Legal professional practice Essay Example

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    Law
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    Assignment
  • Level:
    Undergraduate
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7Legal Professional Practice

Rule based role morality is an ethical approach that considers an action to be moral or immoral depending on whether the action was performed in adherence of certain rules. This approach makes it permissible to say that a lawyer who adheres to all the written down rules and regulations in the written profession is an ethical lawyer1. This approach is not true in its entirety as a decision is regarded ethical or righteous depending on its consequences and not solely depending on existing rules and regulations. A lawyer can be successful and seen to be professional in the eyes of the law, his clients and counterparts, but he could be unethical by some of the decisions he makes. This is because during the course of one’s practice, one may encounter morally significant decisions and the existing rules of Law may not offer answers to these decisions. If the lawyer makes a decision that results in negative consequences then the decision made was unethical and immoral in nature therefore he cannot be regarded as an ethical lawyer.

The rules found in general law and various statutes that lawyers are required to abide by fail to exhaust all the ethical and moral considerations that ought to inform a qualified lawyer. Indeed the rules provide guidance to lawyers on their roles and responsibilities such as protecting the interests if the client with utmost diligence and skill as well as upholding the law as a duty to the court2. However, a lawyer has a unique role within the legal practice and this role is to meet one’s moral requirements. When these moral requirements are ignored, ethical dilemmas arise where relevant interests in a situation cannot be all furthered or conserved. The interests are incompatible and they therefore clash or eclipse over each other, for example, the interests of the lawyer colliding with the court’s interests. These ethical dilemmas are evident in the course of administration of justice as cited in the case Legal Services Commissioner v Winning [2008] LPT 13.

Ethics in any profession constitutes of two things, rules or the professional standards and the personal values that an individual holds. The regulations are responsible for extrinsic control while one’s personal character is responsible for intrinsic control. For an ethical dilemma to be therefore solved, the rules of Law and one’s personal values have to both come to play. The rules of law however can only act as a guide and the lawyers have to choose what action they will take in a situation that has competing values. Such situations include which clients to accept, how one should respond to a client’s expectations, what evidence to submit, among many others. In Legal Services Commissioner v Winning [2008] LPT 13, John Winning got wind of the intended search of his client and he warned him in good time. The courts decided that, according to the rules of Law, it was right to warn the client of keeping specific material, but for the lawyer to specify on the time of the search would be unethical when it comes to performing his duty to the courts.

In some situations, one’s values play a larger role and bear a heavier weight that the rules in the legal profession. Such situations include working for a client then acting against him/her in different circumstances. There is a risk that one will use confidential information to cause detriment to the client. This will put one a step ahead of one’s opponent increasing the chances of winning a case. However, one should choose to act ethically by not choosing to participate in that specific case and to allow another lawyer to act upon it or to be loyal to one’s client if the case is to be taken up3. Another situation is representing a guilty client as innocent before a court of law even after he pleads guilty as in the case of Entick v Carrington [1765] EWHC KB J98. One should not prioritize winning before presenting the truth to the court. An ethical decision would be to refuse to act on the case as it is not in line with ones moral requirements. If one takes up the case, care should be taken not to mislead the court or suggest that someone else committed that crime. Morals should not be overtaken by selfish gain.

Additional resources are required to support good ethical decision making when values contradict. This way, a lawyer becomes a good lawyer in ethical sense and not just a skilful, diligent and successful lawyer. These values include respecting the law, respecting justice in itself and respecting those who are vulnerable in the community or in a certain situation. It also calls for one to embrace community service and not just the service and gain of self. One should act in good faith in all circumstances with no intention of causing harm to clients, fellow lawyers or even the courts of Law. One should also uphold utmost honesty and loyalty during the course of practice.

Ethical engagement does not only involve the application of these values but also the recognition of practice issues which invite ethical evaluations and judgments Lawyers must ,first and foremost, be alive and aware of issues that carry moral significance and those that require mere application of rules of Law. Each situation carries a complexity of a unique kind and evaluating this complexity keenly is necessary as well. A lawyer should then determine the professional role that they ought to play in that specific circumstance. Additionally, lawyers ought to identify the various pressures that intensify the challenge of decision making. Such pressures include colleagues, difficult clients and adversaries. These pressures can lead to the clouding of one’s judgment and the importance of morality may be greatly underscored4.

By engaging directing with varied questions of values and interests, the lawyer should prioritize those attendant values and interests using a justifiable means. This is done with the acknowledgement that not all values and interests can be accommodated. In Australia, even though there may still exist considerable devotion concerning the idea of professional responsibility being largely a matter of following rules, this devotion is not one that can be fully relied on. Indeed the following of rules plays a large part when it comes to professional responsibility, but keeping up with ethical standards is a part that is too important to go unattended to. In the past, such ethical requirements were not recognized, but various reports and journals have registered adverse damage that has resulted due to the neglecting of ethical standards in organisations and institutions far and wide. As a result, individuals and groups have since then voiced their concerns in a bid to help others realize the vital role played by ethical values in the legal practice. For example, modern day has seen developments that concern the revision of codes of ethics in Western Australia5.

In conclusion, rule based morality, as argued, is insufficient when it comes to giving solutions to the ethical dilemmas of legal practice. The regulatory framework and company reward structures should be adjusted so that they could reinforce ethical and moral conduct accordingly. Ethical behaviour should also be emphasized in the course of legal education. As for lawyers, they should be aware of the fact that a solid reputation is the most valuable and vital asset a profession can have. They should then demonstrate, through their actions, how being a professional lawyer is much more about true responsibility than it is about mere status6. This is done by performing his duty diligently and shunning all unethical advances so as to uphold professional responsibility in all aspects, with the ethical aspects strongly emphasized.

References

Brian Nelson, 2006, Law
and ethics in global business; how to integrate law and ethics into corporate government, Oxon: Routledge

Posner, R, 1999, The Problematics of Moral and Legal Theory, Oxford: Harvard University Press.

Ralph Nader and Wesley J. Smith, 2006, No Contest: Corporate Lawyers and the Perversion of Justice in America, ISBN 0-375-75258-7

Robertson, 2007, Roles, rules and moral resources in Australian legal practice, Penguin, ISBN 978-0-14-102463-9.

Ross, Y, 2009, Ethics in law- Lawyers responsibility and accountability in Australia, Alexandria: LexisNexis Butterworths.

William Wines, 2006, Ethics, Law and Business, Routledge. (www.mybusinessbee.com/cat904110.html)

1
Robertson, 2007, Roles, rules and moral resources in Australian legal practice, Penguin, ISBN 978-0-14-102463-9

2
Legal Professional (Solicitors) Rule 2007.

3

Fordham v Legal Practitioners Complaints Committee (1997) WAR 467.

4
William Wines, 2006, Ethics, Law and Business, Routledge. (www.mybusinessbee.com/cat904110.html)

Legal Services Commissioner v Mullins [2006] LPT 012.

5
Ross, Y, 2009, Ethics in law- Lawyers responsibility and accountability in Australia, Alexandria: LexisNexis Butterworths.

6
Brian Nelson, 2006, Law
and ethics in global business; how to integrate law and ethics into corporate government, Oxon: Routledge