Legal Ethics
Legal Ethics aims to address the behavior of attorneys in accordance with their adherence to professional practice standards and codes of ethics. (Arjona 2013, pg. 51). Legal ethics theories are based on the idea that attorneys are essential to the rule of law and its administration, which is based on the concepts of justice, equity, and fairness. Lawyers have a responsibility to advance these ideals; otherwise, the public will lose faith in the nation's judicial system and turn to alternative dispute settlement methods. The other grounds for legal ethics are that lawyers are professionals issues about ethical duty and responsibility are integral component of their profession. Also, legal ethics theory is grounded on the fact that lawyers are court offices with an obligation to administer justice and serve the court. Lastly, the theory is grounded on the premise that lawyers’ role of taking the causes of others and bringing it before the core makes them a privileged class.
Models of Legal Ethics
There are three main models that have been applied in explaining legal, ethical theory. First is the autonomy model by Fried-Freedman which is based on the premise that human dignity can only be achieved through personal autonomy hence lawyers have a vital role of assisting people that are legally unacknowledged to gain human dignity. Freedman model states that the attorney is a friend who serves legally and morally regardless of their clients. The second model is the socialist model which holds that lawyers have a legal and moral obligation to protect the interests of the public and the state. With regards to socialist model, the attorney should never keep a crime confidential and protect the client from the law. This is because according to the socialist model there is no duty division between the prosecutor, judge, and the defense counsel. The third is the deontology model which holds that some acts have moral obligation regardless of the consequences that they have for people’s happiness (D'Amato and Eberle 2010, pg. 1). The aim of this paper is to use examples in demonstrating how legal, ethical theory influences the day to day legal practice.
The Standard Conception of Client-Solicitor Relationships
It clearly settled that solicitors have fiduciary duty to their clients. The fiduciary duty carries two main responsibilities for the solicitor. First, the solicitor has a responsibility to avoid conflict of interest between their clients and his/her own interest. It is not appropriate for a solicitor to gain profit at the expense of their clients. The other responsibility applies when a solicitor seeks to serve two masters and demands a full disclosure to each.
Conflict of Interest
Conflict of interest has led to some disciplinary issues due to some problems it presents to the lawyers. Conflict of interest may demand that a lawyer stops working for one person and yet in other cases may require lawyers to represent both parties. The lawyer also needs to balance the public interests comprising of that of his clients who demand full confidence from them; interest of lawyer to be instructed, and the interest of a client being represent by lawyers of their own choice. The major concern is: Which conflict, when unresolved, results in breach of legal ethics and which do not?
Potential Conflict with Representing Both Parties
One potential conflict with this regards comes when a solicitor acts for both parties since the solicitor has to be liable to either one. The solicitor may find himself in a position where he has two parties with entirely different interests. For example, some solicitors act for both vendors and buyers who have different interest. The solicitor has an obligation and a duty to protect the interest of which by holding confidential information to serve in the best interest of each client. Usually, in a case where the solicitor is expected to act for both parties, it is obligatory for them to disclose this to both parties and receive instructions from both. If the solicitor feels obligated to act in a way that contradicts the interest of either party, then they have to quit representing both.
Conflicts with Solicitors' Interests
The other concern is when a solicitor is representing a client, and their interests become vested. This applies in situations in which lawyers have business dealings or borrow from clients without making adequate disclosure to the client (Parker et al., 2008, p. 158). It is, therefore, necessary that solicitors do not accept instructions that have the potential to create conflict of practitioners’ interest or the interest of an associate.
Former Client Relationships
Solicitor relationships with regards to relationships with former clients also pose some legal, ethical issues when the solicitor opposes their former clients. This is because of the principle that the relationship between the lawyer and the client continues even after completion of the original instructions. For example, a lawyer can represent a client until the court is closed. One year later another client approaches him for representation and after accepting, he finds out that the case is filled against the former client. The lawyer will not be acting legally if they oppose the former client in the current case as it may result in breach of confidentiality (Bagaric and Dimopoulos, 2003, p. 368). The situation will also pose a conflict of interest between the lawyer and their former client.
Zealousness in Barrister Advocacy
Rule 85 of the New South Wales states the obligation of a barrister and at other times solicitor to serve clients by the first come first served. A concept that is referred to as the cab rank rule. In Victoria, this rule has been extended to not only cover the court work but also the chamber work. Barristers and by extension solicitors are expected to take the case of any client and represent them in the court of law without showing any form of discrimination.
Representation without Discrimination
Legislations such as the Commonwealth Racial Discrimination Act 1975 also protect clients from being discriminated against by lawyers (Smith, 2012, p. 615). The main concern of lawyers while following such laws is that they may be forced to represent clients whose actions have violated the constitution and the legal rights of other people. The cab rank rule is supposed to guide the conduct of barristers only. However, barristers usually use it as a defense against criticisms when they act in defense of unpopular clients (Kruse, 2005, p. 369).
Autonomy Model of Barrister Advocacy
Barristers usually follow the model of autonomy when acting on behalf of their clients. This implies that barristers are impartial in that they fill obligated to defend the interest of their clients in a manner that would ordinarily be termed as immoral (Walen, 2004, p. 4). Lawyers use all expedient means to push for the interest of their clients regardless of the wrong that the client has committed or is alleged to have committed. This relationship as stated by Freedman in the autonomy model of legal theory regards the lawyer as a friend to the client. It should be added that the friendship is unconditional in that the client can trust the lawyer with the truth regarding the crimes that they have committed and still expect the lawyer not to use the information against them.
Unconditional Defense and Moral Considerations
This implies that in Wales and England barristers who represent criminals with the most serious cases must accept any client of the first come first served basis regardless of their personality or the alleged crime. It is expected that barristers momentarily suspend their personal morality and commit themselves firmly to the system of justice. This implies that barristers are insulated from moral considerations insofar as they are acting towards the best interest of their clients. If, for example, a prosecutor assists a client (client A) to file a case against a person who allegedly abused them sexually. The person who sexually abused client A also has a right to a lawyer. If the alleged criminal conceals with his lawyer that he sexually abused client A, but his lawyer keeps this information confidentially. The lawyer can then presents other factual but misleading information that leads to the judge ruling in favor of the person who sexually abused client A.
In this scenario, the lawyer can defend himself that he acted in the interest of his client to protect his dignity. However, client A will lose trust in the court and may decide to seek other means of justice in the future. This is because the client will feel that the law of the country was not able to protect her rights.
Equality and Diversity in the Judiciary
The judiciary is vested with a special obligation under the rule of law to guarantee justice to the public without favor or discrimination. Court systems are expected to apply the law in acting upon the interest of the public. Some of the statues and constitutions currently used by the judicial system in the United Kingdom include the UK Bill of rights; House of Lords Constitution Committee in judicial inquiry process; Constitutional reform act of 2005; European Communities Act of 1972 and the Human Rights Act 1998. However, at other times the legitimacy of the court’s decision is disputed as it contradicts the opinion of the public. This presents a legal, ethical concern given that the judiciary is expected to regard each person as being equal and to respect their moral perspective. This is based on the idea of third-person moral argument which states that the judiciary must give each person an opportunity to defend their actions from their perspective since they have equal rights (Rhode, 2014, p.2241).
Moral Dilemmas for the Judiciary
Filling the gap between the third and the first-person moral perspective while administering justice may present a moral dilemma to the judiciary system. Lawyers are expected to represent the clients and assist the court in understanding the reasoning behind the actions of a criminal regardless of the nature of the crime. Based on the deontology model the judiciary has a moral obligation to performing its duty. The judiciary must ensure that justice is upheld at all times in a fair manner. However, there are instances when people have a different moral perspective from that of the general public or that of the law.
Example: Homosexuality and Adoption
For example, the Policing and Crime Act of 2017 under the Alan Turing law allow pardoning of several homosexuals who had been convicted under the old sodomy law. One ethical challenge that the judiciary system is bound to face with regards to homosexuality is on the issue of homosexual partners raising a child. One client’s moral perspective would be that homosexuals can adopt and parent a child well. However, the perspective from the majority of the public would be that homosexuals will misguide the children.
In such a case, a case may be filed involving two homosexuals who want to adopt a child and a Christian-based children's home who refuses to allow the homosexuals to parent a child. The judiciary, in this case, must understand that people are diverse and that they must be treated equally in the court of law. The judiciary must also acknowledge that the moral perspective of each party is liable and justified. They have to make a choice that would be fair without belittling the perspective of either side. Cultural diversity such as the abduction of girls for marriage, female genital mutilation, rape in the context of a married couple among another case, which is accepted in some culture yet through the constitutional lens such cases may attract significant legal liabilities. Issues such as terrorism are naturally seen as a violation of human rights. However, suicide bombers from the perspective of an Islamic terrorist group imply a physical war based on Jihad that is meant to eradicate bad people so as to gain a reward in heaven.
Conclusion
Legal ethics theory requires that lawyers conduct themselves ethically and professionally since they are responsible to their clients, the court, and the constitution as well as to the public. However, in carrying out their duties lawyers and the entire judicial system may be confronted with moral dilemmas. Lawyers working with different clients with conflicting interests or who refuse to work with former clients may find themselves in a moral dilemma especially regarding issues of confidentiality. Also, a barrister who applies the autonomy model in legal ethics may have to suspend their moral standards in defending their clients who may have committed serious crimes. As such, they fail to fulfill their moral obligation to the public and the court. The judiciary system in embracing diversity and seeking to understand the intention and reasoning behind an act of the criminal may also be forced to act in a way that is unfair to other people.
Bibliography
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