Law
What is The Adversary System and the Search for Justice and legal ethical?
An adversary system is one in which the parties involved in a controversy collect and submit their evidence, invite and cross examine witnesses and present their arguments under the guidance of certain rules, process, and control. Throughout the proceeding, the jury or the judge, who acts as the fact finder, is required to remain impartial. The adversary system has elicited several criticisms over the years. Some of these criticisms revolved around its ability to serve justice by seeking the ultimate truth or resolving controversies. Concerns have also been raised about the capability of the system to offer equal legal services to people with limited access to resources as it does to rich people. Besides, since this system is highly focused on winning, is there a likelihood that it encourages manipulation, deception, and chicanery?
A perfect example of this system in practice was the O.J. Simpson trail case of 1995. The professional footballer, actor, and sportscaster was being tried for the murder of his former wife and her acquaintance. This case provided a perfect opportunity to analyze the adversary system in practice. Indeed, many Americans were left wondering if the operation of the case was concerned truth or justice. The case, which was beamed lived exposed America’s criminal justice system to public scrutiny for the first time in history. Both the defense attorneys and prosecutors were relentlessly engaged in seemingly endless arguments over trialities. Both sides were involved in acrimonious name calling sessions as they attempted to discredit their opponent’s witnesses and evidence. Many viewers, particularly those watching court proceedings for the first time, found such actions and utterances strange and disturbing.
The trials of two wealthy brothers, Eric and Lyle Menendez in 1994 provided another example adversary system. The duo had been accused of murdering their parents but their initial trials resulted in hung juries. Many Americans were left angry and bewildered at the adversary system that proved to be incapable of convicting confessed murderers. In this system, defense attorneys hold firm the constitutional provision that an accused is innocent until proven guilty in a court of law. This means that the innocent can only be protected if the guilty is occasionally protected as well. Attorneys are beholden to contest any evidence presented against their clients. They will do so no matter the cost, even if it means attacking the character of the witness or the victim or even challenging the police. It is, thus, their duty to use whatever ethical or legal means within their power to win an exoneration for their clients.
The adversary system is often faulted as being cumbersome and slow. Most of the times, it is beyond the powers of the judge to expedite a trial. The evidential and procedural rules that characterize this system also contribute in slowing down the process. The system is also defined by broad availability of appellate review, a phenomenon that further slows down the final determination of a case. Proponents of this system have always maintained an argument that its cumbersome and strict methodological nature are essential as they significantly contribute towards the protection of individual rights. However, any legal system that places a higher premium on securing an acquittal for the accused than on seeking the truth should be treated as unethical. In this adversary system, lawyers seemed to spend their time in evading the truth instead of finding it.
What is The Authorized and Unauthorized Practice of Law?
The practice of law involves applying judgment and legal principles with regard to the circumstances and objectives of a person who is in need to the skill or knowledge of another person with a law training. A person offering counsel or advice to other person with regards to their legal responsibilities or rights is deemed to be practicing law. A law practitioner also selects and drafts legal agreements and documents that influence a person’s legal rights. In many jurisdictions, not every person can practice law. The practice is only left to those authorized by the highest jurisdiction court. However, the authority to practice law changes from one jurisdiction to the next. In some jurisdictions, only attorneys licensed with their respective professional bodies are allowed to practice law. This means that non attorneys who are not licensed to practice there are forbidden by law from doing so.
A lawyer is supposed to practice only within a jurisdiction that he is authorized to practice. However, this is not entirely the case in many instances. Many people have been involved in unauthorized practices over the years. By definition, unauthorized practice of law refers to the act of engaging in a lawyer’s work for monetary gains without observing the due process. In the state of California for instance, the only persons allowed to practice law are lawyers that have been duly licensed under the umbrella of the State Bar Association. Therefore, the Business & Professions Code 6125 considers the unauthorized practice of law as a crime that is punishable by a jail term of up to 12 months together with $1000 fine.
A lawyer who represents himself in a trial case that he is a defendant is guilty of unauthorized practice of law as well. Concerns have, however, been raised about the practicality of some provisions of unauthorized practice of law. For instance, if a law school graduate makes a deal to draft legal documents for a friend wishing to start a company in exchange for a three months accommodation stands accused of practicing law without authorization. This brings to question the practicality of the provision, which seems to bar trained lawyers from practicing privately. The provision also prevents a paralegal working in a busy law firm from drafting a litigation to plead for a litigant who might be busy on other matters. This paralegal is prevented from practicing law because of the dictates of unauthorized practice of law.
Sometimes the membership of a legal body held by a lawyer can be revoked due to various reasons. If at the time of such a revocation, the lawyer was involved in drafting estate plans or wills for his clients, he is expected to stop forthwith and desist from seeing those clients for the same matters again. Indeed, this throws a significant practice of law into a limbo. It will be difficult for the clients to find another lawyer to again confide in regarding such sensitive matters as wills. Based on these facts, the unauthorized practice of law should be reviewed to allow it align with the demands and circumstances of the time.
The Relationship between Lawyer and Client: Client Autonomy and the Lawyer’s Conscience?
It is the opinion of many that the most basic function of a lawyer is to ensure that his client’s autonomy is enhanced. The lawyer ensures the provision of this by offering relevant information that maximizes the understanding of his client of the circumstances at hand and minimizes the influence of his own personal views on the client. This view is referred to as the informed consent or client autonomy. To guide their client’s representation, lawyers often apply their moral concerns, an approach that can severely undermine the autonomy of their client. Nonetheless, lawyers have a moral obligation to prevent their clients from chasing after their immoral goals. This presents lawyers practicing law with two dilemmas: they must make efforts to ease the autonomy of their clients and they must also apply their power to prevent their clients from pushing immoral goals. These are two conflicting assumptions that have often created tension within the legal profession.
The assumptions leave lawyers perplexed whether their powers are limited to their client’s autonomy. Nonetheless, ethically, this confusion is limited if the lawyer decides to limit the autonomy of his client in a situation where the morality of the client conflicts with the moral code persuade by the attorney. This is a general rule, whose consequences are predictable as well. There are three models of ethics that prevail within the law practice. These include the lawyer as a friend, the lawyer as the hired gun and the lawyer as the stateman. These models usually encourage lawyers to subordinate the interests of their clients and instead use their moral judgements in representing their clients.
In a lawyer-client relationship, there exists numerous grounds to privilege the autonomy of the client. Indeed, it has often been argued that the original objective of an attorney is to enable his client to act as a legal actor with utmost autonomy. Other arguments also advance an opinion that the Constitution demands of a lawyer to ease the autonomy of his client. According to these arguments, the provisions from the constitution that secures the rights of an individual would have little meaning if the person does not enjoy the services of a legal professional to assist him exercise his rights. By its very constitution, the adversary system provides a perfect platform where these competing interests conflict. Since this system forces clients to depend on legal professional who are not keen on ensuring the creation of legal claims that provide untainted expression to the views of their clients, it cannot be said to function efficiently. It must also be remembered that, according to the Model Code of Professional Responsibility, the use of zealous advocacy by attorneys is encouraged. This suggest that the attorney aggressively help their clients to independently pursue their selected goals.
Although the premium placed on the client autonomy is buttressed by several reasons, some arguments have emerged in favor of a possibility of subordinating it to other more significant issues like the responsibilities of lawyers to third parties, the interests of lawyers in their autonomy and social justice. Moreover, the existing models of ethics fail to successfully the autonomy of clients. This means that client autonomy is not mandatory, and might not be a realistic value as well. Therefore, to strike a balance between the conscience of a lawyer and his client’s autonomy, there are a lot of things that need to be considered. Hence, it is not wise to automatically conclude that client autonomy should supersede a lawyer’s conscience.
The Relationship between Lawyer and Client: Allocation of Authority?
A relationship between a lawyer and a client begins at the point when the client approaches the lawyer to seek his or her legal counsel. The scope of this relationship depends on the terms and condition outlined and agreed upon by the two. The relationship usually comes to an end after the resolution of the case. The exact place where the authority of a defendant over his trial ends and that of the defense counsel start has always remained a foggy constitutional law area. The U.S Supreme Court and state supreme courts have always grappled with the idea of whether a lawyer is allowed to admit the guilt of his client without the consent of the said client. This question has always arisen when dealing with capital vases where trial bifurcation incentivizes strategies for concession.
In a Supreme Court hearing of Florida v. Nixon, it was held that a defense attorney could admit the guilt of a client in the event that the expression of consent by the client is not required or if the client is not responding. However, in the same case, the Supreme Court failed to answer the corollary question of whether a defense counsel can concede guilt in a situation where there is an explicit objection from her client. In the McCoy v. Louisiana case, however, the Supreme Court held that in the event that a counsel admits guilt over the express objections of the defendant, then the defendant shall have violated the Sixth Amendment rights of the defendant.
Principally, McCoy successfully championed for the autonomy of the defendant. Practically, however, McCoy does not protect the rights of the defendant as it may seem superficially. After McCoy was found guilty of murdering three members of his family, he was sentenced to death by a Louisiana Court (Harvard Law Review, 2018). This sentence was reached after his lawyer Larry English, admitted guilt on his behalf despite the client’s protests. When the matter reached the US Supreme Court, the Court ruled that McCoy’s rights as enshrined in the Sixth Amendment were violated since the lower courts allowed English to admit guilt despite the fact that the client expressly objected the same. This is despite the fact that English was trying to use this as a strategy to let his client escape the impending death penalty.
Defendants are constitutionally allowed by the law to defend themselves. However, in the event that they hire a counsel to do so on their behalf, they do not concede all control over their cases. The defendant always has the last word over fundamental choices affecting his case. Although admitting guilt might be one of the best ways to evade the death penalty, it is within a defendant’s prerogative to prioritize other issues such as avoiding the condemnation associated with the concession of responsibility for the death of family members or avoiding spending the rest of his life in prison.
In the two cases mentioned above, one apparent fact emerges: the issue of approval of the concession strategy advanced by the defendant’s lawyer. In the Nixon’s case, the client was considered unresponsive, and hence could not verbally protest or approve the concession strategy of the counsel. On the other hand, McCoy was unambiguous and intransigent in his objection of concession strategy of the lawyer. In this case, the lawyer has no authority to allocate an admission of guilt to his client if the client is in the right state of mind and physical health to deliver his stand on the case.
The Duties of Competence and Zeal
The duty of zeal demands of a lawyer everything that is reasonably within his powers to assist his client attain the goals that were agreed upon at the beginning of the representation. On the other hand, the duty of competence requires the lawyer representing the accused to be competent, thorough, prepared, skillful, and posses the required legal knowledge to achieve his goals. The skills acquired by legal professionals from their institutions of training are expected to allow them to generally assess a problem at hand, do research on the law and apply facts to argue out their cases. However, there have been cases where lawyers have entered into trouble with ethics authorities and their clients because they took up cases that they were not capable to handle. This could be because they lack enough experience or the required training on that area. Some might also just be overwhelmed with a lot of work.
Most lawyers have specialties in particular areas of law. For instance, a constitutional lawyer is best suited to handle constitutional cases. This means that the lawyer might be overwhelmed if he decides to take on a complex criminal case that requires the expertise and training of a criminal lawyer. The specialized nature of a case as well as its relative complexity is one of the factors that determine the competence of a lawyer to handle a case. In patent law for example, the U.S Patent and Trademark Office (PTO) demands of a lawyer to have excelled in Patent Bar exam besides the state bar exam. Lawyers involved in this type of prosecution are, therefore, expected to be drawn from scientific backgrounds to help them assess and explain technical issues.
A case in point is that of a lawyer who agrees to prosecute a patent law that involves a new type of filter for marine aquarium. Although the lawyer believes that she can handle the complexities of the case, she has not training in marine science. Her senior law school training was majorly on intellectual property although she has read widely on different topics. Without the appropriate certification, however, the lawyer will not be allowed by the PTO to prosecute the patent before a US court. Her client is also at the risk of losing the case due to incompetency of the lawyer. The best thing that the lawyer could have done was to advise her client to find another lawyer with a relevant training on the same.
Zeal advocacy demands of lawyers to zealously advocate on behalf of their clients. The lawyer must do everything that is reasonably possible to help his client win the case. However, this does not include unnecessarily harming his adversaries or third parties in the process. In a divorce case filed by a wife against her estranged husband, the latter seeks the services of a lawyer, who zealously exploits the possible areas of weakness of the opponent’s case. He uses the tactic of constant and unrelenting motion barrage filings in order to drag the case for years. The lawyer has essentially gained an upper hand in the case but left the wife feeling miserable. She is going to lose in the distribution of the assets she co-owned by the husband. This case amounts to overzealous representation, which is a danger to the common law aspects.
The Limits of Zeal: Frivolous Arguments and The Duty of Confidentiality?
The relationship between a lawyer and a client is anchored on the law of agency since lawyers act as clients’ agents. As an agent, therefore, a lawyer is bound to their clients by fiduciary obligations. It is an ethical duty to protect the privilege between a lawyer and his client. Incidentally, both the ethical duty of zealous representation and ethical duty of confidentiality requires a lawyer to vehemently guard privileged information from any attempt to force or coerce its disclosure. However, there are ethical limits to the duty though there is no much emphasis placed around it. Lawyers, thus, have unlimited ethical duty to shield privileged information from forceful disclosure. Many lawyers indeed believe that it is their ethical obligation to vigorously protect privilege the same way they protect criminal defenders. Based on this perspective, it is apparent that a a privilege claim and a not guilty claim have the same level of frivolousness.
Such conduct emanates from a consideration that the adversity system offers opponents with a fair chance to challenge the privilege claim. This assumption has often produced an “improper assertion of a claim privilege,” which is a civil discovery recurring problem. The ultra-zealous posture that is always the modus operanda of most criminal defense lawyer is not supported by either the systematic privilege ligation realities or the law of privilege. In most criminal cases. The legal innocence foundation offers a solid foundation for the presumptively ethics of a client pleading not guilty. Conversely, the legal burdens that characterize the provision of privileges are in contrast with to the presumptively privilege claiming practice.
When it comes to evidence, this presumption favors the compulsion in revealing the relevant evidence in order to prove that information at hand meets the various legal privileges test. Therefore, in a law matter, it is not impossible to make a frivolous privilege claim. Moreover, courts that experience such claims always have numerous sanctions that can be imposed on respective lawyers and their clients. This is based on the fact that such frivolous privilege claims often create unnecessary costs in litigation however successful they can be unmasked. The claims are not only suffered by the clients and their opponents, but also eats up into the scarce resources of the judiciary.
Despite the ethical responsibility that lawyers have to zealously defend their clients, zeal has its limitations. The lawyer is expected to act ethically, and refrain from harassing his or her opponents. Thus, while strategizing on any case, the lawyer must strike some balance between what is reasonable against the effects on the involved parties and what can possibly e achieved within the confines of law. For instance, cases involving domestic relationships require some degree of sensibilities that are not there in corporate security cases. Hence, a lawyer in a domestic relations case needs to be more careful in ensuring that her zeal does not leave negative impacts on the innocent victims such as children in a divorce proceeding. Indeed, any form of victory in domestic relations cases is a testament to sad realities of the zeal of law.
Exceptions to Confidentiality, Counselling Clients about Crimes and The Perjury Trilemma
Confidentiality is the cornerstone of lawyer client relationship as well as other professional bodies such as psychotherapy. By definition, confidentiality refers to restrictions on the volunteering a privileged information outside the setting of a courtroom. Irrespective of where it is applied, it has both legal and ethical connotations. A lawyer is forbidden from revealing a confidential information he has about his client to a third party. However, there are certain circumstances where this can be exempted. Exceptions to confidentiality is most times governed by the principle of “duty to protect.” The common example of exceptions of confidentiality include reporting abuse meted on a child, a dependent or an elder (Lynn et al., 2016). Other exception to confidentiality circumstances include when either of the parties involved in a case seeks the arbitration route.
The inability of defense lawyers to prevent their clients from making a testimony presents a rather complex dilemma for the courts, lawyers and the criminal justice system as well. The appropriate response by lawyers to the intent of a client to present a testimony that the lawyer reasonably believes, or suspects, or is aware to be false, often triggers intense debates in courts of law. In many cases, this presents serious challenges to the principle of confidentiality between a lawyer and his client. It also interferes with the efforts of the lawyer to cancel his client.
Questions have been asked about the legality of presenting a perjured testimony. According to Freedman, this is a perplexing question though he maintains that the act is legal. He argues that a lawyer is an officer of the court in pursuit of truth. Therefore, the lawyer is obligated to act in certain way when presented with a perjured testimony. However, it must be noted that most jurisdictions have adversary systems of justice, which tend to impose some conflicting obligations to the said lawyer. First, according to the ABA Standards Relating to the Defense Function, a lawyer is required to establish all facts related to the accused for the simple reason that the attorney cannot dutifully perform his function without a proper knowledge of the truth. Second, the lawyer is strictly obligated to hold confidence the disclosures that the client has made to him in their professional relationship course. Indeed, the establishment of confidence and trust between the lawyer and his client supersedes everything in the practice of law. This is the only way through which the client will have confidence and trust to fully confide in the lawyer. Similarly, it will appropriately empower the lawyer to get the full facts of the case to prepare for an appropriate defense.
Based on the above responsibilities of the lawyer, it apparently emerges that a conscientious lawyer operates in a trilemma environment. This implies that the lawyer is expected to be aware of everything, ensures that this knowledge is kept in confidence but to reveal it to the court as well. Another complex thing about trilemma is what the lawyer should do when the perjury knowledge comes after it is committed instead of before. However, lawyers are guided by the provisions of Code of Professional Responsibility that advises them to promptly persuade their clients to rectify a perpetuated crime. In the event that the client refuses to heed, the lawyer will be forced to reveal this crime to a tribunal or the person affected. Indeed, this is an ambiguous position that tends to favor disclosure by the lawyer.
What Does the Attorney Really Know?
In every case that a lawyer handles, it is expected that his client provides the events and facts about their particular cases. For the lawyer to effectively handle the matter, he must know significant details about the case. This is the only way that the lawyer will be able to effectively advice the client on the theories of defense and the trial viability. Lawyers defend even highly publicized criminal and scoundrel cases, and sometimes succeed in securing an acquittal for the accused. In some cases, the public consider the suspects as obviously guilty of the accusations that have been labeled against them but still, they are vigorously defended and acquitted by their attorneys.
When David Westerfield was accused and convicted of murdering a seven-year-old girl in California, he was successfully defended by attorney Stephen Feldman. It is such issues that continue to raise the fundamental question of what really does a lawyer know. However, despite all these, it is not the duty of a lawyer to decide or know a suspect’s guilt. His duty is to vigorously defend a suspect against the crime in which he is accused. The lawyer knows that his job is to prove beyond reasonable doubt that a suspect is has committed the charges against him.
The term “beyond a reasonable doubt” is often used to make it difficult to convict. This pegged on the concept that an accused is “innocent until proven guilty.” From this perspective, it is apparent to a lawyer that the government cannot deprive any citizen of his life, property and liberty until such a time that it has determined that the accused has a clear legal guilt. Hence, the lawyer is aware that the burden of proof is put upon the prosecutor. This implies that at the point of trial, the lawyer puts a lot of efforts to prove that his client is not guilty of the charges brought against him. Failing to prove his client’s innocence will most likely lead to his loss.
While a suspect can look guilty in the eyes of the public, the court process involves determining the exact nature of his guilt. A lawyer knows that there are two types of guilt before a court of law: “Legal Guilt” and “Factual Guilt”. Courts do not discuss the “factual guilt” issue, which entails debating whether the accused is actually guilty or not. Whatever discussions that takes place inside a courtroom is the “legal guilt” issue. In this issue, the lawyer is aware that the burden is on the prosecution to provide sufficient evidence to prove that the charges presented against an accused are “beyond a reasonable doubt.” This explains why most criminal lawyers will not bother themselves by asking the accused whether he is guilty or not. Indeed, the direct answer to this question has no any relevance to the trial process. Incidentally, lawyers are also aware that it is not their duty to find out whether someone is guilty or not. Instead, the job of a lawyer is to put up a fair case in defending a client. From the structure of the legal system, it is the duty of the jury and the judges to determine guilt, not the lawyers.
Conflicts of Interest
The relationship between a lawyer and a client can be affected by different forms of conflict of interests that are spelt out in the Code of Professional Conduct. A lawyer is, hence, prohibited from acting against a former client in a related or in the same matter. He is also forbidden from acting in favor of both sides in a case where both parties have adverse interests. It is also not allowed accepted for the lawyer to act in a case where his personal interests risk interfering with his ability to serve the client as required. This scenario of conflict of interest is best exemplified in 1988 case of Aerojet Properties, Inc. v. State. In this case, the claimant secured the services of a law firm to recover its unpaid rent. Three years later, Sandra Lynn Baur instituted claims for compensation due to the damages that she got as a result of injuries she sustained from an accident while undergoing her duties as a children instructor. The premise where the day care facility was located belonged to the State. Hence, Sandra was keen on getting a compensation from the State because it was the one that operated the building. However, there was a twist in the case when the insurance carrier decided to seek the services of Carter Conboy law firm to defend the State in the hearing.
Incidentally, this same law firm had defended the State three years ago over unpaid rent claims by a claimant. The Court of Claims indeed ruled against the representation of the State by the law firm because of the alleged conflict of interest. Although the matter then proceeded to the Court of Appeal, the bone of contention had already been established. From this case, it emerges that a conflict of interest even in situations where direct adverseness does not exist (Casetext, 1962). As long as there is a substantial risk that the ability of the law firm or lawyer to carry out, consider or even recommend an appropriate course of action on behalf of his client, will be limited because the lawyer has other interests and responsibilities in the case.
In the Aerojet Properties, Inc. v. State case, the judge’s ruling was based on Section 3.4-10 of the Code, which states that a lawyer or a law firm in this matter that has acted for a client before should recuse itself when a matter involving the same client and related to the case arises again in future. This section was created to avoid such cases where a lawyer might be tempted to breach confidentiality rules. It must, however, be noted that the Appeal Court threw out the case and ruled that the law firm did not have any conflict of interest in the case. This is due to the lack of any significant nexus that existed between the three-year different lawsuits.
Forming and Ending the Attorney/Client Relationship and Advertising and Solicitation Rules
The relationship between an attorney and a client comes into being at the time that an individual approaches a lawyer and manifests his intent of obtaining legal services from the lawyer. The lawyer can either consent to offering the requested legal services or is reasonably aware that the individual depends on the lawyer for the provision of the services. The advent of the digital era has thrown some confusion on the exact time that this relationship should be created. This is in view of the fact that clients are increasingly approaching lawyers through online platforms for legal information or legal advice. However, it should be apparent to the parties that the attorney client relationship should begin immediately the lawyer begins offering legal advice to the client.
According to the ABA, legal advice refers to the recommendations that are customized to the distinct facts of the circumstances of a particular person. This should not be confused with the static or general legal knowledge. It is also vital to consider the fact that a lawyer-client relationship might be formed unknowingly if the client chooses to rely on what he believes to be the reasonable legal advice from a post he sees on social media account belonging to a legal practitioner. Moreover, a person who engages in a discussion with an attorney with the intention of forming a lawyer-client relationship with him regarding a particular matter is deemed to be a prospective client. Therefore, lawyers are advised to use generalized terms when using social media in addition to accompanying their posts with disclaimers clarifying that whatever the interactions that they have on social media should not be construed as a lawyer-client relationship. This will help in informing the social media users and rebutting any belief that he might have on the post.
Under the Professional Conduct Rules for lawyers, an advertisement refers to a private or public communication that is made on behalf or by a law firm or a lawyer about the law firm or lawyer services for the primary purpose of retaining the law firm or the lawyer. Communication to other lawyers or current clients are excepted from this. On the other hand, a solicitation can be defined as a form of advertisement instituted on behalf of or by a law firm or a lawyer and targeted at or directed to a particular group of recipients or a specific recipient or their legal representatives or members of their families. The primary purpose of solicitation is to retain the law firm or the lawyer as well as the pecuniary gain, which is a significant motive.
From these definitions, the ABA allows lawyers to advertise but under certain ethical obligation and advertising rules. The ABA specifies that a lawyer or a law firm can use any platform to disseminate information about their services. However, there are rules that limit them on the extent of information that they are allowed to share. They are forbidden from stating that they are specialists in particular areas of practice if they are not accredited by the ABA in their respective districts. The rules of advertisements also forbid lawyers from making misleading or false advertisements, particularly by claiming that they offer services that they do not actually do.
The Structure of Professional Discipline and Ethics for Corporation Lawyers
Corporate lawyers are required by law to make deliberate efforts of ensuring that they conform with the ethical rules of the practice of law. In the Evans v. Artek Systems Corp case, it emerged that sometimes it is might escape the attention of an attorney to reveal his client’s confidence, an action that could disadvantage the client (Casetext, n.d). According to the Code of Professional Responsibility, an attorney might be disqualified from representing a client in specific cases as a way of ensuring that this principle is strictly adhered to. There are three grounds that can necessitate this disqualification. First, if the counsel of the adverse party had represented the moving party before. Second, if the subject matter has a substantial relationship with the prior representation of the moving party as well as the issues detailed in the current lawsuit. Third, if the lawyer in whose disqualification is being sought is deemed to have accessed to privileged information that is relevant to the prior representation course.
According to the Board of Education of the City of New York v. Nyquist case, the disqualification rule is primarily intended at preserving the adversary process’ integrity. Nonetheless, the disqualification of a counsel if not a simple thing; there must be ahigh proof standard on the part of the person who seeks to undertake such an exercise. This is based on the fact that matters of disqualification should be solicitous of the rights of the client to freely choose who to represent him in a case. However, according to the Government of India v. Cook Industries Inc. case, there should be an equilibrium between this right and the requirement of maintaining the profession’s highest standards.
A corporate attorney must act in accordance with the corporate entity’s interests, be it a law firm or an inhouse lawyer that offers counsel to the organization. Since a corporate client’s client is a corporation, he must hold himself to the highest standards of that organization. The ABA Code, Ethical Consideration 5-18 specifies that a corporate lawyer may not serve the corporation in certain matters and then proceed to represent a complaint in another suite against it. Neither can it allow its offers to do the same in a matter that is substantially related. That was the reasoning of the court in the Hall v. A Corp and affirming Doe v. A Corp cases.
Nonetheless, ABA Com. on Ethics and Professional Responsibility, Code of Professional Responsibility has a caveat on this, particularly in a situation where there exist organizational conflicts rendering them unable to provide a fair representation to all factions. Indeed, such an act would amount to representing opposing factions. In such a case any member of the board of directors or management has the right to ask for the advice of a lawyer who does not provide representation of the firm as an entity. However, the lawyer must represent the said member in his individual capacity or the side where the individual belongs. This way, the individual member of the board of directors or management does not essentially create a relationship between himself and the consulted lawyer and the unique identity of the corporation.
Prosecutorial Ethics and judicial ethics
The integrity to any legal system is significant for it restore public confidence in the judiciary. The rule of law will indeed lose its meaning and significance if the public does not have confidence in the criminal justice system. In many jurisdictions, the prosecutor is always seen as the most common face of the criminal justice system. This, therefore, implies that if the prosecutor appears to be behaving in an improper manner, the trust and confidence that the public has on their criminal justice system is eroded. The duty of the prosecutor is not only confined to convicting, but also in seeking truth and justice. As a result, a prosecutor has two main roles: he is a lawyer interested in securing a conviction and a justice minister trying to establish the truth. It is the expectation of the public that both of these duties are fulfilled to the best of the prosecutor’s ability. The public also expect of him to act in a fairly manner while he executes all the responsibilities that are bestowed on him.
However, these have been several cases where the conduct of the prosecutor towards securing a fair trial has been put on disrepute. Just like defense attorneys, prosecutors are also faced with numerous ethical problems, which arise from a set of facts or in the same dispute. The main source of the prosecutorial ethical issues emanates from the prosecutor’s private practice prior to assuming his current position. In other cases, some prosecutors even maintain a private practice that conflict with their current prosecutorial functions. In each of these situations, ethical considerations that directly bear on his impartiality as a justice minister confront the prosecutor. Since prosecutors represent the most powerful element within the criminal justice system, the description of their ethical standards is more thorough as compared to those of criminal defense lawyers.
Public trust and confidence are also essential for the restoration of judicial integrity. Lack of trust, whether perceived or actual, possess significant threat to the dispensation of justice and the rule of law as a whole. The judges are the officers judged with the responsibility of boosting and holding the integrity of the judiciary. When making their rulings, judges are ethically obliged to follow the standards that are available. Therefore, the nature of power that judges have stems from the need to regulate their conduct and prevent them from abusing their professional competences, which will, in turn, lead to jeopardizing the rule of law.
The international standards stipulate that the independence of the judiciary is a fundamental fair trial guarantee and a significant precondition of the rule of law. Hence, a judge is required to exemplify and uphold judicial independence in both institutional and individual perspectives. This implies that a judge cannot engage in unethical conducts such as disorderly driving and expects to sit in a bench and preside over a case involving drunk drivers for instance. The independence of the judiciary should not be left as a prerogative or privilege of an individual judge. Instead, this is a responsibility that each judge is obligated to observe in order to facilitate his adjudication of a dispute in an impartial and honest way without influence or pressure from external sources. The decision by a judge to prosecute a prosecution a suspect must, therefore not be subjected to any political influences.
Ethics for Government Lawyers and Inequality in the Law
The vital role that ethics play in government and its institutions cannot be understated. If the powers of the government officials are not checked, they can engage themselves in corrupt and unethical practices. Ironically, lawyers have the moral obligation to check how the government use or abuse power in their formal dealings. Lawyers who work inside government officially serve as the due process defender as well as the gatekeepers for the rule of law. This based on a fundamental premise that the government will not deprive its citizens of their life, property and liberty without adhering to the substantive rights and the established legal processes. Therefore, government lawyers are required to uphold high morals of constitutional governance and due process. In effect, they have a delicate duty of ensuring that their clients are acting in accordance with the law and in a just way. Similarly, lawyers outside government also play a crucial role in checking its powers as well. In the United States, there are hundreds of lawsuits brought up against different officials of the federal, state, and local government.
Today, the ethics of the officials serving in the government’s national political platform together with their lawyers, is under heightened attention and scrutiny. During the Robert Mueller led investigations of the allegations of Russia’s influence of the 2016 American presidential election, President Trump dismissed the legitimacy and legality of the officers involved. Additionally, during Trump’s administration, several prominent government lawyers such as Sally Yates, Preet Bharara, Jeff Sessions, and James Comey were hauled out of office. On the other hand, President Trump’s personal lawyers such like Rudy Giuliani and Michael Cohen constantly featured in national platforms. The obligations and roles of government lawyers were thus put to task. It is a tough call to make for a government lawyer who finds himself working for a potentially unconstitutional and unethical officer.
Laws can be used to endorse ethical standards in government institutions or they can as well be used as neutral declarations to guide ethical concerns. The U.S Constitution indeed has provisions that mandate the government to ensure tranquility within its borders. This is indeed a statement that is ethically neutral. The commitment of this assertion can be found in the civil rights laws, which also promote ethical concerns. Government lawyers, thus, help in resolving such ethical dilemmas within its ranks.
However, it is unethical for lawyers in government to make public statements that the First Amendment has protected. In the appeals case of In re Morrissey of 1999, the court ruled that under certain conditions, lawyers maybe constitutionally prevented from issuing statements touching on criminal cases before a trial, especially if there is a reasonable possibility that such statements are bound to interfere with the delivery of a fair trial. Therefore, lawyers in government might not act as government spokespersons if the issues at hand are still active in court. However, since lawyers in government are the custodians and interpreters of the law, it is paramount that they hold and act with high ethical standards.
References
Casetext. (1962, Aug. 03). Spaulding v. Zimmerman. Retrieved from Casetext: https://casetext.com/case/spaulding-v-zimmerman
Casetext. (n.d). Evans v. Artek Systems Corp. Retrieved from https://casetext.com/case/evans-v-artek-systems-corp
Harvard Law Review. (2018, Nov. 09). McCoy v. Louisiana. Retrieved from Harvard Law Review: https://harvardlawreview.org/2018/11/mccoy-v-louisiana/
Lynn, J. D., Daly, C., & Rhys, C. (2016). The Elephant in the Room: Dealing with an Unprosecuted Criminal Disclosure in a Therapeutic Setting. Journal of Forensic Psychology, 1(4), 1-8.