Legal ethics Research Essay

Legal ethics are not only essential but also indispensable for overcoming the difficulties and challenges that arise on a regular basis in the practice of law. The fact that legal professionals face so many difficulties sets them apart from other experts. A lawyer can either be an attorney or a barrister. In the case of D'Orta-Ekenaike v. Vicoria Legal Aid, Justice McHugh observed, "I doubt if there is any other profession where the common law requires a member of another profession to act contrary to that member's client's interests." According to the judge, the factor alone is sufficient enough to preclude reasoning by the “analogy from the liability of other professions and occupations for negligent conduct.”

The case in question involves a substantive legal, ethical question involving the conduct of legal practitioners and the judge. In brief, it would be of great importance to introduce the parties to the case. The petitioner in the case is Flintwinch who is suing for an alleged breach of contract. The respondent in the case is Madam Rigaud, a prominent business woman who is accused of not fulfilling her contractual obligation. The lead lawyer for the petitioner is Clennam. On the other hand, Ms. Merdle is the lead lawyer for the respondent in the case.

The gist of the case lies with the move by Amy, the daughter to the respondent, who unfortunately passed away. Amy’s complaint to the Legal Practitioners away. In her complaint, Amy alludes to the mother's demise as a cause by the improper handling of the case by the legal practitioners in the case. The paper delves into the details of the case and focuses on the pieces of advice I would extend to the LPCC as to whether any or all of the lawyers involved in the matter has a case to answer for the breach, if any, of their ethical duties owed to Amy.

Facts of the Case

The case in question has many facts. One, Clennam failed to record a full statement of his client on the laptop in line with the rules of his employer, the Dorrit, and Co. Two, Madam Rigaud made contradictory submissions in the court of law. Three, an interjection by the judge was misinterpreted by the respondent as biased against her. Four, the damages sought by the petitioner were not granted by the court by rather by the respondent, and the judge consented to the $65000 payment for damages. The respondent, for lack of understanding of the proceedings of the court, resolved to meet the damages for a contractual breach which had not been proved to have been committed by the court. In fact, Sparkler, the respondent's lawyer, did not get an opportunity to counter the cross-examination done on his client by the petitioner's counsel.

Duties to Be Considered in the Case

To wholly fathom the legal ethics and the theoretical background of the ethical standards as would be applicable in the case, the duties owed to different parties to the case must be understood on equal measure. These duties of legal practitioners include the duties to the client, duties to the court and administration of justice and duties of other practitioners and third parties.

Duties to the Court and Administration of Justice

The duties that lawyers have to the court and administrative justice can be discussed under eight main sections.

The Paramount Duties

In the case of Rondel v Worsley (1969) 1AC 191, 227 (HL), it was held that the duty of a lawyer to the court is paramount and prevails to the extent of inconsistency with other duty or duties if that may be the case. The Giannarelli v Wraith ( 1988) HCA 52; (1988) 165 CLR 543, (11), (12), (31) the case defines the court as an extension to mediations and tribunals and defines a lawyer as a property of the court.

Duty to obey and uphold the law

By Australian Constitution, a legal practitioner must not only be seen to be obeying the law but obey the law in reality. This requirement is legally known as fidelity to the law.

Duty to maintain professional independence

A legal practitioner is not just a mere agent of the client but a professional exercising judgment. The legal practitioner should, therefore, maintain such independence in all aspects of the practice all the way from litigation, mediation, negotiation and even transactions work. A lawyer should ensure matters such as conflicts of interest, the lawyer being a potential witness in a case and personal business relationships with clients do not stand in the way of justice.

Duty of candor and honesty

All legal practitioners have the duty of not misleading the court. In the case of Kyle v Legal Practitioner’s Complaints Committee ( 1999) WASCA 115; (1999) 21 WAR 56, (66), it was held that intentional misleading of the court by a counsel “goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice.” Besides, it was held that "the duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents." It is indeed clear that a breach of the duty to honesty culminates into a breach of the ethical duties of a lawyer.

The duty of candor and honesty is considered in respect to the law in which the lawyer should ensure the courts are aware of all the relevant law and procedure and in respect to the facts in which the lawyers must desist from submitting wrong documents to the court regarding the oral and written submissions.

Duty maintain formality and courtesy when in communications with court

In the case of Legal Profession Complaints Committee v in de Braekt (2013) WASC, 124, it was held that willful and disrespectful behavior may amount to a contempt of the court and that there can be no communication with the judge of account in the absence of the other parties to a case. In as much as the lawyers must ensure they are well prepared for the case before the court of law, the judges too must hear the case expeditiously and with utmost care.

Duty not to abuse the court process

It was held in the case of Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155, [44] That "While the duty to take every possible point might be a duty owed by lawyers to the client, the paramount duty of the Court is to advance only points that are reasonably arguable. Lawyers should indeed act as a screen to exclude unreasonable or hopeless arguments." This duty extends to the duty of lawyers not to present hopeless cases based on baseless allegations.

Finally, there are duties in respect to media communication and immunity of advocates. There is a thin line between freedom of expression and maintaining the integrity of the rule of law. The lawyers should, therefore, ensure their communication with the media does not limit the adjudication of the rule of law.

Duties to the client

A lawyer has several duties to the client. These duties have been subdivided and discussed as below.

The retainer

The retainer is an agreement between a client and a lawyer which is responsible for setting out the legal services to be provided and contains three main aspects which are, the identity of the client, the specific scope of the lawyer’s authority and an evidence of the contractual relationship.

Duty of honesty to the client

The duty states that a lawyer should be completely honest and open with the client.

Duty of loyalty and trust

According to “Professionalism and Commercialism: Conflict or harmony in modern legal practice?” (2010) 84 Australian Law Journal 765, 771, loyalty and trust are principal duties of a lawyer to the client and the two override such other duties as the duty to avoid conflicts of interest and the duty to act in the best interest of the client.

The duty to follow client’s instructions and maintain the client’s independence

In the case of LPCC v Fleming [2006] WASAT 352; [2006] WASAT 352, [70], it was found that a lawyer is not merely a client's agent and mouthpiece, but also an individual with an overriding duty to the administration of justice provided the instructions are lawful, proper and competent.

Duty to be competent and diligent

A lawyer owes the client a duty to be both competent and diligent. A lawyer should portray substantive knowledge and skills, allow the Alternative Dispute Resolution (ADRs) to take place if that is in the best interest of the client, be able to reject a retainer if such is beyond his or her competence and have the necessary experience and knowledge of the client as may be deemed relevant. The other duties to the client include the duty in respect to costs, duty to avoid conflict of interest and the duty to maintain a client’s confidentiality.

Duties to other practitioners and third parties

Lawyers and other legal practitioners have legal duties to other lawyers, to third parties, duties about advertising, duties about lawyers' other businesses and duties about pro bono work.

Duties to other lawyers

In the case of Legal Services Commissioner v PFM [2013] VCAT 827, [144], it was held that honesty to the other lawyers is a fundamental duty of a practitioner and that "It is because there are so many opportunities for legal practitioners to advance their interests or those of their clients through taking dishonest action, where others will assume their honesty, that the responsibility on practitioners is so great." In so saying, the court concluded that a lawyer should not use dishonest means to further the interests of the clients neither should a lawyer knowingly make misleading statement about or to an opponent as was later illustrated in the D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, [108]-[111] (McHugh J) case. Besides, a lawyer should not take advantage of the opponent’s mistakes in the court of law such as an inadvertent disclosure of the other client’s privileged material as determined in the case of Legal Services Commissioner v Mullins [2006] QLPT 012; LPCC v Fleming [2006] WASAT 352; (2006) 48 SR (WA). Finally, it is considered unethical for a lawyer to deal directly with an opponent’s client either orally or in written communications.

Duties to third parties

It is a requirement of ethical policy and standards that a lawyer extends the same honesty he or she has towards the fellow lawyers in legal practice to all the other third parties which are outside the legal practice. For instance, in the case of Chamberlain v the Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148, it was held that the deputy commissioner of taxation took advantage of tax assessment figure mistake.

Duties in respect to advertising

It is legally untenable for the people in the legal profession to advertise their services. It is therefore ethical for lawyers not to engage in advertisements.

Duty in respect to pro bono work

Pro bono is a Latin word meaning for the public good. It is indeed true that not everyone in the society can pay for the services of lawyers yet the inability does not take away the possibility of them being in need of such services. It is therefore ethical for lawyers to provide the legal services for a significantly reduced fee and with absolutely zero expectation of a commercial return.

Analysis of the case

Having looked at the specific duties of the lawyers with respect to the clients, fellow legal practitioners, and third parties, it is possible to analyze the case in question in line with the identified facts and the consequent findings. The analysis shall, therefore, be done by responding to ethical questions.

Did the plaintiff’s lawyers obey their ethical duty to Amy?

Flintwich's legal lawyers including Ms. Merdle and Flora had an ethical obligation of not interacting directly with Amy's mother, Madam Rigaud. From the facts obtained by the Legal Practitioners Complaints Committee ( LPCC), the respondent's lawyers did not at any one time directly interact with Amy's mother. To this extent, therefore, the plaintiff's or the petitioner's lawyers did not breach their ethical duty to other lawyers.

As regards the duties to the third parties, where Amy belongs, the lawyers failed to obey their ethical duty of not using fair means in advancing their case. Flora, one of the lawyers, having obtained a USB stick containing privileged information which touched on the case she was prosecuting, went ahead to contemplate using such information in the court of law save for the insufficient time available. The facts obtained by LPCC indicate that Flora exercised dishonesty by trying to use information obtained via unfair means to get their case heard and possibly determined in their favor. Merdle did ask about the provenance of the document just to be sure of how to use it and not how to use it.

Finally, the plaintiff’s lawyers in the case that is, Flora and Merdle, did fulfill their ethical duty in respect to advertising since it has not been proven from the facts obtained by LPCC that the legal practitioners did advertise their legal services to either Amy or the late mother.

Did the respondent’s lawyer obey his duties to Madam Rigaud, Amy’s mother?

This is an important ethical question that would help put into perspective the conduct of Clennam and Sparkler, Madam Rigaud’s lawyers.

Clennam’s duty of honesty to Madam Rigaud was obeyed and not breached. Immediately Clennam realized he had lost his USB stick and therefore had to prepare a formal statement afresh; he resolved to let his client know in the spirit and duty of honesty. However, there is one scenario where Clennam was not honest with the client. The scenario is when Spaerkler, the client's barrister, colluded with Clennam not to have a translator on standby without alerting or notifying the client of that decision.

As far as the duty of loyalty and trust is concerned, Clennam and the firm of Dorrit and Co have, over a long time, fulfilled such a duty. The loyalty and trust are evident from the facts that Madam Rigaud only uses the firm as and when needed. The facts do not reveal any other firm solicited by the Dorrit's client, Madam Rigaud. The facts only point out to the premise that Dorrit and Co as a firm have been so loyal and trustworthy to the client that she saw no need for hiring the services of another law firm or other legal practitioners as it may be the case.

In respect to the independence of a client, Clennam did obey his duty of respecting the independence of Madam Rigaud even in cases where she made contradictions. It is captured in the facts that Clennam, one of the respondent's lawyers, is not only competent but also diligent. It is identified that Clennam went to the same law school as Flora and has been a lawyer with the Dorrit's firm for two years. The fact that Clennam has been able to administer his duties for two years only shows that he is competent enough to offer legal services to Madam Rigaud.

The duty of confidentiality is one in which Clennam greatly breaches in the case. Dorrit's data protection policy is meant to ensure that the lawyers to not expose confidential information given to them by their clients to the third parties. In the Flintwinch v Rigaud case, it is evident, from the facts obtained by LPCC, that Clennam was negligent in two ways. One, Clennam failed to record the official client's information on his laptop as captured by the policy. Two, Clennam went ahead to act recklessly with the USB stick despite the fact that he was aware he did not have a back up of that information. Besides, the lawyer set a simple and guessable password which endangered, as it was later proved, the privileged information given by the client, Madam Rigaud.

Finally, Clennam did not breach his duty about costs and the duty to avoid conflicts of interests. The facts, as presented by LPCC, did not at any one point mention a scenario that would put the duty of the lawyers to jeopardy since the client and the lawyers did not share business deals.

Did any of the practitioners breach their duty to the court and administration of justice in a way that affected Amy?

As mentioned in the duties of lawyers, the duty to the court involve paramount duties to obey and uphold the law, duty to maintain professional independence, duty of candor and honesty, duty to maintain professional communications with the court, a duty of not abusing the court and a duty of restraint from insensitive and illegal media communications.

Findings from the analysis of the case

Having analyzed the case presented before the court based on the facts as obtained by LPCC, I made the following findings. One, it is not clear that Amy’s mother died as a result of a breach of any of the ethical duties of lawyers, especially Madam Rigaud's lawyers. Two, Clennam breached his duty of confidentiality and duty of honesty. Three, the lawyers obeyed their duties of ensuring the court handles the case expeditiously and with care since no single lawyer mislead the court of law. Four, that generally speaking, the lawyers respected their duties to the best of their ability and that the damages paid by Madam Rigaud were not as a result of the mistakes by the lawyers but rather as a result of her misunderstanding of the proceedings of the court.

Conclusion and Recommendations to PLCC

The Legal Practitioners Act of 1981 created the Practitioners Legal Complains Committee ( PLCC) to maintain highest professional standards in the legal profession. The same act mentions specific complaints against lawyers which can be dealt with by the committee. These complaints include complaints about: overcharging, unpaid accounts, delay, negligence, handling money and trust accounts, conciliation by the LPCC, unsatisfactory professional conduct and professional misconduct and negligence ( Allsop, James 770).

In the light of the facts presented and the findings thereof, the recommendations to LPCC include the following. One, throw away the allegation of Amy that her mother’s ‘early’ death was caused by the breach of duty or duties by any of the lawyers on the ground of insufficient claim. In that regard, Amy’s claim remains just a mere allegation and nothing more. Two, charge Clennam with negligence and a breach of the duty of confidentiality. Three, charge Flora with a breach of duty to honesty to other practitioners by attempting to use, in the court of the law, information obtained unfairly and which would, upon introduction in the court of law, prove to violate the confidentiality of a client as was found in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, [108]-[111] (McHugh J).. Finally, clear all the other lawyers for carrying out their legal duties without any breach of duty in as far as legal ethics is concerned.

Works Cited

Allsop, James. "Professionalism and commercialism: conflict or harmony in modern legal practice." The Australian Law Journal84.1 (2010): 765-774.

Chamberlain v the Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148

D’Orta-Ekenaike v Vicoria Legal Aid (2005) HCA 12; (2005) 223 CLR 1, ( 111)-(113)

Drinker, Henry Sandwith. "Legal ethics." (1953).

Giannarelli v Wraith ( 1988) HCA 52; (1988) 165 CLR 543, (11), (12), (31)

Legal Services Commissioner v Mullins [2006] QLPT 012; LPCC v Fleming [2006] WASAT 352; (2006) 48 SR (WA)

Legal Services Commissioner v PFM [2013] VCAT 827, [144]

LPCC v Fleming [2006] WASAT 352; [2006] WASAT 352, [70]

Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, 561 U.S. 247, 177 L. Ed. 2d 535 (2010)

Rondel v Worsley (1969) 1AC 191, 227 (HL)

Thomas, James B. "Judicial Ethics in Australia." (1988).