Unplugged Final - Ethics, Utilitarianism, and Justice PDF

Session 1 - what is ethics What is legal ethics - - Legal ethics refers to the moral principles and standards that govern the behaviour and conduct of legal professionals, including lawyers, paralegals, and judges. It involves understanding the ethical responsibilities and obligations inherent in...

Session 1 - what is ethics What is legal ethics - - Legal ethics refers to the moral principles and standards that govern the behaviour and conduct of legal professionals, including lawyers, paralegals, and judges. It involves understanding the ethical responsibilities and obligations inherent in the legal profession and the practice of law. Morals and ethics Summary - - while morality relates to an individual's personal beliefs about right and wrong, ethics involves the systematic and objective principles that guide behaviour within a specific profession or context ethics aims to create a standard of conduct that is applicable to all individuals within that domain, promoting fairness, integrity and accountability 7 threats to ethics 1) Death of God: This term, famously associated with the philosopher Friedrich Nietzsche, refers to the declining influence of religion and religious morality in modern society. In ethical terms, it suggests a challenge in grounding moral values and principles without a divine or religious basis, leading to a potential crisis in moral authority. 2) Relativism: This is the belief that morality is not universal and that ethical truths depend on the individuals or groups holding them. Relativism poses a threat to ethics by suggesting that there are no absolute or universally valid moral principles, which can lead to a lack of consensus on what constitutes right and wrong. 3) Egoism: In ethical terms, egoism is the theory that individual self-interest is the valid basis for all actions. This can be a threat to ethics because it promotes the idea that actions are morally acceptable if they benefit the individual, regardless of their impact on others. 4) Evolutionary Theory: Some interpretations of evolutionary theory suggest that human behaviour, including our moral decisions, is driven by evolutionary imperatives like survival and reproduction, rather than ethical reasoning. This can be seen as undermining the idea of free will and moral responsibility. 5) Determinism and Futility: Determinism is the idea that all events, including human actions, are determined by preceding events and thus inevitable. This perspective can lead to a sense of futility in ethical decision-making, as it implies that individuals have no real choice or control over their actions. 6) Unreasonable Demands: This refers to the idea that certain ethical theories or principles might demand too much from individuals, making it impractical or impossible for them to consistently act ethically. For example, a principle requiring absolute selflessness or perfection could be seen as unreasonably demanding. 7) False Consciousness: Originating in Marxist theory, this concept suggests that people's material and ideological conditions can deceive them about the true nature of their social or economic situation. In terms of ethics, it implies that individuals' understanding of what is morally right or wrong can be distorted by their socioeconomic conditions, leading to unethical decisions or actions. Session 2 - utilitarianism What is normative ethics Normative ethics is about figuring out the rules of what is right and wrong. It's like creating a guide for good and bad behaviour . Different theories Utalitariunism Utilitarianism in normative ethics, is a tradition stemming from the late 18th- and 19th- century English philosophers and economists Jeremy Bentham and John Stuart Mill according to which an action (or type of action) is - Right if it tends to promote happiness or pleasure - wrong if it tends to produce unhappiness or pain—not just for the performer of the action but also for everyone else affected by it. Session 3 - rights and deontology Immanuel kant 1724 - 1804 Definition: Deontology is the branch of ethics dealing with duty, moral obligation, and moral commitment. Deontology Kant's deontology is about following moral rules that are true no matter what, doing your duty, and treating people with respect, regardless of what outcomes your actions might lead to. Kants theory believes that some actions are always right or always wrong, no matter the context. This is different from saying something is right because it brings good results. For Kant, it's about whether the action itself is right or wrong. The Categorical Imperative is a key part of Kant's theory. This rule states that you should only do something if you'd be okay with everyone else doing it too. For example, lying is wrong because if everyone lied, trust would disappear and communication would break down. The human rule within the theory states that people are not objects that should not be used for your own benefits. The universality rule states that if u are able to do something then anyone else can do the same thing. In Kant's philosophy, the "hypothetical imperative" refers to commands that you should follow if you want to achieve a particular goal. It's different from the "categorical imperative," which is a command you should follow regardless of your desires or goals Example: "If you want X, then you should do Y." For example, "If you want to be healthy, you should exercise regularly." The action (exercising regularly) is not inherently necessary; it's only necessary if you have the goal of being healthy. Pros of the theory Moral Clarity: Kant's theory provides a clear and straightforward approach to morality. The categorical imperative offers a definitive guideline for determining right and wrong actions, which can be helpful in making moral decisions. Universalizability: The principle of universalizability ensures that moral rules apply to everyone equally. This promotes fairness and consistency in ethical judgments. Respect for Individuals: Kant's emphasis on treating people as ends in themselves (not merely as means to an end) promotes dignity and respect for individual autonomy, a cornerstone in human rights and ethical interpersonal relationships. Rational Basis for Ethics: Kant's theory is grounded in rationality, appealing to logical reasoning rather than emotions or consequences. This provides a firm and consistent foundation for ethical principles. Emphasis on Intentions: By focusing on the intention behind actions rather than their outcomes, Kant's theory values the moral integrity of the individual, recognizing the importance of good intentions in ethical behaviour. Cons of the theory Rigidity: Kant's rules are very rigid, sometimes leading to moral dilemmas where rules conflict or where strictly following a rule would lead to obviously harmful outcomes. This inflexibility can be impractical in complex real-world situations. Neglect of Outcomes: By disregarding the consequences of actions, Kant's theory can sometimes demand actions that produce harmful or undesirable outcomes, which many would find ethically problematic. Difficult Application: Determining the universally applicable maxim behind an action (as required by the categorical imperative) can be challenging and subjective, making practical application of the theory difficult. Lack of Emotion and Compassion: Kant's emphasis on duty and rationality can sometimes overlook the importance of emotions, empathy, and compassion in moral decision-making, which are integral to human experience. Overemphasis on Autonomy: While respecting autonomy is crucial, Kant's theory can overemphasise individual autonomy at the expense of recognizing the importance of community, relationships, and interdependence in ethical considerations. Session 4 - justice Justice Justice - john rawls 1921 - 2022 The Original Position and the Veil of Ignorance: Rawls asks us to imagine a hypothetical scenario called the "original position," where individuals are deciding the principles of justice for a society. In this position, they are behind a "veil of ignorance" – they don't know anything about their own personal characteristics, such as their gender, race, intelligence, or abilities, or their position in society. This veil ensures that principles are chosen fairly, without bias towards any particular position in society. Two Principles of Justice: First Principle – Equal Rights: The first principle that Rawls believes would be chosen in the original position is that each person should have equal rights to the most extensive basic liberties compatible with similar liberties for others. These liberties include freedom of speech, conscience, and the right to hold personal property. Second Principle – Social and Economic Inequalities: The second principle deals with social and economic inequalities. It has two parts: 1) Difference Principle: Social and economic inequalities should be arranged so that they benefit the least advantaged members of society. Rawls argues that a society’s economic and social inequalities should work to the advantage of those who are least well-off. 2) Fair Equality of Opportunity: Everyone should have an equal opportunity to qualify for the more privileged positions in society's institutions. Pros and cons Pros Fairness: Rawls' theory places a strong emphasis on fairness by advocating for equal basic liberties and justifiable economic inequalities that benefit the least advantaged. Impartiality: The concept of the "original position" with the veil of ignorance encourages impartial decision-making, as individuals must consider the interests of all members of society. Human Rights: Rawls' principles align with fundamental human rights, such as freedom of speech and religion, which are protected in just societies. Social Safety Nets: The theory supports welfare policies to assist those in need, ensuring a safety net for the least advantaged. Democratic Values: Rawls' ideas align with democratic principles by emphasizing the importance of equal participation and representation. Cons Feasibility: Critics argue that implementing Rawls' principles in the real world may be impractical or overly idealistic, especially when determining fair inequalities. inequality Acceptance: Some critics argue that Rawls' theory accepts more economic inequality than is ethically justifiable, as long as it benefits the least advantaged. Lack of Incentive: There are concerns that Rawls' theory might disincentivize hard work and innovation if individuals are not rewarded for their efforts. Cultural Variability: Critics contend that Rawls' theory does not account for cultural variations in how justice is defined and implemented. Overemphasis on Liberty: Some argue that Rawls' theory prioritises liberty at the expense of other important values like efficiency and economic growth. Session 5 - virtue ethics Virtue ethics - aristotle 384 - 322BC Virtue ethics Virtue ethics is a normative ethical framework that places a strong emphasis on the development of virtuous character as the core of ethical decision-making. Aristotle's virtue ethics focuses on the development of virtuous character as the basis for good living. Unlike other ethical theories that emphasise rules or consequences, virtue ethics is centred on the character and virtues of the individual. The Aim of Life - Eudaimonia: Aristotle believed that the ultimate goal of human life is 'eudaimonia,' often translated as 'happiness' or 'flourishing.' According to him, true happiness is found in living a life of virtue. Virtues and Character: Virtues are desirable qualities or traits of character that enable us to live and act rightly. They are not innate but are developed through practice and habit. Examples of virtues include courage, temperance, justice, and wisdom. The Golden Mean: Aristotle proposed the concept of the 'Golden Mean' to describe the desirable middle ground between two extremes of a trait. For example, courage is a virtue that lies between the extremes of rashness and cowardice. The virtuous person strikes a balance, acting neither excessively nor deficiently. Pros and cons of the theory Pros - Focuses on Character: It emphasises the importance of developing a good character and virtues, which is essential for overall personal development and ethical behaviour. - Practical and Holistic: Aristotle's theory is practical, focusing on finding the right balance in behaviour and decision-making, and considers the whole person, not just isolated actions. - Promotes Personal Wellbeing: The aim of achieving 'eudaimonia' or flourishing aligns personal happiness with virtuous living, suggesting that being ethical leads to a fulfilling life. - Flexible and Contextual: The theory allows for flexibility and nuance in moral decisions, understanding that different situations may call for different responses. - Encourages Moral Development: It places importance on lifelong moral education and the cultivation of virtues, encouraging individuals to continuously improve their moral character. Cons - Potential cultural bias - Lack of specific guidance in moral decision-making - Challenge of determining which virtues are essential, as they can vary across cultures and eras - Impossible to establish a universal ethical framework - May not provide clear answers to complex moral dilemmas, as it relies on the virtuous agent's judgement Session 6 - The Media's Impact on Public Ethics and Governance Session 7 - OBSTACLES TO AN ETHICS-BASED CULTURE: CORRUPTION Examples of corruption: - Public servants demanding or taking money or favours in exchange for services Politicians misusing public money or granting public jobs or contracts to their sponsors, friends and families Corporations bribing officials to get lucrative deals • Individuals or corporations evading taxes Causes and consequences of corruption causes - Lack of transparency - Low accountability - Institutional weakness Consequences - Political, social, environmental, economic costs - Erosion of trust - Undermining the rule of law - Influencing regulatory processes - Promoting bad habits in society Legal framework - Both national and international legal frameworks exist to combat corruption National laws and regulations govern the behaviour of legal professionals and institutions within a particular jurisdiction International agreements provide a framework for cooperation among countries to combat corruption on a global scale These legal frameworks create a basis for holding corrupt individuals and entities accountable for their actions Ethical standards - Legal professionals are bound by ethical standards and codes of conduct that guide their behaviour - - Professional organisations, such as bar associations, establish these standards to ensure that lawyers adhere to the highest ethical principles Emphasise honesty, integrity, confidentiality, and the duty to act in the best interests of clients Essential for preventing corruption and maintaining public trust in the legal profession Role of lawyers - - Lawyers play a pivotal role in preventing and addressing corruption in the legal field They have a duty to uphold the law and ensure justice is served Legal professionals must be vigilant in identifying and reporting corrupt practices, even if it means exposing wrongdoing within their own ranks This commitment to ethical conduct is fundamental to the integrity of the legal profession The role of legal associations - Bar councils and law societies, have a significant role in combating corruption They establish ethical standards, provide guidance, and oversee the conduct of their members Legal associations often have disciplinary processes in place to address ethical violations They also engage in educational initiatives to promote ethics and integrity within the legal profession Reporting corruption United nations conventions against corruption The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument Focus on five main areas: - preventive measures - criminalization and law enforcement - international cooperation - asset recovery / technical assistance - information exchange It covers many different forms of corruption, such as bribery, trading in influence, abuse of functions, and various acts of corruption in the private sector Transparency and accountability Simens case study Session 8 - legal and business Business ethics definition: - - Business ethics is the application of ethical values to business behaviour. It is relevant both to the conduct of individuals and to the conduct of the organisation as a whole. It applies to any and all aspects of business conduct. (Institute of Business Ethics) Rules, principles,and standards for deciding what is morally right or wrong when doing business (Cambridge Dictionary) Business ethics are principles that guide decision- making. As a leader, you’ll face many challenges in the workplace because of different interpretations of what's ethical. Situations often require navigating the “gray area,” where it’s unclear what’s right and wrong (Harvard Business School) Scope of business ethics - Human Resource Management Insider trading Marketing practices - Bribery CSR Health and safety Sales practices Tax avoidance Intellectual property Importance of business ethics - Ethical practices lead to sustainable business success Vital for corporate integrity, reputation, and long-term success Ethical behaviour can be a strategic asset Increasing consumer and stakeholder concern about ethical business practice Principles of business ethics Pros and cons of business ethics Over the past 17 years, we’ve tracked the World’s Most Ethical Companies as they outperform peers and competitors, demonstrating a link between ethical behaviour and financial performance. We call this link the Ethics Premium. Ethical leadership - It all started with the ENRON scandal (2001) (one of the largest US bankruptcy filings) Which caused the dissolution of Arthur Andersen (one of the largest accounting and consulting firms at the time) And resulted in the Sarbanes-Oxley Act (2002) (one of the largest normative and legislative reforms to financial record keeping and reporting for publicly traded companies) Definition: Leading people with integrity and ethical considerations in all business acts and decisions Characteristics: Honesty, respect, fairness, empathy, accountability... Importance: Sets the tone for organisational culture – KEY!!! Role of an ethical leader Strategies for ethical leadership Global emerging trends Session 9 - transparency governance Definition of governance Importance of governance in law and business What should drive the governance of a business - ethical vs legal Ethics: Social responsibility means conducting business ethically – even if that translates into a slightly lower Return On Investment (ROI) Profitability: Maximise profits and shareholder value within legal parameters – even if it means jumping into unethical waters Case study Legal Framework: Laws and regulations affecting Governance Statutes and Legislation: Important laws governing the sector Regulatory Bodies: E.g., SEC for business, ABA for law Compliance Requirements: How organisations ensure they are compliant Organisational Structure: Governance hierarchy in organisations Board of Directors: Responsibilities and roles Management: How they implement Governance Stakeholders: Their role in governance Board of director responsibilities Management responsibilities Types of governance - Corporate - Public Non profit organisations Global Stakeholders Internal - Owner - Employees External - Customers - Suppliers - Investors - Media - Creditors - Trade unions - Government agencies Primary stakeholders (also known as key stakeholders) have the highest level of interest in the outcome of a project because they are directly affected by the outcome. They actively contribute to a project and include top management and project leaders Secondary stakeholders also help to complete projects, but on a lower, general level. These types of stakeholders help with administrative processes, financial, and legal matters Direct stakeholders are involved with the day-to-day activities with a project. Employees can be considered direct stakeholders as their daily tasks revolve around projects at a business Indirect stakeholders pay attention to the finished project outcome rather than the process of completing it. Indirect stakeholders concern themselves with things like pricing, packaging, and availability. Customers are a type of indirect stakeholder Governance in legal firms Role of legal professions Emerging Trends in Governance Technology's Role: AI, blockchain, and data analytics in governance (e.g. Use of AI for compliance monitoring) Sustainability: The growing importance of environmental considerations (e.g. Environmental, Social, and Governance (ESG) metrics) Globalisation: The effects of a more connected world on governance frameworks (Cross-border regulations, international law, complexities of governing entities that operate globally) Session 10 - ESG, CSR Compliance What is ESG Definition: ESG stands for Environmental, Social, and Governance Three Pillars: Serve as criteria for measuring sustainability and ethical impact Brief History: Originated in late 80s; grown in importance due to investor and consumer interest Origin of ESG: - BRUNDTLAND REPORT (UN, 1987) - Gro Harlem Brundtland, Norway, three times Prime Minister - Guiding principle for long-term global development: in a balanced manner, economic development, social development and environmental protection Importance of ESG: - Investor Attention: Increasing number of investors use ESG metrics for decision-making Regulatory Landscape: Governments are enforcing ESG compliance, “soft law”, increased norm sophistication Long-term Viability: Helps companies mitigate risks and ensure long-term growth Environmental factors Climate Change: Carbon footprint, emissions targets Resource Scarcity: Efficient use of water, energy, raw materials Waste and Pollution: Waste management, air and water pollution control Environmental Case study Social factors labour Practices: Fair wages, work conditions, diversity Human Rights: Supply chain scrutiny, equal opportunity Community Impact: Philanthropy, social programs, local employment Case study Governance factors Board Structure: Board diversity, independence, expertise Executive Compensation: Alignment with performance and shareholder interests Transparency: Disclosures, ethical reporting,privacy, accountability Sustainability reporting: Frequency and quality Case study What is CSR Definition: CSR stands for Corporate Social Responsibility Historical Context: Evolved in the mid-20th century; influenced by social movements Focus Areas: Primarily social impacts of business Importance of csr: - Company Reputation: Enhances brand image and trust - Customer Loyalty: Consumers are more likely to support ethical companies - Employee Satisfaction: Higher morale and retention rates Key areas of csr: - Philanthropy: Charitable giving, community programs - Labour: Fair labour practices - Human resources: Diversity and inclusion ESG/CSR ESG metrics and framework Key Performance Indicators (KPIs): Emission levels, energy efficiency Reporting frameworks: - GRI (Global Reporting Initiative) EU - SASB (Sustainability Accounting Standards Board) US - TCFD (Task Force on Climate-related Financial Disclosures) Over 2k companies, 88 countries Benchmarking: Comparing against industry norms CSR metrics Community Outreach KPIs: - Volunteer hours - Funds raised Employee Engagement: - Surveys (employee satisfaction) - Participation in CSR initiatives External Audits: - Validation from third-party organisations Current ESG/CSR trends Compliance Definition: Compliance is the process of ensuring that organizations are following prescribed laws, rules, and guidelines (both internal and external) The term is broad and applies across sectors Significance: Compliance is a foundational concept in law that intersects with the fields of - Ethics - risk management and governance Corporate compliance - - It involves the practices, procedures, and policies that a company implements to ensure it operates within the boundaries set by governmental laws and internal policies Aimed at limiting a corporation’s risk exposure, safeguarding its reputation, and enhancing overall operational efficiency through adherence to laws, regulations, and internal controls Core elements, Programs Legal Framework Elements of a compliance model Organisational Manual: This is the document that describes the functions that the different bodies of a company have in the operation of the model Procedures Manual: This is an inventory of the procedures and policies that underpin Body Responsible For The the model: Apart from the Compliance Officer, there is always a body in the Company endowed with autonomous powers of initiative and control over the model, at the top of the organisation Risk map: This is a matrix in which the company’s activities are crossreferenced with the infractions that may be incurred and contains an assessment of: - inherent risk (the risk that the company has due to its activity) and - residual risk (the risk that remains once the controls have been applied) Controls map: Another matrix that describes the controls associated with each risk: - It specifies who is the owner of each control - Which is the department/person who must operate it Public compliance & the principles/legal framework Public Compliance is about ensuring that governmental bodies operate within the parameters set by the law. The aim is to safeguard the public's trust and ensure efficient governance The principles of public compliance Transparency: Ensuring that actions and decision-making processes are open to public scrutiny Accountability: The obligation to explain actions taken or decisions made Ethical Conduct: Adherence to moral principles like fairness and integrity Legal framework for public compliance Constitutional Provisions: These establish the baseline for compliance in the public sector Statutory Regulations: Specific laws and codes that direct actions within particular public sectors, such as education or healthcare Corporate vs public compliance Criminal compliance - - Criminal compliance is a part of the whole compliance universe But, in Spain, it was a trigger for companies to start implementing compliance models In 2010, the Criminal Liability of Legal Entities was introduced into the Penal Code) which imposes penalties on companies when they do not have an adequate control model, and their managers or employees commit a crime In 2015, the Penal Code was amended to introduce a regulation of the essential elements of the model - Since then, criminal compliance in Spain has become the foundation on which compliance models are built. The basic regulation is found in article 31 bis of the Penal Code Norms about compliance in spain Trends in compliance Trends in Corporate Compliance - Technological Tools: Advances like AI and blockchain are helping in real-time compliance monitoring - Globalisation: As businesses operate across borders, international laws and regulations add another layer of complexity to compliance Trends in Public Compliance - Data Analytics: Increasingly used for performance monitoring and auditing - Public Engagement: Growing trend toward transparency, including public consultation in decision-making processes to ensure compliance with societal expectations Bad compliance - Wells fargo Overview: Wells Fargo faced a significant scandal in 2016 involving the opening of fraudulent accounts without customer consent Flaws: 1. Leadership Failure: The top management was either unaware or ignored the fraudulent activities, signalling a failure in compliance oversight 2. Pressure Culture: Employees were pressured to meet unrealistic sales targets, leading to unethical behaviour. 3. Ineffective Monitoring: Systems Failed to Flag The Opening Of Millions Of fraudulent accounts 4. Whistleblower Retaliation: Employees Who Tried To Report The Unethical activities faced retaliation, indicating a flawed compliance culture Results: - Paid billions in fines - Suffered immense reputational damage Good compliance - Johnson & Johnson Overview: Johnson & Johnson, a multinational healthcare company, is often cited for its strong ethical culture and robust compliance program Key Features: 1. Credo Values: A credo document that outlines the company's commitment to social responsibility, ethics, and compliance 2. Oversight Boards: Internal and external boards to review compliance efforts and recommend improvements 3. Employee Training: Regular,in-depth training programs compliance issues like patient safety, data protection, and anti-bribery 4. Open Reporting: Channels For Employees To Safely Report Concerns, ensuring that issues are addressed promptly Results: - Managed to navigate various regulatory landscapes successfully. - Earned respect for its ethical stance Session 11 - conflicts of interest Legal ethics - - Being able to act ‘in the best interests of each client’ is at the core of legal professional conduct Legal ethics broadly refer to the unique responsibilities of lawyers and the legal system given the important role and influence they have in society Because of their close involvement in the administration of law, lawyers are subject to special standards, regulation, and liability Legal ethics refers mostly to rules of professional conduct lawyers must follow by law such as conflicts of interests, legal privilege and client confidentiality - Legal ethics can also refer to the discussion on broader moral principles that societies place on lawyers that may not be legally required (ethical v. legal) Legal ethics also apply to norms lawyers must follow that are NOT required by law - Model rules and regulations should be seen as a minimum to be met by lawyers Balance between client protection or representation and lawyers’ interests is a long- fought battle (not yet won! Legal ethics involves discussion of the ideals of lawyer professional and human conduct, on top of laws and regulations What is a conflict of interest Definition: - A conflict of interest occurs when a lawyer’s personal or financial interests interfere with their ability to represent their client’s interests - It also happens when a lawyer represents multiple clients whose interests conflict with each other Managing conflict of interests Types of conflicts of interest (among others) - Direct: where a lawyer represents clients with opposing interests in the same legal matter Financial: where a lawyer stands to gain (or lose) financially from a client Personal: where a lawyer has a personal or business relationship with a client that could affect their professional judgement Secondary: where a lawyer’s loyalty to a current or former client could compromise their representation of a new client in a related matter Examples of conflicts of interest Direct: where a lawyer represents clients with opposing interests in the same legal matter E.G A divorce where the firm is asked to act for both husband and wife financial: where a lawyer stands to gain financially from a client - Change in value of land or shares that you own, or the turnover of a business you are involved in - Commingle: to combine a client’s funds or properties into a common fund or stock with your own assets - Loan forgiveness Personal: where a lawyer has a personal or business relationship with a client that could affect their professional judgement - The client offers to give you a very large monetary gift or even put you in their Will - Representing a family member in court - In dealing with family and friends, your personal relationship may impact on your ability to advise or deliver a judgement to them, or people affiliated with them, in an independent and fair manner Secondary: where a lawyer’s loyalty to a current or former client could compromise their representation of a new client in a related matter - Representing a new, very profitable client (that can even make your annual budget) against a former client Conflict of interest prevention mechanisms The larger the law firm, the more conflicts of interest it will have and the greater the need to focus on strict procedures to deal with them Internal training programs - On boarding Training Sessions - Continuing Legal Education (CLE) - Online Training Modules (a favourite!) - Mentorship Programs - Policy Manuals and Handbooks - Regular Updates and Bulletins - Feedback and Reporting Systems Internal procedures Example Penalties for preventing conflicts of interests - Fines - Suspension - Disbarment Session 12 - Legal privilege Definition: Legal privilege protects confidential communications between individuals and their legal advisors from being disclosed in legal proceedings. Importance of legal privilege - - It protects clients’ rights, as part of the broader rights to privacy and fair legal representation The protection is not always absolute and varies depending on jurisdiction and type Aids in legal strategy development, without fear of disclosing tactics to opponents Encourages ethical standards, as it emphasises the lawyers’ duty to protect client confidences HOWEVER Striking the right balance between confidentiality and disclosure is crucial in upholding both individual and societal privacy interests Types of legal privilege Under English and US law: Communications between lawyer and client - attorney-client privilege (US law) - legal advice privilege (English law) Documents prepared for litigation - work-product doctrine (US law ) - litigation privilege (English law) - There are strict rules for when each of these types of privilege apply Under spanish law: - Article. 22 EGAE: The duty and right of professional secrecy of the legal professional includes all facts, communications, data, information, documents and proposals that, as a legal professional, he or she has known, issued or received in his or her professional practice - Conversations held by legal professionals with their clients, opponents or their legal professionals, in person or by any telephone or telematic means, may only be recorded with the prior warning and consent of all participants, remaining in all cases case protected by professional secrecy Penalities Penalties range from a basic reprimand, to fines, disbarment and even prison time In SPAIN: - Article 546.2 Organic Law 6/1985 of 1 June 1985 on the Judiciary - Lawyers (...) are subject in the exercise of their profession to civil, criminal and disciplinary liability, as appropriate Article 199 of the Penal Code: - 2. The professional who, in breach of his obligation of secrecy or confidentiality, divulges the secrets of another person, will be punished with a prison sentence of one to four years, a fine of twelve to twenty-four months and special disqualification from said profession for a period of two to six years Limitations - Main one: iniquity exception No legal privilege arises if a lawyer’s assistance is sought to further a crime, fraud or equivalent conduct When the client waives the privilege, expressly or by implication When there are extreme circumstances that warrant it Confidentiality: Refers to the obligation to keep certain information private and not share it without proper authorization or consent - Seeks to protect sensitive information Disclosure: Refers to the act of releasing or sharing information, often in a formal setting such as legal proceedings or regulatory filings - Aims at providing necessary information for transparency, justice, or regulatory compliance Tension between legal privilege and disclosure - Tension is evident when privileged information might also be crucial evidence in a legal case Courts must weigh the societal and ethical considerations of maintaining the confidentiality offered by legal privilege against the need for full disclosure to ensure justice is served Ethical considerations