Lawyer-client Relationship Research Articles

Lawyer client relationship and the latest legislative changes on the obligation to report money laundering (Albania)

While money laundering continues to remain a big problem for Albania due to its link to corruption, organized crime, potential terrorist threats and the continuing informality of the Albanian economy, the latest legislative changes in this regard to the law on the legal profession in Albania interfere with the individual’s constitutional and Convention right to a defense lawyer and the lawyer-client privilege. This article tries to examine the conditions that necessitated such legislative changes, the proportionality of the interference on the lawyer-client relationship and its impact on individual’s right to a defense lawyer. The article tries to analyze and weight the importance of the special fiduciary relationship between the lawyer and his client vis à vis state’s interest in the fight against money laundering. This paper tends to address the scope of the lawyer-client privilege and a lawyer’s duty of confidentiality of communications with his client; the circumstances under which a lawyer is legally required to report suspicions on his client’s involvement in money laundering activities; the position of the lawyer in case he files a money laundering report against his client; whether the lawyer should inform his client on the report; whether the changes on the law on the legal profession affect the lawyer-client relationship in terms of protecting privileged or otherwise confidential communications; whether there are any guidelines/rules of professional conduct on the steps a lawyer has to follow in order to fulfill his obligation to report money laundering activities; whether the interference justified and whether the legal provisions in force offer sufficient guaranties for the protection of privileged information or the confidentiality of communications.

Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship

Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship

ПРОБЛЕМНІ ПИТАННЯ ЗДІЙСНЕННЯ АДВОКАТОМ МЕДІАТИВНОЇ ДІЯЛЬНОСТІ В МЕЖАХ ПРИМИРЕННЯ ПІДОЗРЮВАНОГО З ПОТЕРПІЛИМ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ

It is well known that one of the hallmarks of restorative justice is the use of mediation as an effective way of resolving the dispute. The above mentioned process proved to be quite popular in the practice of domestic lawyers, which in its turn became the basis for ambiguous practice and the need for the legislator's attention. That is why motive changes are taking place in Ukraine with the purpose of legislative consolidation of the institute. However, due to the lack of detailed legislative regulation of the basic provisions of regulation of mediation, namely - the status of mediator, regulatory secrecy of non-disclosure of client secrets, bodies of quality control of the provided services, etc., there is a possibility of abuse of the mentioned institute in the territory of Ukraine. The purpose of the article is to identify the issues that may arise in the case of the combination of lawyer and mediator roles within a single proceeding. Based on the analysis of the legal framework of domestic and international legislation, it is necessary to outline the following problems. It is argued that, to date, a major reason for the lack of active use of mediator services is the list of reasons which include both low level of public awareness and lack of legislative basis. That is why there is no proper attention to the problem of abuse of mediator status. It is concluded that the conduct of mediation by a barrister within one proceeding gives grounds for the risk of violation of the basic principles of mediation, namely – confidentiality and independence. These statements are based on the definition of difference of the professions in their nature and purposes. It is noted that a problematic issue is the fact that the lawyer-client relationship is governed by a contract for the provision of lawyer services, unlike the other party to the negotiations. This fact leads to a number of opportunities for abuse of the status of mediator and the exercise of fraudulent advocacy. It is stated the existence of a legal conflict in case of completion of the mediation procedure without result in the form of reconciliation between the suspect and the victim. It is also outlined the possibility of manipulation of the information provided by the parties in the case of a change in the role of the barrister. It has been determined that due to the retreat of the regulatory regulation of the mediation activity by the lawyer, there are no control bodies that could point out the quality of the lawyer's rendering of the above services.

Federation of Law Societies: Towards a Deeper Understanding of the Principles of Fundamental Justice

In Attorney General of Canada v. Federation of Law Societies of Canada, Cromwell J., writing for the majority, recognized a new principle of fundamental justice under section 7: a lawyer’s duty of commitment to the client’s cause. Discussion surrounding Federation of Law Societies has generally focused on the importance of solicitor-client privilege and of its significance for the independence of the bar. Relatively less consideration, however, has been given to how this case contributes to section 7 Charter jurisprudence more broadly. This paper seeks to fill this gap by exploring how Justice Cromwell’s reasons in Federation of Law Societies develop our understanding of the principles of fundamental justice. Specifically, this paper considers four insights that may be drawn from Cromwell J.’s analysis of the lawyer’s commitment to the client’s cause as a principle of fundamental justice explores, namely: (i) a principle of fundamental justice may be sub-divided into different aspects or variations of the same principle; (ii) solicitor-client privilege is not the only aspect of a lawyer-client relationship that has a constitutional dimension; (iii) this principle is distinctive as compared to previously-recognized ones, in that it is justified by engaging with a non-state actor’s role in the architecture of the legal system; and (iv) this one evades being classified as either a substantive or procedural principle.

Safe Social Spaces

What are the building blocks of safe social spaces? This Article explores this question through a case study of nonconsensual image sharing among queer populations on geosocial dating apps and makes three important and novel contributions to the socio-legal literature on social life online, privacy by design, and cyberexploitation. First, it reports and analyzes the quantitative results of a survey of queer geosocial dating app users, showing that this population is victimized by nonconsensual image sharing at far higher rates than both queer persons, generally, and the broader population. Second, combining these quantitative data with qualitative interviews with queer dating app users and responses to open-ended questions, the Article describes how these apps create powerful norms of disclosure that make it all but required that users share personal information and how users navigate their privacy as a result. Third, based on this case study and a comparison with other social environments of disclosure—Alcoholics Anonymous meetings, teams of coworkers, and attorney-client relationships—the Article argues that safe social spaces are created when norms of disclosure are balanced by equally as powerful norms of trust backed by law. The Article then shows how law plays an essential role in creating and maintaining those norms of trust and protecting users from invasions of privacy.

Legal Profession and Government Lawyers: What is the Highest Competing Duty to Act in the Public Interest?

It is assumed by many scholars that “the government attorney may have authority regarding legal matters that do not exist in a private lawyer-client relationship, including the settlement of a matter or declining to appeal an adverse decision.” Private lawyers or lawyers who do not work for the government are primarily concerned with protecting the interests of their clients, even if those clients may have been engaged in wrongdoing. However, we must analyze if government’s attorneys have a higher or a competing duty to act in the public interest. Therefore, in the first place this paper is about the difficulty of deciphering who is a government attorney client. Then it will analyze if a government attorney fails to determine his attorney-client duties because of the difficulty to differentiate the individuality of the client, if there is a risk of a breach of ethical duty. But in the bottom of all these, the ultimate question is if there is a real difference between private and government lawyers regarding the public interest argument.

Autonomy Isn’t Everything: Some Cautionary Notes on McCoy v. Louisiana

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response to McCoy, regarding the ethical obligations of defense counsel. The most important caution is that, as a matter of constitutional law and professional ethics, the preference for autonomy and the standard allocation of decision making authority presupposes a fully competent client, not a client who merely passes the extremely low constitutional bar of competency to stand trial. A client capable of participating in a fully autonomous way in the representation is far more than minimally competent. Where the client has diminished capacity to make adequately considered decisions in connection with a representation, the usual division of decision making authority within the lawyer-client relationship breaks down. The Supreme Court’s 2008 decision in Indiana v. Edwards muddles the issue considerably by recognizing a gray area between competency to stand trial and entitlement to self-representation under Faretta v. California. The self-representation right in Faretta is based on the same autonomy interests that animate McCoy. Autonomy is a capacity, and the Edwards decision questions whether a client lacking this capacity can participate in the representation in the usual way. Edwards therefore casts considerable doubt on whether autonomy should have the same priority over fairness and reliability interests in a representation involving a borderline-competent defendant. Observing that a lawyer’s decision has the effect of limiting the client’s autonomy is the beginning of the recognition of a complicated issue, not the end of the analysis. In many cases the lawyer should respect a client’s fully-informed decision regarding the representation. There will be other cases, including the representation of questionably competent clients, in which the client’s autonomy interest must be subordinated to other legal values. This ranking should not be conducted on an ad hoc basis but in a principled way. This paper therefore proposes a sliding-scale approach to autonomy and other professional values, in which the most important consideration is a balance between the importance of the decision and the client’s capacity to participate in a meaningful way in the representation. A clearly competent, well-informed client still has the right to make what a lawyer believes to be unreasonable decisions regarding the representation. However, the threshold for concluding that a client is competent and a decision is fully informed should be set sufficiently high to ensure the protection of “gray area” client and also to provide appropriate incentives to trial counsel to conduct a thorough investigation and mount an effective defense.

Paternalizm prawniczy a tożsamość polskiej kultury prawnej

The model of legal profession is one of the most important features of every legal culture and constitutional identity. The paper aims at explaining the identity of Polish legal profession according to their history and evolution of Polish political and constitutional basic ideas. The argument is that the strongly manifested element of this identity is lawyers’ paternalism. That means lawyers act to protect the interest of their clients often without an alignment or even against their clients will. This attitude toward the lawyer-client relationship is deeply rooted in Polish legal culture, especially in interconnection of two discourses. First is the egalitarian one which establishes the task of lawyers as to provide to everyone equal legal aid and to protect everyone’s rights and liberties. Second is the elitist one that tend to justify the claim that effective legal aid and the protection of right and liberties is possible only through some special abilities and skills of lawyers which not everyone could possess.

Are lawyers neurotic?

ABSTRACTThis paper reports on an ethnographic exploration of the lawyer–client relationship focusing on the attitudes held by legally aided lawyers to their criminal clients. The study combines formal interviews with participant observation in a mixed methodology approach designed to give voice to the lawyers taking part as well as allow the researcher to provide their own perspective. The research produced two quite contradictory viewpoints as lawyers claimed to hold positive attitudes of their clients in interview while presenting negative attitudes under observation. To reconcile this difference, the author suggests considering psychoanalytic literature on self-image, which can be applied to show that the lawyers may have been displaying signs of Freudian defence mechanisms and, ultimately, presented as neurotic in their practise.

Cave Pecuniam: Lawyers as Launderers

The attorney’s trust account is an enticing prospect for criminals seeking ways to launder money acquired illegally, and the attorney whose trust account is abused in this way stands to be branded and punished as a money launderer. The overall aim of the article is to identify the dangers which money launderers pose to attorneys and to highlight the need for vigilance in the face of these dangers. It analyses the anti-money laundering reporting obligations imposed on attorneys by the Financial Intelligence Centre Act and considers impact of these obligations upon the attorney-client relationship. Some of the ways in which a law practice may become implicated in the placement, layering and integration stages of the money laundering process are discussed, and cases which deal with attorneys’ involvement in money laundering schemes are presented.

ビジネス・ローヤリングにおける依頼者・弁護士関係の実態と弁護士倫理

ビジネス・ローヤリングにおける依頼者・弁護士関係の実態と弁護士倫理

コーズ・ローヤリングにおける弁護士―依頼者関係の実態と弁護士倫理

コーズ・ローヤリングにおける弁護士―依頼者関係の実態と弁護士倫理

Beyond the ‘professional project’: The political positioning of Hong Kong lawyers

This article examines the factors underlying the political positioning of lawyers in Hong Kong. It responds to contemporary debates on the sociology of professions by arguing that the ‘professional project’ – which sees social status and market monopoly as the profession's primary goals – cannot fully explain lawyers' political behaviour under state-society dynamics. Hong Kong's case is particularly instructive. Ethnically Chinese, yet practising British common law, Hong Kong saw its sovereignty shift from Britain to China on 1 July 1997. The ideological difference between its two branches of legal professionals – barristers and solicitors – has since become more apparent. With reference to cause lawyering, this article highlights the roles of political ideology, the nature of the lawyer-client relationship and legal education in shaping the political orientation of lawyers. It offers insight into how Hong Kong's legal profession must constantly negotiate with a regime that has not traditionally championed the rule of law.

LEGAL REVIEW OF APPARENT ADVOCACY IN IRANIAN LAWS

Apparent advocacy is one of the main components of appearance theory. The importance of apparent advocacy is evident since lawyering or advocacy has a great importance along a significant role in facilitation of legal relationships. Individuals can benefit from lawyering entities in the sense of making personal contracts by using representatives. Lawyering plays an important role in terms of facilitation of transactions and contracts. In fact some peoples’ job is to make contracts while representing other individuals. The rules and regulations of advocacy have been set in support of individuals in order to make people motivated towards interacting with lawyers so that this entity is able to play its role in flow of capital and boom of trades. In other words, the domain of advocacy must take a step further than the sole lawyer-client relationship and instead, its sentences should be redistributed based on supporting social trust. An interesting solution for creating trust towards lawyers amongst the public is supporting for legal trust in credible appearance which is followed by apparent advocacy. This paper elaborates on concept, instances, and conditions of realization and impacts of apparent advocacy. Article visualizations:

Child Abuse And Neglect: Mandatory Reporting and the Legal Profession

Child abuse and neglect affects approximately 42 500 children in Australia each year. Parliaments in all Australian states and territories have introduced mandatory reporting into child protection legislation to protect vulnerable children by requiring certain individuals to report suspicions of abuse or neglect. However, lawyers are prevented from reporting because of the rules governing legal professional privilege and confidentiality. This article begins by examining the problem of child abuse and neglect in Australia and outlines the current legislative framework of mandatory reporting laws in Part II. Part III discusses the current rules governing lawyers and examines legal professional privilege and the duty of confidentiality. Part IV provides arguments for and against requiring lawyers to report suspected abuse and also considers the lawyer-client relationship and the special position of domestic violence victims. Part V offers recommendations for the proposed legislative reform. This article concludes that lawyers should be required to report child abuse and neglect.

The Frightening At-Issue Exception to the Attorney-Client Privilege

The attorney-client relationship is understood by lawyers and the public to be infused with confidentiality, and the attorney-client privilege, which is essential to this sensitive and important relationship, is much revered. As vital as it may be, however, the attorney-client privilege is narrowly construed, laden with exceptions, and easily waived. On the theory that the attorney-client privilege is intended for use as a shield and not as a sword, it may be lost if a litigant asserts a claim or defense that requires inquiry into the litigant’s privileged communications with its lawyer to fairly rebut or refute. This principle is commonly described as the “at-issue exception” to the attorney-client privilege. The at-issue exception represents the most frightening type of privilege forfeiture because the law does not clearly warn clients of its risk and because lawyers may not realize its effect in time to avoid calamity. For this reason, lawyers must understand courts’ analysis and application of the at-issue exception. This article advances that process. In doing so, it carefully examines and critiques the three principal tests courts use to decide whether the at-issue exception applies, and discusses several types of cases and circumstances in which lawyers seem especially prone to missing the serious threat to the attorney-client privilege that the at-issue exception potentially poses.

Ethics in Pro Bono Practice

There has been much academic debate about the ethical desirability of the profession to engage in pro bono work. This paper considers the connections between legal work which is performed pro bono publico and the concept of professionalism. It then considers the importance of the establishment of the lawyer-client relationship in a pro bono situation, and various practical realities of operating a pro bono file. The paper argues that the ethical framework within which lawyers operate is equally relevant when legal practitioners are performing work for no fee, and refers to some of the specific duties which can be particularly relevant including the duty to obey instructions and the duty to continue to act. Consideration is also given to the entitlement to costs (in Australia). The paper concludes by suggesting that lawyers have a tendency to look to the “Rules” for answers in relation to ethical dilemmas, but there are no specific rules for pro bono work. There is no definitive list that states what is the right or wrong thing to do. Ethical reasoning can only ever derive from a consideration of what is fair and just in the circumstances, regardless of whether or not the client is paying you.

Representing Clients with Mental Health And/Or Cognitive Impairments in Treatment Courts

This white paper, prepared for the American University School of Public Affairs’ Justice Programs Office, is meant as a guide for lawyers representing clients with mental disabilities, especially in the context of drug courts. It argues that the task of improving the skills level of defense counsel in this representation of persons with mental disabilities in drug courts has to be approached simultaneously on two parallel, interlocking tracks:1. Education about mental disabilities and their impact on defendants in the criminal justice system, especially those in drug courts, and2. Education about those factors that contaminate the entire criminal justice process: sanism, pretextuality, heuristics, and the use of false “ordinary common sense”.Unless the second track is included, education – standing alone – is not a sufficient predicate for systemic meaningful change. In this paper, I discuss (1) the appalling statistics as to the percentage of persons in the criminal justice system who have a mental disability (including psychosocial disabilities [commonly referred to as “mental illness”] and intellectual disabilities [previously referred to as “mental retardation”]), (2) the key definitional criteria as to some of these disabilities, (3) some key factors to consider in how these disabilities are significantly different (although they are all too often commingled by judges, jurors and lawyers) from each other, and (4) some of the areas of criminal defense practice in which the presence of one of these disabilities is critically important. Lawyers must understand that a client’s mental health and cognitive impairment matter at every stage of the lawyer client relationship, from the first meeting to case strategizing to the plea/trial decision to the sentencing process and beyond, and must take seriously the full range of legal issues and behavioral issues that are presented. These issues include (1) the omnipresent “fear of faking” that plagues this system, (2) the impact of prescribed medications on client behavior and interaction with counsel, and (3) the likelihood of undiagnosed or misdiagnosed disabilities, I argue that it is critical that defense lawyers understand the differences between different disabilities, and how these differences may be critical in the representational process, whether the case involves the incompetency status, insanity defense, mitigation in a death penalty case, mitigation at sentencing, diversion to a problem-solving court, or, simply, as part of the entire “toolkit” that a lawyer brings to the representation of a “regular” criminal case in the context of plea negotiations or trial.

Ethical implications of third-party funding in international arbitration

This article describes the phenomenon of third-party funding with a particular focus on its impact on the arbitral proceedings. After a general description of what third-party funding is and how it works, the article examines the possible implications that third-party funding may have on both the attorney–client relationship and the independence and impartiality of the arbitral tribunal. Since the involvement of a third-party funder may create different situations of conflict of interest for the arbitrators, which in turn may affect the entire arbitral proceedings and the final award, the article suggests that the disclosure of the existence of a third-party funder in arbitration is an essential step to safeguard the fairness and transparency of the arbitral process. A comparison of the advantages and disadvantages of such disclosure is offered, together with a proposal on how such duty to disclose should be articulated. The article concludes with an overview of the current status of the regulation of third-party funding in international arbitration, and with some thoughts about the desirability of a more accurate regulation of this important and constantly increasing phenomenon.

Estate Planning Malpractice: Is Strict Privity Here to Stay?

Under Maryland case law, a plaintiff in an estate planning malpractice action must be in strict privity with the attorney who drafted the will. To date, Maryland has not extended the third-party beneficiary exception to the estate planning arena.Legatees specifically identified in a will by name or class are generally precluded from bringing a cause of action against the attorney for the attorney's alleged negligence, because in Maryland in order to recover for legal malpractice, a plaintiff must:show: (1) the attorney's employment; (2) his neglect of a reasonable duty; and (3) loss to the client proximately caused by that neglect of duty. See Noble v. Bruce, 349 Md. 730,739 (citing Flanherty v. Weinberg, 303 Md. 116,128 (1985); see also Bradley Fogel, Attorney v. Client - Privity, Malpractice, and the Lack of Respect for the Primacy of the Attorney-Client Relationship in Estate Planning, 68 Tenn. L. Rev. 261,267 (2001).Maryland is in the minority of states that still adhere to the strict privity rule in the context of estate planning. Most other jurisdictions have relaxed the privity barrier in order to allow a legitimately aggrieved beneficiary to have a means of recourse against an attorney who planned the distribution of the decedent's estate in a negligent manner. Other jurisdictions following strict privity, have carved out the third-party beneficiary exception in the estate-planning context-where the attorney's negligence was facially demonstrated on the will itself. See Hamilton v. Needham, 519 A.2d 172 (D.C. 1988).