Legal Ethics & Professional Identity of a Lawyer

Legal Ethics - professional identity of a lawyer Being Ethical Lawyers are constantly confronted by ethical questions in day- to-day practice Some of the reasons why ethical dilemmas arise are:  Lawyers’ duties (and the values they reflect) sometimes conflict  Most often the rules governing...

Legal Ethics - professional identity of a lawyer Being Ethical Lawyers are constantly confronted by ethical questions in day- to-day practice Some of the reasons why ethical dilemmas arise are:  Lawyers’ duties (and the values they reflect) sometimes conflict  Most often the rules governing the conduct of lawyers provide a clear answer as to which duty is to prevail, but at other times they do not  Sometimes the relevant rules are stated in very general terms and lawyers are permitted a great deal of discretion 1. Your client admits to you that he killed the victim but wants to plead ‘not guilty’? - You can choose but must plead guilty 2. In the middle of a trial, you learn of an important recent High Court decision which undermines your client’s legal position but the opposing lawyer is obviously unaware of it? - You can pretend you don’t know but you shouldn’t 3. Your client, in breach of a child custody and access order, disappears with the child and only you know where they are? - Must disclose for child’s well being 4. You represent a defendant in a criminal matter concerning driving under the influence of alcohol. The Crown Prosecutor tells the court that your client has no prior convictions, but you know that he has two prior convictions for the same offence? - You don’t have to disclose because you’re not setting a precedence and won’t harm anyone A consequentialist approach to ethics focuses not upon compliance with ethical rules but upon the consequences of actions and choices The most frequently referred to and widely accepted version of consequentialism is utilitarianism: the ‘right’ thing to do is the option that maximises the public good, i.e. that results in the most amount of pleasure and the least amount of pain for all concerned. Virtue ethics places emphasis upon character rather than compliance with rules or the consequences of actions. An ethic of care is concerned primarily with the responsibility to maintain relationships and communities and to respond caringly to others in particular situations. Anthropocentrism literally means ‘human-centredness’. It refers to those ethical theories or frameworks that grant moral status only to human beings. Non-human entities, including animals, do not qualify for moral consideration. Defining Ethics Defining Professionalism Ethics Ethics is the study of the principles that guide people in choosing between what is right and what is wrong, in deciding upon the best course of action and in judging the actions of themselves and others  The term ‘ethics’ is also used to refer to the principles themselves, and an ‘ethical’ choice is one that is consistent with these principles  There are many sources of ethical principles, including religion, spirituality, philosophy, tradition and custom, and professional practice rules  It is ethical principles to which you refer when you critically evaluate your lifestyle and decide whether you are living a ‘good’ life Professionalism Professionalism is the skill, good judgment, and exemplary behaviour that is expected of a professional In the context of law, professionalism requires:  Dedication to serving clients before self  Dedication to serving the public interest, improving the law, and improving the profession  Devotion to honesty, integrity, and good character  Practice in context (understanding the ‘big picture’)  Maintenance of competence in a specialised body of knowledge and skills  Independence and self-regulation Ethics and Morals The terms ‘ethics’ and ‘morals’ are often used interchangeably, however, there is a difference between them  Morals – the rules or principles for distinguishing between right and wrong  Ethics – the philosophy of morality i.e. the study of morals Ethics is the branch of philosophy that seeks to answer questions about:   the fundamental nature of moral values (meta-ethics)  how moral values should be determined (normative ethics)  the content of particular moral values (descriptive ethics)  how moral values can be applied in particular situations (applied ethics)  how a person can be or become a ‘moral person’ (moral psychology) Greek Ethics – Aristotle etc Religious Ethics Modern Ethics Modern ethics is characterised by the debate between those who insist that an ethical choice is one that is consistent with ethical values that are objective and universal (the deontologists) and those who insist that an ethical choice is one that has the best possible consequences (the consequentialists) The are also other positions, such as virtue ethics and the ethics of care A deontological approach to ethics is one that insists that an ethical act is one that is consistent with ethical rules – a deontologist considers the act itself rather than the consequences of the act or the intentions of the actor One deontological approach is divine command theory: a person does the right thing when they comply with ethical rules based upon the word of God A secular (rather than religious) deontological theory is that of Swiss philosopher Immanuel Kant, and his notions of the categorical imperative and the practical imperative A consequentialist approach to ethics focuses not upon compliance with ethical rules but upon the consequences of actions and choices The most frequently referred to and widely accepted version of consequentialism is utilitarianism – the ‘right’ thing to do is the option that maximises the public good i.e. that results in the most amount of pleasure and the least amount of pain for all concerned Virtue ethics places emphasis upon moral character rather than compliance with rules or the consequences of actions   If a person focuses upon developing a virtuous character, they will know what to do when confronted by an ethical dilemma  Debate as to which ‘virtues’ one should develop An ethic of care is concerned primarily with the responsibility to maintain relationships and communities and to respond caringly to others in situations  Feminist ethics is an example of an ethic of care Extending Moral Status What is it? Whether we need to extend to the animals?? To the nature and trees and forest? Do we focus too much on humans? Law and Ethics Laws and ethics are both rules of conduct – both regulate human behaviour and guide human choices  Laws are rules of conduct made by the state and enforced by prosecution or litigation  Ethics are rules of conduct that either exist objectively or are constructed by humans and that are enforced by the judgement of God, the universe, the community or one’s peers Legal rules and ethical rules usually coincide, however, there are times when legal rules and ethical rules are in conflict Professional Ethics Assume that several young women in the local area have gone missing, their fate unknown. Your client admits to you that he has murdered the women in question and has told you where the bodies are. Can you tell the authorities where the bodies are so that the families of the victims at least know what happened to them? - they’re already dead so you don’t have to say anything and there is no further conspiracy and saying something may affect your safety. Use your own judgement, is it possible that he would do more of  that? (confidentiality agreement, you don’t have to disclose, public interest is more people going to get killed?) but if you want to disclose to the authority is how you justify your action. According to the relevant rules of ethics, you should not disclose the information. However, would you feel a sense of moral responsibility to do so? Are we ‘Sworn to Silence’? As this previous example illustrates, the debate about the meaning of ethics is more than a matter of semantics There are several important questions that arise:  Can (and should) lawyers draw a distinction between acting ‘morally’ and acting ‘ethically’? something that you think in your heart and where the rules say something else.  To what extent, if at all, should lawyers let their personal moral standards influence their professional activities? The duty to ur client come before your ethics. But if there is a clash, how are you going to address that.  What kind of lawyers do you want to be: a moral lawyer, an ethical lawyer, or both? Look after your safety.  Under what circumstances is ‘a lawyer with a conscience’ justified in refusing to act for a client whom he or she judges to be morally unworthy? Lawyers Duty to the Law A duty to the ‘administration of justice’ (comes before the duty to the client)  Predominantly fulfilled by discharging one’s duty to the court, clients and colleagues  Applications of this duty in the context of criminal prosecution, criminal defence and family law Includes duty to obey and uphold law  Arguably includes duty to promote access to justice and undertake pro bono service Lawyers Duty to the Court A legal practitioner is regarded as an ‘officer of the court’ – (the duty to the court overrides all other duties) A lawyer must, for example:  act with due courtesy to the court  not knowingly mislead or deceive the court  advise the court of all relevant law  ensure proper and responsible use of court process and privilege  use best endeavours to avoid unnecessary expense and time Lawyers’ duty to colleagues The duties owed to other practitioners are divided into:  Communications (including those made for the purpose of negotiation)  Undertakings  Taking over matters from another practitioner  Communication with another practitioner’s client Examples include:  Must not knowingly false statements – Communications made ‘without prejudice’ – Must not communicate directly with other lawyer’s client Lawyers Duty to client  the duty of representation  the duty to inform and advise  the duty to act on instructions  the duty to consider settlement  the duty to continue to act  the duty of competence and diligence  the duty of loyalty  the duty of confidence The relationship between a lawyer and his or her client is governed by:  the general law (particularly the law of contract, torts, and equity)  legislation (some dealing specifically with the legal profession)  professional practice rules CONTRACT The relationship between a solicitor and client is contractual. The contract of service is referred to as a ‘retainer’  A solicitor is required to exercise ‘reasonable care and skill’ in carrying out his or her obligations under the retainer Breach of the retainer can lead to civil action by the client  General rules relating to the validity, interpretation and enforcement of contractual provisions apply in the context of a retainer agreement TORTS There is also a duty in tort (negligence). If for example, a solicitor negligently advises how a will is to be witnessed and causes the gift to fail, he or she will be liable for the loss  In general terms, the question is whether the lawyer has departed not merely from an accepted practice in the profession but from standards of competence which the profession would accept as appropriate to the matter in question  NB: Barrister immunity (discussed later) EQUITY Special nature of relationship is recognised by the law of equity – the relationship is considered to be a ‘fiduciary relationship’  A fiduciary is obliged to give undivided loyalty to the client, to avoid a conflict of interest, to account for any benefit or gain obtained by the fiduciary, and to protect the confidentiality of information confided by the client  Lawyers often receive money from clients (such as payment of anticipated costs and disbursements) or on behalf of clients (such as settlement monies from the sale of a property). These funds are held on ‘trust’ for their clients (a species of equity) and the lawyers have resulting obligations Lawyers Duties Legislation  Substantial uniformity now exists across the States and Territories  Model Provisions for the Legal Profession (2004)   The Model Provisions (commonly referred to as the Model Bill) do not require conformity in every respect Most States and Territories have all passed legislation to adopt the Model Bill The relevant legislation in Queensland is the Legal Profession Act 2007 (Qld) Profession Practice Rules  The professional bodies in each state (that is, the Law Societies and Bar Associations) have established rules of conduct for their members.  The rules provide guidance to lawyers on a range of ethical issues, but they do not provide an exhaustive code of conduct for practitioners  Applicable in Queensland Solicitors – Australian Solicitors Conduct Rules 2012 Administered by the Legal Services Commission  The Solicitors’ Rules in each jurisdiction generally consist of 5 majors categories: o Rules governing relations with clients o Advocacy and litigation rules o Relations with other lawyers o Relations with third parties o Miscellaneous rules relevant to legal practice  A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty: Rule 3.1  Subject to this paramount duty, a solicitor must act in the best interests of their client; be honest and courteous in all dealings in the course of legal practice; deliver legal services competently, diligently and as promptly as reasonably possible; avoid any compromise to their integrity and professional independence; and comply with the Rules and the law: Rule 4.1  Each State and Territory also has professional rules dedicated to barristers  Substantial uniformity has been achieved across jurisdictions ⎼ In 1993, the Australian Bar Association published a Code of Conduct as a framework for national uniformity – revised in 2010 Applicable in Queensland: ⎼ Barristers – 2011 Barristers’ Rule ⎼ Administered by the Bar Association of Queensland Know your Boundaries A client wants to do their will and approaches a lawyer to draw it up. The client says they want to leave all their assets to the Salvation Army, and the lawyer says that the Guide Dogs do good work, and it would be a better organisation to leave a legacy to. NO A client goes to a lawyer in a state of distress. Her estranged partner came to the house and broke a window last night, and she wants to take out an apprehended violence order (AVO) against him. She says that she is incredibly scared and is having difficulty sleeping. The lawyer tells the client she can stay overnight. NO Ethical Dilemma Conflict between your professional and personal ethics? The traditional view is that the lawyer’s duty to the client overrides all other duties and considerations:   ‘An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world, that client and no other. To save that client by all expedient means, to protect that client at all hazards and costs, to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he will bring upon any other’ (Lord Brougham) Justifications for the traditional view:  Essential for successful operation of the adversarial system of trial It is more likely to lead to access to the law for all Criticisms of the traditional view:  Likely to lead to development of undesirable personality traits  The adversarial system is far from perfect, and it is not certain that it is the best way to achieve the fairest result Alternative view:  Responsible lawyering emphasises the lawyer’s role as an officer of the court and a trustee of the legal system. This is an approach to professional ethics that places more emphasis upon the lawyer’s responsibility to facilitate the public administration of justice  The ‘traditional’ approach and ‘responsible lawyering’ approach are the approaches most likely to be encountered in public statements about lawyers’ ethics Other views:  A moral activist approach to professional ethics emphasises the lawyer’s role as an agent for justice through law reform, public interest lawyering and client counselling – contrary to the traditional view, moral activists see’s themselves as morally responsible for their actions as lawyers  An ethic of care approach (discussed earlier) is like moral activism in that it does not oblige a lawyer to separate their personal values from their professional responsibilities, and in fact insists that a lawyer remains morally responsible for their actions as a lawyer even when carrying out their client’s instructions.  Where moral activism emphasises a lawyer’s responsibility to achieve social and political justice, the ethic of care is more concerned with personal and relational ethics. Instead of focusing upon individual rights and entitlements, a lawyer should focus on relationships and social obligations Advocacy and Ethics The ASCRs include a significant number of rules that relate specifically to advocacy and litigation, including:  A solicitor is not merely a mouthpiece for the client and can exercise judgment as to presenting the client’s case quickly and simply, and informing the court of any persuasive authority against the client’s case (Rule 17)  A solicitor must avoid informality with the court (Rule 18), and must speak frankly and without knowingly or recklessly misleading the court (Rule 19)  If, between hearing and judgment, a solicitor learns that their client lied or procured someone to lie to the court, forged a document or suppressed material evidence, the solicitor must seek authority from the client to disclose this to the court and may otherwise refuse to continue to act (Rule 20)  A solicitor must not claim privilege unless it is reasonably justified, or allege a fact without a proper basis (Rule 21)  A solicitor must not lead questions which intend to mislead, confuse, harass or humiliate a witness (Rule 21.8)  A solicitor must not lie to an opponent or contact the opponent directly except in certain circumstances (Rule 22)  A solicitor must not coach a witness on what they should say or that they should give false or misleading evidence (Rule 24), or confer with more than one lay witness at a time (Rule 25)  A solicitor must not make public comments on current proceedings (Rule 28)  Prosecutors must act impartially, put the evidence before the court and not seek to bias the court against the accused (Rule 29) Barristers share many of the same duties as solicitors with respect to advocacy Barristers adhere to the ‘cab rank rule’ (unique to barristers) ** Access to justice This is a duty to accept whatever brief comes to them, provided that:  the brief is within their capacity, skill and experience  they are available to do the work  the fee is acceptable  there is no relevant conflict of interest The rule is justified on the basis that it promotes access to justice Discipline of Lawyers The Legal Services Commission (LSC) is the sole body empowered under the Legal Profession Act 2007 (Qld) to initiate and prosecute disciplinary proceedings against lawyers and law practice employees – the LSC makes decisions to initiate a discipline application subject to the Discipline Application Guidelines: https://www.lsc.qld.gov.au/discipline/discipline- application-guidelines Tribunal is more serious matters  The Act authorises the LSC to make discipline applications in either of two disciplinary bodies – the Queensland Civil and Administrative Tribunal in relation to serious matters and the Legal Practice Committee in relation to less serious matters  The Act requires the LSC to publish a register (the Discipline Register) of disciplinary action taken under the Act (that is, every order of a disciplinary body or court finding a lawyer guilty of professional misconduct Most disciplinary matters against legal practitioners involve allegations of professional misconduct The legal Professions Act 2007 defines professional misconduct to include: (a) unsatisfactory professional conduct involving a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and (b) conduct, whether happening in connection with the practice of law or otherwise, that justifies a finding that the practitioner is not a fit and proper person to engage in legal practice LPC Public hearings (unless otherwise directed by the LSC) Example LSC orders:  public (or in special circumstances, private) reprimand  financial penalty of up to $10,000   do or refrain from doing something in connection with their legal practice, be managed in a stated way for a stated period, or be subject to inspection by someone nominated by his or her professional body Costs (unless ‘exceptional circumstances’) Appeals to the QCAT QCAT  The Legal Profession Act 2007 (Qld) defines ‘Professional Misconduct’ to include: (a) unsatisfactory professional conduct involving a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and (b) conduct, whether happening in connection with the practice of law or otherwise, that justifies a finding that the practitioner is not a fit and proper person to engage in legal practice The QCAT is constituted for purposes of hearing discipline applications by a Supreme Court judge  The judge is helped by a barrister or solicitor member (as the case may be) of a practitioner panel comprising barristers and solicitors who have held a practising certificate for at least five years and a member of a lay panel comprising non-lawyers who have ‘high level experience and knowledge of consumer protection, business, public administration or another relevant area’  The members of the lay and practitioner panels are appointed by the Governor in Council Public hearings (unless otherwise directed by the QCAT) Example QCAT orders:  removed from the roll (i.e. ‘struck off’)  suspended from practice or allowed to practice only subject to certain conditions  financial penalty of up to $100,000  public (or in special circumstances, private) reprimand  completion of a course of further legal education or ‘do or refrain from doing something in connection with engaging in legal practice’ Costs (unless ‘exceptional circumstances’) Appeals to the Court of Appeal Barristers’ immunity Reasons for upholding barrister immunity:  Allowing advocates to be sued would remove any sense of finality about a judgment, because every case could potentially be further appealed on the basis that a party was unhappy with their counsel’s performance  The fear of being sued would affect the way counsel conduct a case, with the possibility that counsel would take many potentially unnecessary steps to protect themselves that would add cost and time to every case  Clients could make vexatious claims against counsel Reasons for abolishing barrister immunity:  There are other remedies already available for breaches of counsel’s duties of care (for example, courts can award damages against counsel for unnecessary delays in the conduct of trials)  No other country retains such an immunity  No other profession enjoys such immunity and maintaining a special immunity for counsel, while expanding the scope of liability of every other profession, breeds contempt for our legal system  Basis of immunity is out of date  The argument that a barrister’s loyalty to the court and to their client would become problematic is unrealistic as it is hard to see how a person could succeed in proving negligence where a barrister was complying with a duty to the court  Fears of a wave of litigation by disgruntled parties have not been seen in other common law countries that have abolished the immunity, such as UK and USA, which has a particularly litigious culture