An in-depth analysis of the components within, the good faith precepts, and the conception framework help decide a contractual case. A test that attempts to ascertain whether the involved parties have justifiable interests in upholding their duties establishes the integrity of the justice system. Good faith consideration in contract situations has supplanted the legitimate interest in Australian law. When addressing the concerns of the non-repudiating party, doctrines of good faith are essential in unraveling the facets of allegiance, honesty, and reasonable behavior. The judge ought to examine the interests of both parties involved in a contract and ascertain whether the conduct meets the requirements of good faith.
The management of the courts system is a multifaceted and complex task. The complexity stems in the nature of their tasks, operating environment and their independence. The legal framework of the courts provides for the varied interpretations of the law which often are formed on the basis and relevance of the case. Decisions in courts are made by the executive who comprise of the judges and magistrates. The independence of judiciary is protected, however, the courts as institutions must be accountable for their decisions. The core tasks of the courts is that of rendering justice impartial in the most flexible and efficient manner possible. Judicial officials and the official of the court ought to maintain high standards of integrity and ethical conduct in administering their duties.
Business law often influences most aspects of life. Individuals enter into contract to safeguard and expand their business operations. This ensures that business owners are able to execute their activities and ensures that their operations are up and running. The success of a venture depends primarily on the availability of an enabling environment and supporting frameworks. The framework of business operations often entails the supporting laws and agreements entered into. A contract, for instance, binds particular operations to the involved parties and safeguards the attainment of success. It is very imperative that the elements of a contract are thoroughly understood so as to avoid conflicts in the future resulting from breaches. Contracts are formed on basis of the elements of agreement, legality, considerations, and contractual capacity. The terms provided for in the contracts help the involved parties understand their obligations and privileges.
A breach of contract warrants legal obligations of the innocent party to take reasonable action in order to minimize the losses incurred. The plaintiff thus is prevented from meeting the costs incurred during the breach and as such the defendant pays for the damages. The case involving Flintwich and Rigaud is an example of a breach of contract which regards the supply of truffles. If the plaintiff does not take any action in case of a breach, then the defendant is not liable to pay for the damages hence the defendant’s liability is reduced. The contractual law in Australia provides that the time when a call to mitigate is made is considered as the ’actual’ time of breach. Mitigation is founded on the proposition that the plaintiff cannot recover losses that could and have been avoided; and can recover the cost action to mitigate the losses. Mitigation rules apply as the contract is terminated by form of a breach. One party thus is unable to unilaterally terminate a contract before the completion of the tasks agreed by both party. If an innocent party accepts unilateral repudiation then a duty of mitigation can arise.
Doctrines of equity ensure that the justice system is fair and credibly. The doctrines prevent power abuse and unfair practices. It also prevents exploitation of the weak and vulnerable parties in the quest for justice. The equitable doctrines ensure that parties involved in a contractual event are not discriminated. The vulnerable party is exposed to loss which comes out of the actions taken by the non-repudiating party. Continued existence of the contract may be supported according to equity spirit. Parties however must equitably come together freely without coercion and with clean hands. The unconscionability doctrine helps in the fulfillment of the contractual obligations which in essence depends on the agreement of the parties. With regards to good faith in contractual obligation, parties are not required to act in subordination of their legitimate interests or in the other party’s interest. Both parties’ legitimate interests are required and form basis for such obligations. From a public policy perspective, doctrine of good faith reasonably enhance and strengthen the judicial process to be more transparent and of high integrity. The standards of determining good faith elements are achieve through the legitimate interests evaluation.
Flintwich v Rigaud case
Flintwich sues Rigaud for breach of contract regarding the supply quantity of truffles. The contract which is the basis of the contract comprise of both oral and written agreements. The plaintiff is seeking $100,000 to be paid as damages. Rigaud sought for help from a local law firm who sents Clennam to take the proof of evidence from her. The accused firmly give an account which she believes was correct. Clenman put down a draft which indicates that there must have been some misunderstanding concerning the number of truffles being supplied. He hurries to attend an event saving the draft in a USB stick and not in the laptop. Unfortunately he loses the USB stick which had the draft of the accused statement. Clenman is not mindful of the loss and believes it had no harm on the case and he can redo the interview before the trial. Flora coincidentally manages to find the USB stick and she retains it after forgetting all about it. Later on during the case she perused the disk and to her amusement found out the content relate to the case. The trial was significantly influenced by the content of the disk, and language barrier which made the accused unfamiliar with some of the questions asked. Unfortunately she is made to pay for the damage and the case is dismissed. Errors by Clennam made the case to take another twist and be ruled against them. Rigaurd is affected by judgment and later on passed and Amy took up her inheritance. Her daughter Amy learnt on what happened and filled a complaint which indicted the involved parties for their misconduct and violations. The lawyers unknowing breached the code of ethics and professional diligence. The involved owed to her and the death of her mother.
Ethics and moral practices are important aspect of any professional practice. They justify the conduct of the professionals and ensure that clients rightfully get access to services. The principles of practice ensure that services are provided in accordance to the law and specified standards. It ensures that violations of any kind are avoided and that the outcomes are acceptable by the parties involved. Ethical frameworks underpinning legal practice ensures that justice is accorded to all. The law not only makes everyone equal but punishes the offenders according to their violations. The accused must be treated innocent until proven otherwise in a court of law. Respect must be accorded to the law and should guide everyone in making of decisions. Courts in making judgment out to stick to the rule of law and considers the admissions made by all parties involved.
The professional integrity and courtesy require all law practitioners to be courteous in dealing with their clients, other people and the practitioners. The practitioners are guided by the rules as provided by the legal profession conduct rules (LPCR) of 2010. Both oral and written submission ought to be in line with the ethical and practice guideline. The Law provides, “Politeness does not prevent effective communication. It is possible to display firmness and resolve in pursuing a client’s interests without descending into emotional, insulting, offensive, discriminatory, and rude or intimidator language”
Courts should refrain from intimidation and as such accord the accused person a fair hearing. Practitioners should not in any way threaten the accused persons so as to favor their clients and limit them from responding appropriately. Cases of language barrier ought not to be assumed and proper translation should be adopted in any instance where necessary. The representation of the client should make their case out of their client’s consent to avoid contradictions. Furthering a case involving a client by unfair means is prohibited by the law. With relevance to the Flintwich v Rigaud case, the defendant was disadvantage by language barrier which made her comments to be taken to mean opposite of what she otherwise meant. The practitioner knowingly assumed that the aspect of language might help with the case which essentially is a breach of law and a disadvantage to the client. The practitioner thus did not follow the ethical and professional obligations as stipulated in the guidelines of their work practice.
All law practice should not in any way attempt to further a case in a dishonest and unfair manner: Rule 16(1) LPCR. A practitioner should not by way of conduct attempt to try and assist the client while disregarding their obligation to administer justice. The rights of the clients ought to be factored before any submission made. The parties in a contractual agreement should be treated to have equal rights despite the breach that may exist. Providing wrong advice to the client such in using delay tactics and advancing wrong statements with a desire to achieve a favored outcome is a breach as professional conduct in actual practice. Practitioners ought to be independent and exercise their authority with constraint of abusing their conduct and that of their clients.
Regarding legal practice and litigation, practitioners should not only act as an agent to a client but also a professional who is responsible for giving advice and making independent legit judgments. The practitioner regardless to the client’s instruction must think seriously on the ethical principles in order to be respect and trusted. This is instrumental in justice administration and representation of the client. They should perform their duties diligently as required on behave of the people they are representing: Rule (7e) LPCR. Unsatisfactory conduct by professionals limits the expectations of the client in terms of competence. This can be treated as a misconduct if there is consistent and substantial unprofessionalism.
Clients must be constantly sought for clarification and informed on the progress of the case. To diligently accomplish the task before them the practitioners must tirelessly while putting to perspective perseverance, care and restraint. Appropriate instructions ought to be sought directly from the clients and any assumptions of any sought should not be tolerated. Lack of diligence often is a professional misconduct and practitioners ought to pay for the disregard of their obligation.
The right to privacy and property play crucial role in contractual cases. The confidentiality of the information provided by the client to a practitioner is very important in the determination of the case. The instance regarding Flintwich v Rigaud case, where the practitioner lost his recording material and is later found by a lawyer representing the plaintiff is a disadvantage to the case. It violates the client’s right to security of information and exposes their plot in dealing with the case. Clenman’s carelessness resulted in the accused paying for the damages which were unwarranted.
Rationale of the law relating to legal ethics is enshrined in the law. Such laws include: Privacy provision guidelines under Section 95 of the Privacy Act 1988 and the handling of personal information should not breach the Privacy Act 1988. Legal practices and guide in the justice department ought to function with respect to the rule of law and the provision as per the legal ethics. Concept of a profession violations and misconduct should be punished in accordance with the law. The provisions are contained in the Legal Profession Act 2008 (WA) and the Legal Profession Conduct Rules 2010 (WA). Ethical conduct and practices are also provided for in the WA Law Society Ethical and Practice Guidelines
Ethical conduct is fundamentally important in practices of law. The entry of individuals into the legal practice is governed by the 2008 Act. Prerequisite conditions and requirements first ought to be met before one is admitted into practice. The law practitioners must have successfully completed their legal studies and must demonstrate their fitness to the task. The submission by a particular candidate into practice must satisfy the Legal Practice Board and the Supreme Court of Western Australia in order to be admitted into practice. Legal practitioners should also annually obtain a practice certificate which is current and up to date. The failure of the legal practitioners to update their certificate is an offence. The practitioners are also required to complete a study in the field of legal ethics each year. There are several opportunities that have been put in place in Western Australia by the Law Society to provide legal ethics education. The ongoing legal studies education is a step in ensuring that ethical conduct is maintained by the practitioners.
A clash between the duty to court and duty to client may occur in the administration of justice. This is however enshrined by the Legal Profession Conduct Rules 2010 (WA) pursuant to the Legal Profession act. This can be outlined by the fundamental practitioners’ duties where the duty to court and justice administration lay paramount amid the inconsistencies relating to other duties. The practitioners’ obligation ethically as provided for in the act guides them to act in the interests best to the clients. They should be courteous and undertake their duties are undertaken honestly. Professionals should act diligently and competently while delivering the legal services. The integrity of the practitioners should be maintained at all times and should comply with the available law and rules. In the course of providing their services, the practitioners ought to diligently engage in ethical conduct. If the practitioners do not comply they are deemed not fit and are improper to practice law. Professionals ought not to be prejudicial in their mandate as it may bring the legal practice into disrepute. Ethical conduct arising from the various litigation of law and the act by the advocates is expected to be at the best interests of the clients.
Legal practice ought to be guided by the code of conduct and ethical standards of professional practice. Lawyers and other judicial officials ought to conduct themselves in high moral standards and behavior. The moral character of the legal practice is important in the attainment of justice for victims and punishment of offenders. Professional codes are equally important and essentially in undertaking the duties to court by the legal practitioners. The codes of professionalism in the justice department accrued through training acts in shaping the moral and ethical character of the legal practice. The development of character among the legal practitioners is backed by constant ethical studies and competent awards updated yearly. Ethical dilemmas are best handled by way of creating moral understanding and setting of standards. Australian legal practice has an exceptional means of testing the ethical standards and practice. The commissions such as the Queensland Legal Services provide a system of ethical checks and standards that are adaptable. The ethic checks in the workplace are looked at from the cultural and practical perspective. The quality of the legal practice is influenced by the legal theory and the ethical codes of conduct.
Lawyers’ ethical conduct is bounded by their discipline, liability and admission in case of breaches during the undertaking of the fiduciary tasks. The attainment of the public policy goals often lies in the regulatory framework which must consider the role of moral and ethical conduct. Public have a crucial role in monitoring the justice department and ensuring that ethical conduct is maintained at all times. Ethical clients and practitioners are founded by the regulatory and professional framework set in place to meet the judicial standards. Lawyers without expertise and are not conversant with the legal practice ethics are at risk of not practicing law. Australians expects that their justice systems are able to deliver fair and credible services that meet their expectations. Regulatory framework ensures that the courts are competent and able to discharge their mandate efficiently. The lawyer’s autonomy is institutionalized using a self-regulating mechanism that makes them independent of the government of the day. It is thus important the practitioners defend their clients without any fear or contradiction. Lawyers have an advocacy role which helps in building their zeal and loyalty to their clients.
The legal practice morals and ethical standards are dependent on the values and moral consideration of the community in general. Clients are duty bound to maintain law and order, a breach resulting from breaking the law can breach an individual’s lawyers duty to court and respect to the authorities. Lawyers can be held in contempt of the duty to court is they are deemed to be actively dishonest and not functioning in accordance with the law. Liberal democracies ensures that the law protects the individual‘s rights and ensure that ethical accountability is attained in the quest for justice.
Traditionally the clients often are supposed to instruct their lawyers pertaining to a case involving them. The broad ends of such relation are assumed in the law to be controlled by the client. The legal obligations and interests of the client are better understood by the lawyers who represent them in court while advocating for their interests. Lawyers should be cognizant of the impacts of their client’s actions on the things, people and common decency of human beings. Regulatory framework guiding the ethics in legal practice offers professionalism, discipline and integrity to the justice system.
The controls in regulation help in ensuring that only qualifies persons who have good moral behavior and character are allowed to practice legal issues. This help in building the clients trust in the judicial system. Controls as such are based on the academic performance, trainings, character and legal qualification. Record of dishonesty, disregard to law and criminal misconduct disqualifies individuals from the legal practice. Privacy and consistency in the admission is necessary while disclosing anything that may jeopardize character in terms of judgment and legal practice. Candidates who are remorseful for wrongdoings in the past, shows candor in revealing information on issues and have a dynamic character and questionable conduct cannot be admitted for practice. Prospective lawyers ought to have close relevance to the law of the land and avoid being involved in the social causes that are outside their legal system.
The disciplinary system assumes that lawyers who enter into the practice are competent enough to have the ability to serve every client well. The regulation set in place helps in ensuring that character is maintained and thus sanction which occur are considered to be related to dishonesty, trust issues and fiduciary duties of interest. Standard of service is set by the disciplinary framework and helps in ensuring that all the clients are served accordingly without any prejudice. Regulation helps in ensuring that there are no discrepancies and clients are confident of the legal practitioners. This will enable them to always seek for judicial redress in case of a dispute. Legal professional associations are responsible for the investigation and persecution of the disciplinary offences. Australian courts with superior jurisdiction help in disciplining lawyers and ensuring that justice is maintained. The standards of moral conduct can hence be enforced by the courts and thus regulate the legal practice well. Lawyers can be expulsed from the profession when the reputation of the public and the professionalism is at stake. Educating the practitioners is very crucial and more advocated for than disciplining the lawyers.
Cases of equity and fiduciary duties are enforced in pursuit of the client’s loyalty and thus lawyers should not have conflicting interests with their clients. Lawyers ought to disclose fully personal gins and conflicts and obtain their consent before acting on their behalf. They ought to provide legal advice and progress on the case. Information material should be disclosed conclusively with regards to the affairs of the clients. The legal duties ensure that the clients are better protected from the lawyers who may be trying to exploit them. In reality lawyers often dominate in legal relationships and will usually make decisions at instances of conflicting statements and interests.
Conclusion
In conclusion ethics and codes of conducts form the backbone of most legal organization today. Essentially they help in avoiding the violations and breaches of contracts. The laws or agreements in a contract guide the parties involved in undertaking mutual benefiting tasks and sharing of resources. The courts use the laws have helped in demystifying issues associated with contracting partners. Breaches are best handled in a court of law and courts should apply the rule of law in making their judgment in a diligent and most appropriate manner. The legal ethics practices are indispensable and cannot be avoided in the day to day legal practice. It is thus vital for all stake holders in the justice department to function in line to the provision of ethical conduct. The legal practice is guided by the fundamental provisions of the courts which adhere to the layout ethical standards.
Works Cited
Brian Opeskin, ‘The State of the Judicature: A Statistical Profile of Australian Courts and Judges’ (2013) 35(3) Sydney Law Review 489.
Legal Profession Act 2008 (WA), the Legal Profession Conduct Rules 2010 (WA).
David Luban, Lawyers and Justice: An Ethical Study (1988).
James Crawford and Brian Opeskin, Australian Courts of Law (Oxford University Press, 4th ed, 2004).
Justin Oakley and Dean Cocking, Virtue Ethics and Professional Roles (2001);
Philip M Langbroek and Marco Fabri (eds), The Right Judge for Each Case: A Study of Case Assignment and Impartiality in Six European Judiciaries (Intersentia, 2007) 3.
William Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (1998).
Websites
http://law.anu.edu.au/scripts/class.asp?unitID=997
http://law.anu.edu.au/UnitUploads/LAWS1202-11052-FullOutline.pdf
