Legal Ethics Research Paper

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Abstract

Legal ethics has now become more and more important in the last 20 years or so. This entry will look at incidences and cases when legal ethics was essential or used in resolution of issues and will define the term in both its individual and national contexts. It will also look at sanctions, rules, policies, and some statutes. In addition, the entry will attempt to give the reasons for the existence of legal ethics and the efforts made in different countries to curtail its breach(es).

Introduction

Technology having made leaps and bounds in the last several years, information is now at most peoples’ fingertips, and access to the Internet because of its speed and ease has produced a world which some would say is lacking in reflection. This technology has also made occurrences in one part of the world available almost immediately to all other areas, and there is not much which is hidden or unknown as was the case when communication was either verbal or written in letters which took weeks to get from one part of the globe to the next.

Law and the cases which have great impact on one’s life are known by persons in countries as far flung as India, the USA, countries on the continent of Africa, and the Latin American and Caribbean countries. What is even of more import is the fact that there are pacts and treaties between nations, and legal practitioners also can be qualified in several countries – or in places like the USA – in more than one state. The collaboration and cooperation thus produced make it essential that ethics be practiced, and examples of this would be the declarations signed to by countries which are members of the United Nations formed to aid international and global peace and cooperation.

But legal ethics also refers to the individual practitioner and his/her conscience and means different things in different countries; it is practiced differently at times and has different sanctions.

For years – since time immemorial – there has been distrust of lawyers who were sometimes seen to be filling their pockets at the expense of their clients.

Below first are some definitions which are essential to a full understanding of legal ethics and its importance and why it came about.

Definitions

There are sometimes conceptual clarifications needed for some of these words which are to be used in this entry – even “law.”

It is a body of rules for attorneys and civil society and which can be enforced – or ought to be.

However, there is no one definition or interpretation as can be seen by the various states in the United States of America (USA). The differences are often so varied that an American attorney moving from one state to the another has to do the bar exam for the state to which she/he has moved. The recent case in Florida involving a concept called “stand your ground” – a concept which some people still do not understand – is one such example. As of 2014, not all states acknowledge the legality of homosexual marriages, and there is lobbying to change this.

Therefore, laws can be changed. Laws can differ. Precedents can be set and also overturned and every good attorney ought to apprise himself of what is good law at that particular moment.

The only binding law in the USA is the Constitution and even this has been open to interpretation. Within the last year, there has been some controversy as to the meaning of “the right to bear arms” with some saying that it means all Americans and others saying that at the time the Constitution was written, this referred to the country’s right to defend itself and to the military in general. Below are some examples of “the law.”

The Common Law

As a consequence of the Commonwealth – when “Britain ruled the waves”– about one third of the world uses the common law. Countries as varied and far flung as India and Jamaica use this because they were – some still are – members of the Commonwealth of Britain. Even the USA has based much of its law on the common law. Reference is often made to the same cases as those used by the Commonwealth countries.

The common law is also called “judge-based law” and consists of cases and decisions which the various judges make in individual matters before them. The practice is for the judges to cite similar cases and refer to them as an aid when making summations and judgments and, when there are none, to set a precedent which then can be followed.

The Civil Law

This is comprised of those laws or statutes which are drafted by and agreed to by governments. These tend to be laws to make civil society more controlled, and one usually knows what the outcome of these laws will be when breached. Simple examples would be ones like road traffic laws, laws governing the buying and selling of land, and so on. Along with this come the rules and regulations and methods of procedure.

There is one peculiarity worth mentioning about the civil law, however. It is usually between what is termed “party and party,” and thus, if there will be no breach of a government rule or statute, the parties involved can agree to almost anything between themselves. For what is called “consideration” – what one party gives to the other for something obtained – a Mercedes can be sold for one dollar, for example.

Equity

Where it is felt that the common law would produce an outcome that would be too harsh, one can go to a court of equity. A great believer in this was the late Lord Denning – an exceptional British jurist – who died in March 1999 at age one hundred and who was sometimes accused of deciding what outcome he wanted and then of using the law in such a way as to attain it. He said he looked always to serve justice even if it sometimes meant putting the cart before the horse.

Fairness and justice are at the base of equity. One of the concepts of British law is that if there is a conflict between law and equity, equity prevails. This is very close to ethics with its concepts of justice and fairness. One, however, has to “come to equity with clean hands.”

In the thirteenth and fourteenth centuries, equity came into being and was based on pleadings to the King (of England). Eventually, even the USA recognized this. Article 111 of their Constitution, Section 2, clause 1 says: “Judicial power shall extend to all cases, in law and in Equity.”

The Criminal Law

This is the type of law which is most controversial. One major reason is that one is found “not guilty”– not “innocent”– as in the famous case of O. J. Simpson, accused of killing his wife in the USA, when the verdict was handed down on October 3, 1995. The famous statement “If the glove does not fit, you must acquit” came from this. The standard for finding someone guilty in a criminal trial is “beyond a reasonable doubt,” and he was acquitted as the jury could not be sure, given that the gloves did not fit, that he was guilty as charged. Criminal law most often has a jury of one’s “peers,” and cases are cited by the sitting judge as guides and the judge is bound to inform the jury that she/he, the judge, is the judge of the law and they, the jury, the judge of the facts.

As was said above, the “law” can be interpreted differently and have different outcomes, and so, the Brown and Goldman families (relatives of the deceased in this case) brought a civil case against him and sued O. J. Simpson for damages of $40 million dollars. The standard in a civil trial being a lesser one – “a preponderance of evidence” – he was then found guilty on February 6, 1997, and had to pay.

Law and ethics have several things in common and one of them is the principle of fairness and justice. One will see below whether these ideals are always attained.

Ethics

Given the above, one needs to now see the types of ethics which would apply or why there is something called legal ethics. The law, like ethics, deals with more than one person. When one associates ethics with good and bad, one tends to be speaking of an action done by one person and which reflects the values of that person and his or her personal morality.

Unlike morality, ethics is relational and deals with how one conducts oneself vis-à-vis others.

Some of the aims of the Universal Declaration of Bioethics and Human Rights (UDBHR) – adopted by acclamation in September 2005 by the General Conference of UNESCO – indicate this:

The first aim would be

To guide the actions of individuals, groups, communities, institutions, and corporations, public and private

To promote respect for human dignity and protect human rights, by ensuring respect for the life of human beings and fundamental freedoms, consistent with international human rights law

There are eight (8) ethical theories, and for the purposes of this entry, although all are relevant, three (3) would particularly apply: consequentialism, principlism, and some aspects of Kant’s deontology.

Principlism

At the core of this ethical theory is the concept of four basic principles: respect for autonomy; beneficence, i.e., doing good; non-maleficence, i.e., not doing harm; and justice.

Consequentialism

Consequentialism was first used as a theory concerning responsibility but is now used in relation to right and wrong. Elizabeth Anscombe, in an article in 1958 entitled Modern Moral Philosophy, first used it as the view that an agent is equally responsible for the intended as well as the unintended consequences of an act – “virtue ethics.”

This is also used as the view that an action is right if and only if its total outcome is the best possible.

The “consequence” whatever the meaning of the various views is the main emphasis and some go so far as to extend it to obligation or duty.

This is quite similar to the concept of duty in law. “And who is my neighbor” and to whom does one owe a duty? Lord Denning said it was the man on the Clapham bus (the ordinary man) – Clapham being a part of London – and liability is often determined by whether the unintended consequences of an action are/were “foreseeable.. ..”

Kant’s Deontology

Immanuel Kant was an eighteenth-century German philosopher. Briefly, his ideas were reason based and he felt that the more rational the behavior, the more ethical it would be. His theories were based around established rules and guidelines, very much as the law ought to be.

Legal Ethics

This is a philosophical concept. It refers to the minimum standard of conduct within the legal profession and to the norms which rule that which is/ought to be practiced by judges and attorneys.

Legal ethics encompasses most of the standards which are expected from a member of the legal profession.

One of the most important – and which will be dealt with in a fuller nature later – is that of confidentiality. This is supposed to be the most important fiduciary duty which a lawyer can owe to his/her client. Some take it to the extreme where even after the death of the client, nothing is revealed, or as has sometimes been said, one does not even reveal who is the client in case someone has something against that person and is on the lookout for him. Other attributes which form part of legal ethics are honesty, truth, and respect for the person – even the accused or especially the accused.

One of the complications with legal ethics lies right here. The attorney owes a duty both to his/her profession – she/he took a vow, at least in

Commonwealth countries – to “demean” himself/herself in the practice of the law and ought always not to lie to or deceive the court. But this has to be balanced against the duty to the client and can at times – especially for defense attorneys – present what seems to them to be an insurmountable problem. Recently in Jamaica, where lawyers are now asked to acquire twelve (12) credits in ethics per annum, some lawyers are protesting a government dictum that the lawyer should ask his client from whence came his funds and can be found liable if these funds were not acquired legally. Here, one has an example of the torsion/tension between the duty to the government and the duty to the client, and this puts, some think, too much of a burden on the attorney who is then expected to report on his client – a grave breach of confidentiality.

Whatever the definition, there is no one standard and this makes it difficult. One keeps returning to the USA because of the differences in state law, federal law, and the Constitution. But most agree that DUTY is of utmost importance, whether it be Anscombe’s version or Kant’s deontology or a merging of the two even though Kant’s has a slightly Machiavellian feel to it. This is not a negative statement. One says this because of its emphasis on rules and stability and because there is the feeling that the end – if it is good – justifies the means. Kant’s deontology is often used in the health sciences.

Aristotle was one of the first to study ethics and for him it was not merely morality nor the religious but something for the common good.

One of the major issues which need to be mentioned is that the law can be and is more often than not enforced. There are sanctions and one knows that if one breaches the law, there is the possibility of being punished.

The difference with ethics is that there are not always sanctions and one can behave quite unethically with no adverse effects. As a result of this, many professions have developed codes and rules for practice, and so we have medical ethics, research ethics, and so on.

Reason For Legal Ethics

For years, there has been, in several circles and countries, a mistrust of lawyers who are often viewed as persons looking out for their own good. Although this sounds harsh, there is good reason for this as bar associations ironically have disbarred, suspended, and sanctioned their colleagues when clients have complained with good reason. This, of course, is not limited to the legal profession, but since some cases have gained international attention, the legal profession is always under scrutiny.

In recent times in particular, there have been some verdicts which have seemed to go against all that which is rational, and the onus has now been more and more on the judges in summation and on the lawyers to present that which is true and fair, i.e., ethical.

Some Attempts To Enforce Legal Ethics

There is the concept of “recusing oneself.” Simply put, this means that one removes oneself from a matter if there is even the slightest possibility of there being a lack of impartiality or the appearance thereof.

For example, if a judge is personally known to the accused or to the claimant, it is expected that although this is a professional who has reached one of the highest levels of the profession, she/he will mention this nexus and ask to be taken off the case. This is considered ethical as justice is not only to be served but to appear to be served.

Further, if a judge is known to have very strong feelings on a particular matter, then that judge would not be asked to preside.

There is also the matter of a conflict of interest and the very real difficulty of separating one’s personal or religious views from the matter at hand. If a legal professional has financial interest in a company which is before the court, then that ought to be declared.

It can take days to finalize a jury because each side has the right to ask questions to determine if the decisions will be based on an impartial assessment of the case and the concept of justice and fairness – ethics – or if the juror would have determined his decision even before a case has begun.

One might well ask why the behaviors cited above are of relevance, and the answer would be that the law is, as said, there to protect the rights of individuals as they exist in society – as is ethics – and that each person is entitled to certain aspects of those rights which include privacy; lack of harm; justice, fairness, equality, and equity; and all the other aspects of ethics mentioned in the seventeen articles of the UDBHR. Below are some more examples to ensure that law and ethics coincide and to show how efforts are made to minimize breaches.

Chinese Wall

Occasionally, lawyers refer to some things as “legal fictions.” A Chinese Wall is for some just that. An example is this: an attorney ought not to represent two persons who are in disagreement. It ought to be obvious that there will be many difficulties in being fair to either. But it does not stop there. It is felt that ethically, one ought not to represent Mr. X if one had represented Mrs. X in recent times as much of what had been said in one matter might influence how the other matter is dealt with. (Please note that this is a term used in law but the concept rears its head in other professions. Psychiatrists do not like to represent a member of a family if they had been dealing with another member within a certain time frame. The reasons are self-explanatory.)

So the Chinese Wall usually means that the files for the previous person are kept away from the lawyer dealing with the current client. But there are those who feel, and perhaps rightly, that this does not really work and is not ethical. Hence, it is a fiction. But it is an attempt at fairness to the clients who seek legal redress.

The three (3) cases below indicate ethical issues, ethical decisions, and breaches of the substance of what is legal ethics or even ethics in general.

Commonwealth Bank Of Australia And Anor V Smith, R And ANOR 1991 (Case)

(Queensland Law Society, Ethics Centre. ‘ethics. gls.com.au’)

Some of the main aims of ethics have to do with social responsibility, privacy, dignity, human rights, duty, equality, justice, and equity inter alia and have been mentioned above. This case has to do with a conflict of duties and responsibility and indicates as do the two below what is meant by legal ethics and how it can be breached. It is an excellent learning tool as well.

While it is true that the extent of the duty depends on the particular case, this was also a conflict of interest and a lack of full disclosure. This led to equitable compensation.

The bank cited above was approached by one of its clients about purchasing businesses from someone who was also a client of the same bank. They were not told.

The remarks in the judgment are relevant:

• The duties are primarily contractual and depend on the express or implied terms of the retainer received.
• We [as lawyers] owe a duty of single-minded loyalty to our client’s interest.
• At the core of this duty of loyalty is the obligation to avoid situations where duties owed to different clients come into conflict – this brings us right back to the “Chinese Wall” and a consideration whether this is ever possible.
• The main part of the judgment, however, is that where a conflict arises which cannot be cured by informed consent, one has two duties: one to inform that one cannot act, i.e., to recuse oneself (op cit), and the other to advise the client that they should seek legal advice elsewhere. This latter duty in the view of Lord Walker of Gestingthorpe at paragraph 32 of Hilton v Barker Booth and Eastwood, 2005, 1 All ER 651, was what would fully discharge the duty owed to the client.

In Novartis v Union of India and Others, 2013, we have a legal case which involves several ethical issues and concerns.

One of the major ones is the availability of health care and treatment to the poorer classes who are as entitled to such as any other. As said in Article 14 of the UDBHR “.. .the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.. ..

(a) Access to quality health care and essential medicines, especially for the health of women and children, because health is essential to life itself.. ..”

The matter began in 2006 when India rejected Novartis’ patent application for Glivec – a drug used in the treatment of cancer inter alia. The application had been made from the late 1990s but India only became a signatory to the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement after it began to examine the patent in 2005.

This legal battle has been watched by the legal profession and countries as it unfolded because of the implications. It included IP rights, health related matters, and perhaps most importantly the production of cheaper generic drugs which could be available to poorer persons worldwide.

India, one of the world’s largest producers of generic drugs and known for the use of essential herbs native to its country for the treatment of several diseases, has been fighting this battle with large pharmaceuticals for some time. Their main argument has been that for a patent to be granted – and this is normal in IP matters – there must be shown significant improvement over the existing drugs. The active ingredient in Glivec – imatinib mesylate – was already known and used in India before Novartis’ claim. Originality was in question.

The Supreme Court of India felt – as is the case with new patent applications – that the difference was not significant enough and that the drug had already been “disclosed” and used and could be considered an existing medicine.

India had been producing this medicine, though not in Novartis’ format, in large quantities and cheaply.

Of interest was the conflict between “big business” and high costs and public health advocates especially as companies in India would not have been able to continue to export lower-priced generics.

This fact is one which escapes many. Jamaica, for instance, has yet to sign the TRIPS Agreement because of the effect it would have on the importation of generic drugs and because Jamaica, cognizant of its ethical duty to its inhabitants, is classified as a Third World country where health costs are often beyond the average citizen who then buys less of the drug than is prescribed.

Agana Barrett V The Attorney General Of Jamaica, 1999

(Jamaica Gleaner Online, September 2, 1999, Barbara Gayle, Staff Reporter)

Agana was a 21-year-old carpenter who was arrested at 1:45 p.m. on October 2, 1992, and on October 24 at 8 a.m., was found dead along with two others, allegedly of suffocation or lack of oxygen. He had been put in a cell eight (8) feet by seven (7) feet with eighteen (18) others.

His mother was enraged as was most of the society which became aware of the inhuman treatment of prisoners, some of whom had not even yet been charged, and made civil society realize that even those suspected of crimes were entitled to humane treatment, dignity, respect, and so on.

The mother took the case to court and did not stop until she had at least got what was termed “justice” for her son, even if he was already dead.

Several of the police were indicted for inhuman and degrading treatment and the government of the day actually paid the legal fees for the mother to go to the Court of Appeals.

Conclusion

Legal ethics is becoming more and more important as the world in a very real way is “shrinking” and people are finding more ways in which to be inhuman and to display lack of temperance and temptations keep getting stronger.

There are many other ways in which this can be demonstrated and some of these have no “intent” at all. For instance, it is said that “justice delayed is justice denied,” and in some countries lacking in funds to pay an adequate number of prosecutors, cases can take sometimes over six years to come to trial. People forget details; people no longer care.

Perhaps it is also time for prosecutors to have the right to appeal.

Bibliography :

1. Zitrin, R., Langford, C. M., & Cole, L. R. (2013). Legal ethics in the practice of law (4th ed.). Lexis Nexis.
2. David, L., 2007. Legal ethics and human dignity. New York: Cambridge University Press.