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The Lawyer-Client Relationship
The lawyer-client relationship should be based on trust and confidentiality. Under no circumstances should a client lie to his or her lawyer as well as under no circumstances should a lawyer incriminate his or her client for telling them the truth. A problem in trust and confidentiality will result to poor lawyer-client relationship, which could significantly impact the outcome of a case. Trust and confidentiality problems arise when the client withholds some information from his lawyer for fear that his lawyer will back out. There are clients, for instance, who are guilty of doing the act they are being charged with, but wonder whether they should tell their lawyers or not. The common mindset is that, “even if they remain silent, they are concerned that their lawyers will believe that they are guilty, and either won’t want to represent them, or will do a poor job” (Portman).
The lawyer, on the other hand, is faced with an equally daunting dilemma when they know that their client is guilty of the charge and yet would not admit their guilt or feel that their client is not telling them the whole truth. So much worse is the ethical dilemma that arise when the client reveals his or her guilt to the lawyer. Being the chosen lawyer of his or her client, the can either drop the case or proceed with defending the client to the best of his abilities. Either way, the lawyer is placed in an awkward position. If the lawyer drops the case, he compromises his professionalism. On the other hand, if the lawyer accepts the case, the lawyer may find himself contradicting his personal ethics and risk being publicly condemned and ridiculed for his actions. A similar scenario occurred in the case of Charles Phillips, the lawyer who represented the accused butler, Courvoisier, for the murder of his employer, William Russell in 1840 (Asimow 1). In this case, Phillips suffered public ridicule after it was learned that Courvoisier informed the latter about his guilt and yet Phillips proceeded to defend Courvoisier despite his knowledge about his guilt. As observed by one researcher, “There was an immense outcry against Phillips in the press. Not only laymen but many (though not all) lawyers condemned him for his aggressive defense and his reputation never recovered” (Asimow 1).
Many lawyers and their clients today face a similar dilemma and the adversarial legal system only worsen the ethical problem that arise between the lawyer-client relationship. As observed by one legal researcher, most justice system that adheres to the adversarial due process, makes two possible scenarios for proving guilt; the factual guilt wherein the accused is truly guilty and the legal guilt where the defendant’s guilt must first be proven in court before the accused can be considered as guilty (Keith). Because of this legal system, many defense lawyers and their clients feel that they have a chance to win the case despite the client being guilty for as long as the prosecutor could not present a strong case that would prove beyond reasonable doubt the guilt of the accused.
In conclusion, it is important for the lawyer-client relationship to be built on trust and confidentiality because at the current adversarial legal system, the chances of successfully winning the case largely depend on it. Although lawyer are bound by professional ethics to keep their clients’ confidentiality, there are still clients who do not fully trust their lawyers for fear that they would back out on them once they know that about their guilt. A client who does not trust his lawyer, however could not expect his lawyer to perform the highest level of performance. Moreover, the lawyer places his profession in jeopardy by continuing to represent a client who withholds information from him.
Conflict of Interests
For ethical reasons, a lawyer could not continue to represent the client if conflict of interests are involved. A conflict of interest may manifests itself in different forms and is often difficult to identify. However, as a general identification, a conflict of interest is present “if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person” (Suni). A lawyer may be compelled, out of ethical reasons, to inhibit from representing a client if there exist relationship or an affiliation between the lawyer and the opponent. The lawyer, for instance, may be a relative or friend of the opponent, which could make him or her perform less than his or her professional abilities. Or, he or she may have a been a previous lawyer of the opponent, which makes the lawyer in position of confidential information that could unfairly incriminate the opponent in favor of the lawyer’s client.
In order to avoid conflict of interest, most judicial bodies impose rules of restrictions on lawyers in order for them to avoid situations wherein a conflict of interest will arise. One of which is the restriction about acting on more than one party. The rule set by the Law Society of New South Wales, for instance, states that “If a practitioner, who is acting for more than one party to any proceedings or transaction, determines that the practitioner cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of them, the practitioner must thereupon cease to act for all parties” (Law Society of New South Wales 18). The United Kingdom has a similar rule regarding conflict of interests. Accordingly, a lawyer “can never act where there is a conflict, or a significant risk of conflict” between the lawyer and his clients (Griffiths-Baker and Moore 2547). There are, however, exceptions to this rule. In most legal institutions around the world, lawyers are given the prerogative whether to accept or decline a client when a conflict of interest is involved. Lawyers in the United Kingdom and the New South Wales, for example, can choose to serve clients with conflict of interests under these conditions: the lawyer can give assurance that he can represent each clients competently without affecting his ability to perform his duties; the representation is not against the law; the representation does not conflict with the interest of the clients; and the clients are given prior knowledge and that their permission were acquired (Griffiths-Baker and Moore 2549).
In conclusion, a lawyer could not just accept indiscriminately any clients that requests his services. Being governed by acceptable ethical practices of their profession, lawyers needs to consider as well the conflict of interests that would arise with regards to their relationship with their clients. When there is a clear conflict of interest between parties, the lawyer could not accept the case for ethical considerations. Such decision, however, should not be left for a lawyer to decide. In order to ensure the protection of the clients and the integrity of the justice system, most countries have laws that deals with conflict of interests.
Lawyer’s Social Responsibilities
Social responsibility is a universal concept that applies to almost all forms of business entities. It is a fairly new concept that became extremely popular among business leaders and is used by its proponents to challenge the prevailing thought in the early 20th century that business is all about making profit. The American economist, Milton Friedman, for instance, argued in one of his essays that the main responsibility of business entities is to make profit for its shareholders (Friedman). A paradigm shift on how organizations conduct their business, however, emerged in the later part of the 20th century when business leaders began to realize that the sustainability of their organization does not only rely on the financial aspect of their business. Equally important is the environmental and social aspect of how the organization conducts its business. This business strategy is also known as the triple bottom line; a concept, which posits that “a corporation’s ultimate success or health can and should be measured not just by the traditional financial bottom line, but also by its social/ethical and environmental performance” (Norman and MacDonald 1).
The practice of law is also a business by its own merit. By analogy, law firms and private lawyers offers their services as products and in return make financial gain. Their clients serves as the consumers of their services. As a business entity, the concept of social responsibility should also apply to law as a profession. Lawyers are faced with an increasing challenge to give back to the community through environmental and socially responsible initiatives. Among the most pressing concerns, as observed by law experts, that requires the expertise of lawyers are the “recurrent financial instability in global markets, threats to the sustainability of global capitalism and governance, pressures on international human rights and the rule of law itself, and global climate change with its unprecedented risks to the planet and its species, all combine to make it imperative that legal professionals advising and engaging in various ways with global business incorporate this larger practical and ethical context” (Pitts 479). The more salient concern, however, that concerns almost all lawyers is the worsening economic situation of the poor, which renders many people unable to afford legal services. As part of the lawyer’s social responsibility, most lawyers offers pro bono legal advice. Pro bono or free legal services is done for the interest of the public, particularly those who does not have the financial capability to pay a lawyer (Sossin 131). Most bar associations implore its members to render a minimum time for pro bono work. The American Bar Association, for example, promotes pro bono for its members; persuading them to “render at least fifty (50) hours of pro bono publico legal services per year” (DeBroff, Lapp, and Shabecoff 4).
In conclusion, it can be deduced that the concept of social responsibility is interdisciplinary and also applies to law as a profession. As a business endeavor, the importance of being socially responsible in practicing law could not be undermined. Social responsibility improves the morale and self-image of the firm and the individual lawyer; giving him a sense of duty and fulfillment in practicing his career. Many people needs help in their legal concerns, however, only a few can afford the services of a lawyer. As agents of justice, lawyers are ethically bound to provide services for the sake of public service when needed.
Litigation
Litigation refers to the legal action or proceedings brought about by two parties in the court of law (Justice Education Society of BC 4). Many terms are being commonly used to refer to litigation. Among the most common terms are lawsuit, action, proceedings and case. There are two types of litigation: the criminal and the civil litigation. Criminal litigation refers to the proceedings that deals with criminal offenses while civil litigation is refers to the proceedings on tort and other civil offenses including violations of the family law (Justice Education Society of BC 4). A special case is the juvenile court where juvenile offenders are being tried. Most juvenile proceedings, however, differ from the normal litigation process since most juvenile offenders do not undergo the normal process of litigation in a court of law. Juveniles in the United States, for instance, does not undergo jury hearing as their cases are being presided directly by the judge (LaMance).
A person who is accused of violating a criminal law will undergo a criminal litigation process. Criminal proceedings may vary slightly depending on where the crime is committed. Generally, though, the major processes of criminal litigation starts with a complaint followed by an investigation of the complaint, the issuance of the arrest warrant, the charging, the trial and the sentencing (“Ohio Rules of Criminal Procedure”). A convicted person may appeal his case and if approved, it will be heard by a higher court. A criminal may appeal his case up to the Supreme Court, who has the last say on whether the sentence would be upheld or revoked. A civil litigation, on the other hand, starts with a civil claim or a petition (Justice Education Society of BC 5). These civil claims or petitions are then filed to the court with jurisdiction over the case. The court then notifies the defendant of the civil case. The defendant then files a counterclaim. A pre-trial is scheduled wherein the plaintiff and the defendant decides whether to proceed with the case or not. However, if the plaintiff decides to proceed with the case, a trial date is set and both parties will present their evidence and arguments in court. Once the case is decided by the jury or the judge, the verdict is enforced and the losing party compensates the winning party with the litigation expenses that are incurred.
In conclusion, the litigation can be considered as one of the major legal proceedings. This processes is governed by certain legislation and rights that are being afforded both to the plaintiff and the defendant. The litigation is the manifestation of the adversarial system wherein due process is being employed in order to investigate and determine the guilt or innocence of the defendant and to provide remedy to civil claims or petitions.
Alternative Dispute Resolution
Litigation for criminal and civil cases can be a difficult, time consuming and costly process. For the same reason, most lawyers recommend that as much as possible, litigation should be the last resort. If possible, disputes are settled through alternative resolutions. Considering the trouble and cost associated with pursuing a litigation proceeding, many cases often ends up in an alternative dispute resolution. An alternative dispute resolution refers to any procedure that aims to resolve an issue other than litigation or court decision. Such resolution is achieved either through settlement or arbitration.
Settlement is one of the most common alternative ways of resolving a dispute and is also considered by experts as the most efficient (Financier Worldwide 6; Justice Education Society of BC). As observed by experts, only 3 percent of the cases proceed to the trial stage because most end up in amicable settlements. Settlements does not necessarily have to involve the court. However, the court can be a key player in the settlement of a dispute. The settlement can also happen anytime and at any stage of the litigation. Arbitration is another way of settling a dispute without going through the process of litigation. It is defined as “a private method of dispute resolution in which the parties select the individual or individuals who will finally decide the matters in issue following a process agreed upon by the parties, with no or a minimum of court intervention” (Tupper). Arbitration is also a form of settlement although it is more formal because it requires a mediator or arbitrator. In the United States, arbitration has become a common method of dispute resolution and is being done in four major arbitration centers located in Houston, Miami, New York and Washington D.C. (Financier Worldwide 6).
In conclusion, cases does not necessarily have to go through legal proceedings. Most often, in order to avoid further difficulties and litigation costs, the involved parties agree to settle their dispute either through amicable settlement or through arbitration. These alternative dispute resolution are more practical approaches to seeking compensation and justice since it is swift and efficient. Such actions also preserves the privacy of both parties. Unless necessary, an alternative dispute resolution should be sought after as compared to litigation to avoid the unnecessary utilization of time and resources.
Works Cited
Asimow, Michael. “When the Lawyer Knows the Client Is Guilty: Legal Ethics, and Popular Culture.” 2006. Web. 1 Jan. 2017.
DeBroff, Stacy, Kevin Lapp, and Alexa Shabecoff. “Pro Bono Guide: An Introduction to Pro Bono Opportunities in the Law Firm Setting.” 2008. Web. 2 Jan. 2017.
Financier Worldwide. “Litigation and Alternative Dispute Resolution.” 2014. Web. 2 Jan. 2017.
Friedman, Milton. “The Social Responsibility of Business Is to Increase Its Profits.” 1970. Web. 2 Jan. 2017.
Griffiths-Baker, Janine, and Nancy J. Moore. “Regulating Conflicts of Interest in Global Law Firms: Peace in Our Time?” Fordham Law Review 80.6 (2012): 2541–2547. Print.
Justice Education Society of BC. “Overview of the Civil Litigation Process.” 2010. Web. 2 Jan. 2017.
Keith, Kresenda L. “Ethical Dilemmas in Defending the Factually Guilty Client.” Web. 1 Jan. 2017.
LaMance, K. “How Does the Juvenile Criminal System Differ from the Adult Criminal System.” 2013. Web. 2 Jan. 2017.
Law Society of New South Wales. “ETHICS AND CONFLICT OF INTEREST AND DUTIES.” 2006. Web. 2 Jan. 2017.
Norman, Wayne, and Chris MacDonald. “Getting to the Bottom of “Triple Bottom Line.” 2003. Web. 2 Jan. 2017.
“Ohio Rules of Criminal Procedure.” Web. 2 Jan. 2017.
Pitts, Joe III. “Business, Human Rights, & the Environment: The Role of the Lawyer in CSR & Ethical Globalization.” Berkeley Journal of International Law 26.2 (2008): 479–502. Web.
Portman, Janet. “Representing a Client Who the Lawyer Thinks Is Guilty.” 2016. Web. 1 Jan. 2017.
Sossin, Lorne. “The Public Interest, Professionalism, and Pro Bono Publico.” Osgoode Hall Law Journal 46`.1 (2008): 131–158. Print.
Suni, Ellen Yankiver. 2005. Web. 2 Jan. 2017.
Tupper, David. “LITIGATION vs. ARBITRATION.” 2011. Web. 2 Jan. 2017.
