Ethics Of Lawyers Research Articles

Guantanamo Bay and the Conflict of Ethical Lawyering

The Guantanamo Bay military commissions have been the subject of intense national and international debate since they were announced months after the September 11th attacks. This important debate largely has focused on the perennial tension between liberty and security on the one hand, and the somewhat technical legal questions regarding the constitutionality of prescribed procedures on the other. As significant as these issues are, the discussion has generally ignored an element of the military commissions that profoundly shapes how national security, civil liberties, and the experience of criminal justice actually occurs: the way that the lawyers charged with prosecuting and defending these cases pursue their professional duties as lawyers.This Article undertakes that analysis. To do so, it looks to the unique institutional identities, organizational context, ethical obligations, and professional incentives that shape and are shaped by participation in the Guantanamo Bay military commission system. This analysis is important not just as a framework for understanding the troubled history of the commissions, nor only as an interesting case study of organizational dynamics and identity theory. Rather, a close look at the institutional identities, ethical obligations, and professional incentives of the military commission lawyers reveals that the military commission system is in desperate need of reform not simply on the basis of constitutional concerns, but on the basis of legal ethics.This Article argues that the institutional identity of the JAG lawyers who operate the military commission system influences these lawyers’ response to the challenging ethical issues and professional pressures inherent in terrorist prosecution before a military commission. This analysis – based in part on interviews with JAG and civilian prosecutors and defense attorneys – documents a problem not yet addressed in the scholarly discussions of military commissions: that the commissions are structured such that JAG lawyers, a group institutionally identified with the highest standards of ethical conduct, are effectively discouraged from adhering to those standards. While the courts-martial system in which these lawyers generally operate is not without its own ethical pressures, the unique dynamic present within the commission system effectively discourages the type of ethical conduct these lawyers have traditionally viewed as their highest priority, including zealous representation of clients and the impartial administration of justice. This Article documents the pressures faced by the commission lawyers and their causes, foremost among which is the highly politicized nature of the commission system. Recognizing and understanding how these often subtle pressures act in the military commission system is important because, taken cumulatively, these pressures increase the likelihood of conviction in ways that procedural reforms at the focus of academic, congressional, and executive debates have not addressed.

Legal Ethics and the Media: Are the Ethics of Lawyers and Journalists Irretrievably at Odds?

Descriptions of the relationship between lawyers and journalists range from ‘uneasy’ and ‘sometimes prickly’ to ‘strained and often combatant’. This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of both lawyers and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles that guide lawyers’ interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist’s lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public. This the pre-edited version of this article published under the same title in 'Legal Ethics', Volume 15, Part 1 (Hart Publishing, 2012) which has been published in final form at: Ingenta Connect

Legal Ethics and the Media: Are the Ethics of Lawyers and Journalists Irretrievably at Odds?

Descriptions of the relationship between lawyers and journalists range from ‘uneasy'1 and ‘sometimes prickly'2 to ‘strained and often combatant’.3 This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of both lawyers and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles that guide lawyers’ interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist's lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public.

Professionalism and Matthew Shardlake

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

Teaching for Ethical Lawyering

Ethical lawyering as a phrase relates to two questions: how we conceive ethics and how we look at lawyering. As of now, the mandate to teach ethics is from the Bar Council of India (herein after, the BCI), although the most recent Curriculum Development Committee (hereinafter, the CDC) Report of the BCI does not throw much light on any model course. which retires from the scene after providing the nomenclature, ever since it took the reigns of mapping the law program. The word ‘lawyering,’ in the changing context, needs a broader vision. It requires going beyond institutions of justice and ‘stretching minds.’ As of now, teaching for ethical lawyering varies depending on each law school as to how it taxidermies the basic skeleton provided by BCI. In the days of yore, one did not study it in 3 years program while in 5 years program it is mandatory. What one notices is the striking flaw of not converging or linking it with clinical methods or multilevel assessment. Further, the cross-professional experience in media studies also reveals that teaching or learning or doing ethics per se is viewed as ‘not useful,’ ‘waste of time,’ very theoretical, ‘contrast of success and efficiency.’ The paper describes of what and how we teach with comparisons and contrasts. The ‘what and how’ have implicit dimensions of why and when too. The current law curriculum in India, includes rules of professional conduct within the bounds of ‘professional ethics’ which accounts for 10-20% of the curriculum, along with other components of accountancy and Bar-Bench Relations. In comparison, one could look into the courses taught elsewhere, focusing on active learning and built around the multiple visions of lawyering – visons of where and how one undertakes the task of lawyering – as deal-maker, facilitator, expert, negotiator, translator/story-teller, friend and as ‘hired gun.’ These courses emphasise on students making a self-conscious choice of a lawyering vision, ability to see the power dynamic and in putting the public interest dimension and collective duties above all. Next, the paper dwells on how it could change for future based on Carnegie Report. In order to cultivate ‘institutional intentionality’ one should revisit the learning climate, culture, excellence, quality parameters in the institute, it is going to pose ideas and challenges. The paper at the end, proposes a Roadmap. Ethics is more of a journey than destination. The war between ethicists and pragmatist is going to stay till the end of time, but redefining success and efficiency in context could bridge the two.

Testing Times: In-House Counsel and Independence

Independence has long been seen as a key to ethical lawyering. It is associated with improving the quality of legal work, and promoting advice that aligns the client's interests with the 'set of general social norms'. It is seen as so important that it 'defines the lawyer as a professional'. Yet lawyers' independence also presents some difficulties. Despite the exhortations in its favour over many years, the term remains vague and under-developed. Without a clear concept of what is being sought, it is difficult to ascertain what value can be given to it, and what techniques of regulation can be used to encourage it. The process becomes a fairly unproductive one of examining lawyers for traits of independence and failing to find any. This has led more than one commentator to doubt the value of independence as a way of considering legal practice.

Mogen Advocaten Liegen? Collaborative Negotiation Als Inspiratie Voor Een Nieuwe Ethiek (May Lawyers Lie? Collaborative Negotiation as Inspiration for New Ethics. Inaugural Lecture Belgian Francqui Chair University of Brussels, Power Point Presentation and Link to Life Video of the Lecture)

This is the power point presentation including link to the live video of the lecture, of my inaugural lecture at the University of Brussels where I was awarded the Belgian Francqui Chair 2010-2011. In the first part of the lecture I identify three causes of the negative imago of lawyers, being their ambiguous relationship with truth, with clients and with codes of ethics. In the second part, I argue that a new frame of reference, positive and collaborative, inspired by principled or collaborative negotiation may offer inspiration for a new ethics for lawyers in particular and professionals in general. I argue that such inspiration may be caught in two slogans: educate your client and educate your self.If the livestream video link found in the PDF does not work, please view the lecture on YouTube (YouTube search: Professor Verbeke Francqui). The full lecture may be viewed in nine different YouTube clips.

Learning to Act Like a Lawyer: A Model Code of Professional Responsiblity for Law Students

Law students are the future of the legal profession. How well prepared are they when they leave law school to assume the professional and ethical obligations that they owe themselves, the profession and the public? This question has led to a growing interest in Canada in the teaching of legal ethics. It is also led to a greater emphasis on the development of clinical and experiential learning as exemplified in the scholarship and teaching of Professor Rose Voyvodic. Less attention, however, has been placed on identifying the general ethical responsibilities of law students when not working in a clinic or other legal context. This can be seen in the presence of very few Canadian articles exploring the issue, and more significantly, in the paucity of law school discipline policies or codes of conduct that set out the professional obligations owed by law students. This article develops an idea that Professor Voyvodic and I talked about on a number of occasions. It argues that all law schools should have a code of conduct which is separate and distinct from their general University code and which resembles, with appropriate modifications, the relevant set of rules of professional responsibility law students will be bound by when called to the Bar. A student code of conduct which educates law students about their professional obligations is an important step in deterring such conduct while in law school and preparing students for ethical practice. The idea of a law school code of professional responsibility raises a number of questions. Why is it necessary for law schools to have their own student code of conduct? The article provides a threefold response. First, law students are members of the legal profession and a code of conduct should reflect this. Second, it must be relevant and comprehensive in order to ensure that it can inspire students to be ethical lawyers. And, third, as a practical matter, the last few years have witnessed a number of incidents at law schools that raise serious issues about the professionalism of law students. They include, for example, the UofT marks scandal, the Windsor first year blog and the proliferation of blogs with gratuitous, defamatory and offensive entries. It is not clear that all of this conduct would be caught by University codes of conduct which often limit their reach to on campus behaviour or University sanctioned events. What should a law school code of professional responsibility look like and what ethical responsibilities should it identify? For example, should there be a mandatory pro bono obligation on students or a duty to report misconduct. The last part of the article addresses this question by setting out a model code of professional responsibility for law students.

Client Confidentiality and Lawyer-Client Privilege: A Study of Indian, American and English Laws

With the increase in the number of foreign companies setting up businesses in India, the law on the issue of lawyer-client confidentiality needs to be understood so as to ensure that multinational businesses can share their concerns with the lawyers without the risk of corporate communications being misused against them.The paper studies the law prevailing in India relating to the duty imposed on lawyers towards their clients and the privilege provided to communication between lawyers and clients and compares it to the law in U.S.A and the U.K.An appraisal of Indian laws shows that the need for confidentiality of information shared between lawyers and their clients has been recognized and the communication between lawyers and clients has been privileged. The Bar Council rules provide for high standards of professional ethics for Indian lawyers, comparable to those in other jurisdictions. Also, with the growth of Legal Process Outsourcing in India, the concerns by clients towards data security have been raised. Lawyers in India have a duty imposed upon them under law to maintain confidentiality of their client’s information. Before starting business in a particular jurisdiction, a multinational company must clearly ascertain the scope of laws relating to attorney-client privilege, as this can ensure that the corporate communications are well protected and can facilitate business avoiding undesirable litigation.

Business Ethics of Government Employees and Future Lawyers in Thailand: a Study of Age, Gender, Management Experience, and Education

Ethical maturity and moral behavior are of concern to all managers and government officials, and even more so in Asian economy where some aspects of the economy seem to “go underground” without any taxation or proper credit to the owners or copyright holders. This research surveyed managers and employees in the Thai public work environment to measure their Personal Business Ethics Scores (PBES) to see if age, education, working in government, management experience, and gender makes a difference in making more ethical decisions. The responses of 304 government employees are compared to the PBES means of 216 law students to measure individual commitment to integrity, honesty, and observance of the laws regulating current business activities. The results of this research suggest that gender and work experience in the public sector are significant factors in the moral development of the respondents. This study contributes to the theory of moral development and the body of knowledge regarding the relationship of certain key variables to moral cognizance and ethical behavior, particularly regarding managers, government employees, and gender.

Preparing Ethical Lawyers: A Prescription and a Practical Proposal

This report proposes a method of making progress in developing the ethics project in legal education. It presents the findings of research into how ethics is currently taught in a number of different jurisdictions and then considers ways in which an effective community of practice might be developed. This involves establishing effective methods of dissemination and collaboration amongst all those interested in developing ethical legal professionals. The report explores ways of using Web 2.0 technologies to achieve these goals. Finally, it presents a new website designed to enable educators, practitioners, regulators and judges to contribute to a developing resource bank and to engage in collaboration and discussion in improving our efforts at developing ethical lawyers.

Legal Ethics of Lawyers in China

Legal Ethics of Lawyers in China

The Ethics of Tax Lawyering: An Introduction

The Ethics of Tax Lawyering: An Introduction

Legal Ethics of Lawyers in China

Legal Ethics of Lawyers in China

That 'Springbreak' Feeling: Pragmatism, Irony and Belief in the Age of Human Rights

This paper is a report that I presented at a recent workshop at the Sorbonne on Reevaluating Critical Approaches to International Law. I was rapporteur on international human rights and conceived the paper as both an introduction to and an evaluation of critical approaches to human rights law. I identify different strands of critique, some epistemological, others historical or substantive, or taking issue with the voice or the praxis of human rights. I try to recast critical voices in international human rights law as focused on ensuring that human rights retain their transformative potential, and do not merely ossify into an ideology of power. After pointing out some of the more familiar critiques of the critique - the limits of pragmatism as an ideology of rights, the need to bracket some doubts for any theory of political action, or the tendency to speak of the international human rights movement as if it were one - I do suggest that the future of international human rights thinking may lie in rediscovering some of the project's own critical energies. For example, I point out the relevance of current work on international human rights that seeks to emphasize their apologetic nature and, in particular, rights' tendency to become too embedded in the very international state structure they purport to criticize. I conclude with a few words on what might be an ethics of international human rights lawyering.

Nurturing Commitment in the Legal Profession: Student Experiences with the Osgoode Public Interest Requirement

“Eye-opening,” “disheartening,” and “inspiring” are some of the words used by law students who met in 2008–2009 to discuss their mosaic of experience in the field doing public interest work. These students had returned from placements under the first mandatory public interest requirement to be introduced in a Canadian law school (the Osgoode Public Interest Requirement, OPIR). OPIR arose from questions about the relationship between what is learned in law school and what is required to be a professional. Academics have challenged each other to do more to instill an “ethos of professionalism” during law school. Others have suggested that law students who do not receive exposure to the world outside the walls of the law school carry an “idealized conception of the profession” and are often unaware of the many practice contexts available to them. Others have warned that if ethical and professional responsibilities are not modeled and articulated for students, that teaching only the “law of lawyering” does not prepare students for becoming ethical lawyers. Teacher-educator Lee Shulman has bluntly accused law schools of “failing miserably” at connecting its lessons in how to “think like a lawyer” with how to “act like a lawyer.” For years, there have been similar concerns raised about the decline of professionalism among lawyers, both in Canada and in the U.S. A survey of Osgoode graduates revealed that students wanted more opportunities to engage with the community and to experience non-traditional forms of law practice. Osgoode Hall Law School grappled with many of these questions, and in 2007 it approved changes to the curriculum, including a new first year Ethics course (Ethical Lawyering in a Global Community, ELGC) and OPIR. In addition to the more traditional first year mandatory course load, Osgoode Hall law students must also complete ELGC, a minimum of 40 hours of public interest work and then engage in a discussion or written exercise reflecting on their experiences. These reflections are a valuable lens for seeing the profession and the administration of justice through the eyes of first and second year law students. Their experiences remind us in the profession that learning can flow in both directions.

American Bar Association: Summary of Ethics Rules Governing Collaborative Practice

The purpose of this paper is to address ethical issues considered in the above-mentioned opinions, including: (1) limited scope representation, informed consent, and restriction on practice; (2) conflict of interests; (3) competence and diligence; (4) mandatory withdrawal provisions, including withdrawal due to client behavior and withdrawal requiring the court's permission; (5) zealous representation; (6) confidentiality and disclosure; (7) communications and advertising; and (8) collaborative non-profit organizations. This Article shows that, for the reasons set forth below, Collaborative Practice is consistent with the rules of ethics for lawyers and provides an important method for clients and attorneys to achieve fair settlements without the expense, delay, and acrimony that are, unfortunately, all too common when disputes are resolved in the litigation process.

An Economic Crisis is a Terrible Thing to Waste: Reforming the Business of Law for a Sustainable and Competitive Future

This article analyzes how the current economic crisis has exposed many of the vulnerabilities of the conventional business model for law firms. After years of unprecedented growth, the vast majority of law firms are now paring their ranks, and a few venerable firms have collapsed completely. During flush times debt was cheap and readily available, and law firms successfully raised per-partner-earnings by attaining a highly leveraged structure. However, high leverage provides a thin buffer for firms when fortunes turn. Law firms are now loathe to take on more debt and hesitant to exact the necessary working capital from the pockets of partners. Law firms’ reliance on debt is attributable, in part, to the traditional prohibition on external investment. The notion of a law firm IPO in the United States has been bandied about, but bringing the idea to fruition would be in direct contravention of ethical rules. The article argues that regulating business structure in this manner is neither necessary nor sufficient to ensure ethical lawyering. Governments overseas have already arrived at this conclusion: In 2007 Australia debuted the world’s first publicly traded law firm, and the United Kingdom passed legislation allowing its law firms to seek outside investment. Several other countries appear poised to follow suit. Without access to modern capital structures, U.S. law firms are handicapped in building a transnational legal presence. The article proposes a system in which law firms can access an outside pool of capital as publicly traded partnerships, while adopting more formal ethical structures that protect professional standards and prevent possible conflicts of interest.Just as the Obama administration has recognized the crumbling of the economy as an opportunity for radical regulatory reform, the legal profession should not let this crisis go to waste. The U.S. legal profession should take advantage of the ongoing paradigm shift to develop liberalized business structures that allow firms to build sustainable, competitive practices in the evolving market for legal services.

The Lawyer as Parent: Sympathy, Care and Character in Lawyers' Ethics

In A Solicitor v Law Society of New South Wales, the New South Wales Court of Appeal and the Australian High Court disagreed as to whether a lawyer's convictions for sexual assaults on his partner's daughters, construed as violations of a father's responsibilities, showed he was unfit for legal practice. A Solicitor demonstrates the practical significance of the question whether parental qualities can rightly be expected of lawyers. This has been explored in Thomas Shaffer's Christian ethics of care for lawyers, where 'the lawyer as parent' helps to explain qualities of care and sympathy that are important for ethical legal practice. The author argues that, while parental qualities are highly significant for a lawyer's ethics, the practical implications of the parental drawn in Shaffer's ethics of care understate the importance of the lawyer's role (including moral commitments to the law) and collapse into situation ethics. He concludes that, while the metaphor should not be pressed too far, 'the lawyer as parent' does usefully help to describe some aspects of the lawyer's role and important social expectations of the legal profession. However, seeing the parental metaphor as one aspect of a stronger, virtue-based conception of character for lawyers (rather than as a feature of an ethics of care) deals more adequately and more completely with the moral nature of the lawyer's role.

Ethics for Lawyers in International Tribunals: Proposals for Reform

Ethics for Lawyers in International Tribunals: Proposals for Reform