Many difficult ethical issues arise for lawyers when a clash between their duties to clients and their duties to the justice system collide. Lawyers are confronted with ethical issues on numerous occasions. However, the clash between duties to clients and society as well as the justice system are highlighted when observing client confidentiality, conflicts of interests and the fees charged to clients.
Ethics and the legal profession
Lawyers are guided by principles set out in usually called ‘code of conduct’, which guide lawyers on important values such as honesty and integrity. There used to be lawyer focused decision-making approach where the client would give the information and the lawyer would be left with the decision to respond, but this approach was replaced with a client-based approach where the client enjoys autonomy where utmost freedom is given when making decisions. Lawyers are still expected to provide their arguments and subjective outcomes to the clients’ decisions to still act in their best interest, where the client would still have the possibility to reject this proposal.
Most importantly, one must remember that the lawyer is capable of giving subjective advice in order to further their own interests, which is unethical as the lawyer must act in the client’s best interests above all else and should not use their clients to pursue their own interests, which is why professional ethics is of utmost importance to ensure that lawyers do not find themselves involved in ‘conflicts of interest’. This principle ensures that a lawyer should never have to make a decision between assisting one client while negatively impacting another. This principle focuses on honesty such as honestly disclosing substantial information, which might potentially affect their capabilities to advocate. This is evident in SRA v Dennison where a partner of a firm benefited financially from a partnership, which was not known to the clients and other partners. Nonetheless, the principle benefits only the client as cases are presented by arguments based only on the client’s best interests, which render the justice system’s functioning fair and strengthen the public’s faith in lawyers. Therefore, professional ethics are crucial as trust in the public allows clients to engage in confidential discussions with their lawyer.
A client’s right to privacy is another ethical issue one should consider and is now considered an essential human right. This is why confidentiality is additionally important as trust is maintained in the lawyer-client relationship. For instance, in the Bar Standards Board, the code of conduct states that affairs should be kept confidential unless the law requires disclosure or if there is consent by the client. This is one of the most contentious issues as lawyers should not use this principle of confidentiality to justify misleading the court. For instance, if a client has confided in a lawyer with information and the lawyer knows the arguments presented to the court are false, the lawyer must seek approval from the client to ensure that the court is not misled, to no longer represent the client or withdraw the evidence that is misleading. Furthermore, a lawyer who should act in the interests of justice should never find themselves in a situation where their client misleads the court such as in Brett v SRA where the defendant could have disclosed illegal activities but did not and received a fine and a suspension. This case highlights the confidentiality principle being undermined by the duties of the justice system. Nonetheless, the issue with this is that it might have an impact on the extent to which clients confide in lawyers. A just outcome overrides any information being withheld and in turn leading to injustice.
Although law firms are known for their interest in generating money, overcharging clients is still not in the best interests of the client. Issues arise when clients are found in a desperate situation in need of professional help but may be exploited by lawyer’s fees. Perhaps, this problem will not appear to be as excessive when a lawyer is honest about the mechanisms of charging. Nonetheless, as fees are subjective, lawyers have a duty to act reasonably when disclosing costs such as explaining the various mechanisms of funding. Ethical issues arise in these circumstances as client’s interests can be harmed if they are unable to afford to costs or when they are being taken advantage of due to their lack of knowledge of the law and perhaps overcharged by their legal representatives. Therefore, such ethical issues are quashed when the issue of fees is adequately clarified at the beginning of the relationship since when this occurs a general sense of public confidence is once again restored.
Light is once again shed on the confidentiality principle when the public is considered. This is most evident when a lawyer becomes aware of some information from the client that might have negative consequences for finances or public health. The confidentiality principle does not allow this information to be disclosed without adequate permission, but when a significant public interest is at stake, the principal may be broken as lawyers have a general duty to society to disclose such information.
In essence, ethical issues arise when lawyers’ duties to courts, clients and society, in general, have collided with one another. It is of fundamental importance to stress that the duty to the court overrides all other duties and when a lawyer’s duty to a client overrides the duty to the court, certain sanctions and punishments arise seen in Brett v SRA. However, when the duty to the client is held about that of the public interest, distrust in the profession may be inevitable. These issues will continue to cause problems for lawyers until codes of conduct are made more specific as if this is not done lawyers are left with their own subjective viewpoints as to what in their opinion is just.