The Ethical Obligations of a Lawyer

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Table of Contents

Introduction
The duties of a lawyer and exiting regulations
Application of the four theories
Conclusion
Bibliography

Introduction

This guidance note is aimed at examining the obligations of a legal professional in those cases when he/she detects an error in the statement made by an opponent. The note will be based on the common law, existing Australian legislation, and the current codes of practice adopted by barristers and solicitors. Furthermore, this discussion will involve the application of the four ethical theories describing the duties of a legal professional. The proposed guidelines will partly respond to the case Chamberlain v Law Society of the Australian Capital Territory. In particular, one should focus on the situation when an opponent makes a significant mathematical error in the official document which enables a solicitor to advance a client’s interests. Nevertheless, the proposed recommendations will be relevant to various cases when a lawyer may take advantage of the errors committed by the opponent. These issues can be related to various forms of litigations. The key task is to reconcile the duties to the client and ethical obligations; yet, this task is often quite challenging. Overall, it is possible to argue that legal professionals should not make use of these mistakes since they can undermine public’s trust in the system of justice and the work of legal professionals. Additionally, such behavior contradicts professional regulations.

The duties of a lawyer and exiting regulations

The ethical obligations of a legal professional are derived from three important sources; in particular, one should speak about legislation, common law, and current codes of practice. At first, legal professionals should refer to the case Chamberlain v Law Society of the Australian Capital Territory since it highlights the importance of ethics and social responsibility of solicitors. To a great extent, it will serve as the starting point for this guideline. According to the decision of the court, a lawyer, who has failed to notify the opponent about his/her error, is guilty of professional misconduct. This argument is particularly relevant to those situations when this legal professional takes an unfair advantage of this error. Furthermore, this case implies that a lawyer should be given a reprimand; nevertheless; he/she cannot be suspended for this behavior. Overall, situations are often left to the discretion of a legal professional. Nevertheless, this case lays stress on the idea that integrity should be one of the core values for solicitors and barristers. This argument is supported by scholars who examine the core moral duties of barristers or solicitors, and integrity is one of them. Moreover, the compliance with ethical norms is one of the professional competencies. The main complexity is that the outcomes of such situations depend on the subjective perceptions of a lawyer who has to evaluate his/her decisions from an ethical viewpoint.

Additionally, it is important to refer to the provisions of the Civil Procedure Act adopted in 2010. One of them includes the requirement to act honestly. This rule can be applicable to the interactions with colleagues, including opponents. This standard implies that it is important to inform the opponent about his/her error. There is also a requirement not to mislead other people, but the failure to tell other lawyers about their mistakes is not necessarily a form of deception. Additionally, one should keep in mind that according to the Legal Practitioners Act 1970, legal professionals can be deprived of their professional status, if they are found guilty of unfair conduct. The main limitation is that such situations are not explicitly described in these legislative acts and there are no provisions that can tell how solicitors or barristers should act if their opponents make significant errors. This is one of the reasons why the Legal Practitioner Act was eventually repealed. This is one of the issues that one should take into account. Still, such situations are critical for preserving the reputation of lawyers as well as the organisations that they represent. It should be mentioned that current efforts of policy-makers are aimed at creating the framework for internationalisation of many areas of law. In turn, the failure to inform other legal professionals about their errors can undermine the interactions between different business partners. Therefore, one should not try to make use of the technical errors that other solicitors could commit.

Furthermore, it is possible to mention the statutes regulating the work of solicitors and barristers. Overall, the code developed by the Australian Bar Association, contains a set of provisions that identify the duties of a barrister to the opponent. In particular, according to these provisions, a barrister should avoid making false statements and correct them as soon as he/she understands that these statements are wrong or misleading. Moreover, he/she should rectify the errors made by the opponent. Admittedly, it is possible to find a loophole, because a lawyer may argue that he simply did not notice it. This person can shift the responsibility onto the solicitor or barrister who made the mistake. This is one of the drawbacks that should not be disregarded. Still, there are other important requirements which should not be overlooked. In particular, a barrister should not act in the way that can undermine public confidence in this legal profession or the entire administration of justice. This is one of the major requirements that should be taken into account. In turn, by trying to take advantage of such mistakes, a barrister can violate this requirement. Similarly, the solicitors should tell the opponent about the mistake about an error that he/she could have committed¹⁵. Overall, these self-regulations play a critical part in the evolution of legal profession.

Overall, in this case, it is possible to identify several options that are compatible with ethical principles. In particular, a legal professional can clearly inform the opposing attorney about the mistake. For example, this lawyer should know that he/she has made a significant mathematical error that could infringe on the interests of the other client. Additionally, a legal professional, who has to deal with such a situation, can tell the opposing lawyers that they should review their written statements. Additionally, a solicitor should ask their opponents if they are certain about the legal claims that they make. Such actions are important for meeting the ethical obligations of solicitors or barristers. More importantly, these steps are necessary for retaining the trust of the public.

Application of the four theories

One can apply several theories that are supposed to describe the role of a legal professional. For one can consider the so-called adversarial advocacy. According to this framework, lawyers are expected to exploit every legal loophole, take advantage of opponents’ errors, and interpret the letter of the law in a way that can best support the interests of clients. In turn, a solicitor should comply only with the existing legal norms; nevertheless, he/she does not have to consider ethical standards that are not explicitly imbedded in common law, professional regulations, or various legislative acts. If a lawyer adopts this approach, he/she should make use of an opponents’ mistake or an error made by the other party. There is no requirement to consider ethical obligations to the opponents. Admittedly, this model lays on the promotion of clients’ interests. The chosen strategy can enable a solicitor to protect a clients’ assets or avoid a time-expensive lawsuit. This is one of the advantages that should be considered. Nevertheless, this theory completely excludes such a notion as social responsibility of a lawyer; yet, ethical duties to various stakeholders are discussed as the component of professional behaviour. Furthermore, the use of this approach can undermine a person’s trust in the integrity of lawyers. In the long term, the use of this model can endanger the interests of many clients, especially in the long term. Overall, this negligence of social responsibility is one of the reasons why this profession is often criticised by various community members such as journalists. Furthermore, the ethical dilemmas can be imbedded in the work of solicitors, even though such situations are not fully codified.

This concept of an adversarial warrior can be compared with other models depicting the obligations of a person. For example, one can mention the notion of a responsible lawyer which implies that a legal professional should primarily act as the representative of the legal system. Therefore, he/she has an overriding duty to maintain the integrity and justice of the court system even against the interests of the client. This model sets a high ethical standard for the work of lawyers. Therefore, this person should immediately notify the opponent about the error that could have been made. More importantly, it is not permissible to take unfair advantage of other mistakes. Thus, one should immediately tell the other lawyer that he/she could have included false data in one of his/her statements. It is not permissible to take unfair advantage of such mistakes. Nevertheless, this strategy can contradict the duties of the client to advance the interests of clients.

Apart from that, one should consider moral activism according to which a lawyer should make sure that the system of justice can serve the welfare of the community. Additionally, this professional should urge clients to act in a moral way. This theory also implies that a lawyer should not focus only on the letter of the law without considering the interest of other people. More likely, this individual should emphasise the spirit of the spirit of the law and consider the importance of social responsibility. This person should also protect those people who can be marginalised due to some reasons. Therefore, one should not take unfair advantage by failing to inform the opposing counsellor about his/her error. More importantly, this theory implies that the legal mistakes should be identified as soon as possible. These are some of the principles imbedded in this theory.

Finally, it is necessary to apply the ethics of care. This model implies that the activities of lawyers should be aimed at serving the best interests of clients, as well as other stakeholders, in a holistic way that incorporates the emotional, moral, and relational dimensions of a problem into the legal solution. Much attention is paid to the relations between people rather than the role of social institutions. In turn, by withholding the information about the mistake made by an opposing attorney, one can undermine the social role of lawyers and prompt people to develop negative attitudes towards the representatives of this profession. Furthermore, this policy can deprive legal professionals of their moral worth.

In this case, it is possible to combine two theories such as the concepts of responsible advocacy and ethics of care. Both theories imply that a solicitor should not withhold information about a mistake made by the opponent. At least, it is vital to ask the other solicitor to review the written claims that he/she makes. This action is quite compatible with the idea that a lawyer should also act as the representative of the justice system. Additionally, the person should tell the client that such an action is critical for retaining the credibility of the lawyer. Moreover, the failure to rectify this error can tarnish the reputation of the client. This argument is partly based on the ethics of care. Finally, these issues should be reflected in the work of educators who should focus on the ethical dilemmas faced by attorneys.

Conclusion

On the whole, this examples suggest that the professional integrity of a lawyer is one of the key elements emphasised in different sources of law. By trying to achieve one’s objectives at any cost, a lawyer can tarnish his/her professional reputation and even harm the interests of a client who may be viewed as an unscrupulous individual. Furthermore, the application of four ethical theories indicates that integrity is a vital element for the work of legal professionals. In this case, several options are available. In particular, the lawyer can explicitly state that the other solicitor must have made a significant error. Furthermore, a solicitor can state that the written statements made the opponent can be inaccurate or false.

Bibliography

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Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 776 (1993)

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