Abstract
Legal ethics poses an understanding challenge when compared from the perspective of the client and that of the lawyer. On the one hand, the lawyer is required to uphold the interests of the client while on the other hand, the lawyer’s own conscience judges him when the decisions made go contrary to societal definitions of what is morally acceptable. In such cases, the autonomic model of legal ethics is upheld as the code of practice. However, the moral inclination of actions still remains as the societal definitions hold regardless of the impacts of such advocacy actions.
Introduction
The moral obligations of lawyers during practice draw many debates across the divide. The dilemma between ethical practices based on personal conviction and the duty to practice by the professional code of conduct makes it difficult to effectively determine whether a lawyer is practicing ethically or not. From a third party outlook, the actions of a lawyer may be deemed unethical or even immoral to some extent particularly where an adversarial system is in place. On the other hand, the same actions are considered to be in line with the professional code of ethics for the advocates and acting otherwise may be considered to be incompetence. As lawyers, basing advocacy arguments on personal convictions or conscience is considered a violation of the code of ethics and may result in being recognized as an incompetent advocate. Understanding legal ethics is thus the best way to ensure that the practice of law is separated from normal daily activities in the life of a lawyer. The paper henceforth explores the concept of legal ethics, particularly the ethical obligations of a lawyer from the perspective of law practice.
Literature Review
Authors such as Markovits have presented the dilemma of the lawyers in regards to the societal observations relative to the professional expectations of the practice. Adversary lawyers have specifically been on the limelight based on their obligation to protect their clients regardless of the consequences on the larger society. The lawyers have as such been associated with various legal concerns including the claims that they provide disproportionate care to their clients and failing to balance the interest and the claims of their clients with those of all people in their domain of operation.[1] Freedman adds to this through the assertion that the obligation of lawyers is to manipulate the law as well as the facts for the benefit of their clients. Based on this obligation, they at times commit actions that may ordinarily be considered immoral, but which have the implication of painting them as competent lawyers.[2]
In explaining the ethical position of the lawyer, Freedman reports that the ethical code of conduct for lawyers places two charges on their shoulders. Such charges include acting partially on behalf of their clients without regarding the consequences of their actions. This includes by not providing legal arguments against one’s client; not undermining the case of a client due to personal convictions and not citing personal conscience as a reason for a given line of argument in the court of law.[3] Through these practices, the lawyer adheres to the zealous advocacy requirement which desires that the lawyer should act in support of the client at all times. This at times calls for the practice of generic unfairness, which Leff and Dauer describe as the practice of convincing courts and even the people involved in a case of a particular vice despite being personally convinced and/ or aware that whatever is supported is wrong.[4]
Contrary to populist perspectives which focus entirely on the adversarial system, D’Amato and Eberle emphasize the existence of three key models of legal ethics. According to the authors, the practice of lawyers can be categorized into autonomic, deontological and sociological models of ethics. In the autonomic model, the lawyer has to act in preservation of the adversarial system through protection and support of their client at all times.[5] This implies that no action of the lawyer should counter the needs of the client. Similarly, the sociological model upholds the dignity of the state through the requirement that the lawyers must not keep any information confidential from the state. The deontological model asserts that some acts are immoral regardless of their intentions or consequences in the society.[6]
Findings and Discussion
The classification developed by D’Amato and Eberle provides the most rational exploration of the legal ethics associated with law practice.[7] While the advocate has to act at all times in the interest of the client, there are circumstances under which the state cannot be barred from accessing certain information in relation to the client’s interests. In such cases, the lawyer has the obligation to provide this information while at the same time making efforts to ensure that the client is protected. The actions of the lawyer in so doing can be either ethical or immoral based on the general societal outlook yet in line with the professional code of conduct. The lawyer has to ensure that his/ her own conscience does not come between the need to stick to the client’s interest and the societal needs. In such cases, the lawyer’s conscience remains a constant reminder of the morally wrong actions regardless of their intentions and consequences.
Conclusion and Recommendations
Although the role of the advocate in the legal system is clearly understood, legal practice remains a subject that may be easily misunderstood by those outside the legal system. Contrary to the obligation of the advocate, the lawyer has the immediate responsibility of protecting his client at all costs. This may come with many challenges, especially the need to balance between personal convictions and the legal ethics in the profession. Being in the adversarial system implies that a lawyer may at times act contrary to their own convictions and conscience as any other actions would be regarded as incompetence.
References
Leff, Arthur and Dauer, Edward. “Correspondence: The Lawyer as Friend.” Yale Law Journal 86, (1977): 573.
D’Amato, Anthony and Eberle, Edward J. “Three Models of Legal Ethics.” Faculty Working Papers. Paper 73, (2010): 6.
Freedman, Monroe. Lawyers’ Ethics in an Adversary System. Bobbs- Merrill, 1975.
Freedman, Monroe. “Professional Responsibility of the Criminal Defense Lawyer: Three hardest questions.” Michigan Law Review 64, (1966): 1469- 1484.
Markovits, Daniel. “Legal Ethics from the Lawyer’s Point of View,” Yale Journal of Law & the Humanities 15, 2 (2003):209- 286.
[1] Markovits, Daniel. “Legal Ethics from the Lawyer’s Point of View,” Yale Journal of Law & the Humanities 15, 2 (2003):209- 286.
[2] Freedman, Monroe. Lawyers’ Ethics in an Adversary System. (Bobbs-Merrill, 1975 )
[3] Freedman, Monroe. “Professional Responsibility of the Criminal Defense Lawyer: Three hardest questions.” Michigan Law Review 64, (1966): 1469- 1484.
[4] Leff, Arthur & Dauer, Edward. “Correspondence: The Lawyer as Friend.” Yale Law Journal 86, (1977): 573.
[5] D’Amato, Anthony and Eberle, Edward J. “Three Models of Legal Ethics.” Faculty Working Papers. Paper 73, (2010): 6.
[6] Ibid.
[7] Ibid.