a lawyer arises because it places a legal specialist in a fiduciary relationship with the client. The silent question of ethics and value hangs suspended whenever a lawyer plays his role. This paper indicates that a lawyer has two main responsibilities in their legal practice. A lawyer has a responsibility to act as an officer of the existing court system. In addition, a lawyer has the responsibility to represent the needs of a client despite the economic, political, social and cultural orientations. Both responsibilities require a lawyer to adopt one of the four frameworks of lawyering. The information presented in this paper considers the responsible lawyering approach as the most suitable approach in contemporary legal practice. The characteristics of this approach indicate that it does not take advantage of any loopholes, other people’s mistakes and procedures that can help to defeat justice. Responsible lawyering is the best approach because a responsible lawyer considers himself as an advocate of both the court and the client. A responsible lawyer does not consider personal interest, but opts to fight for the truth. Therefore, adoption of the responsible lawyering approach will be of significant benefit to the contemporary legal practices. There is a lot of corruption and illegalities that cause resourceful parties to avoid the law despite committing crimes. Adopting the responsible lawyer approach is a sure way of ensuring that legal practitioners advocate for equality. It can ensure that every individual is aware of the consequences of acting against the law. . References Atkins, K., Britton, B., & De, L. S. (2011). Ethics and law for Australian nurses. Cambridge: Cambridge University Press. Australia Law Reform Commission (n.d) “Ensuring Professional Integrity: Ethical Obligations and Discovery” Alrc.gov. Retrieved 26 Mar. 13 from http://www.alrc.gov.au/publications/4.%20Ensuring%20Professional%20Integrity%3A%20Ethical%20Obligations%20and%20Discovery/sources-legal-eth Burton, A. O. (2004) “Cultivating Ethical, Socially Responsible Lawyer Judgment: Introducing the Multiple Lawyering Intelligences Paradigm into The Clinical Setting” Clinical Law Review. Retrieved 26 Mar. 13 from https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=11+Clinical+L.+Rev.+15&srctype=smi&srcid=3B15&key=fa01bd2176229746eb660ee81f3d5377 Cooper Daniel Law Firm (2013) “The Characteristics of a Good Lawyer” Cooperdaniels.com Retrieved 26 Mar. 13 from http://www.cooperdaniels.com/characteristics-of-a-good-lawyer.php Department of Foreign Affairs and Trade (2012) “Legal System. About Australia.” Dfat.gov. Retrieved 26 Mar. 13 from http://www.dfat.gov.au/facts/legal_system.html Evans, A. (2011). Assessing lawyers' ethics. Cambridge: Cambridge University Press. 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