Attorneys owe duties to the public? For what??? C. DENNIS MORRISON
Attorneys’ duties - general • “A modern just society needs a legal profession which adopts high standards of integrity and professionalism. Lawyers, law firms and those who work in them serve both clients and society. In serving society, you uphold the rule of law and the proper administration of justice. In serving clients, you work in partnership with the client making the client’s business your first concern.” -
The Law Society – Solicitor’s Code of Conduct 2007, page 2
Attorneys’ duties - general So we take certain things as given: • Personal Integrity is central to our role as the client’s trusted advisor and must characterise all our professional dealings with clients, the court, other lawyers and the public.
Attorneys’ duties - general • A strong and independent legal profession is critical to the protection of human rights and to the maintenance of the rule of law.
• ‘Independence’ means your own and your firm’s independence, and not merely your ability to give independent advice to a client.
Attorneys’ duties –general “The application and enforcement of ethical principles by a legal profession are a clear indication of its independence. If the executive takes control of ethics, there is a risk that it will also control which lawyers are allowed to practice with … disastrous consequences …” -
Geoffrey Vos QC, Independence of the Judiciary and the Legal Profession, in The Rule of Law: Perspectives from around the Globe, page 79
Attorneys’ duties –general “The most basic obligation that a lawyer owes his or her client is competent delivery of the required service. Clients typically have little idea about how well their lawyer conducts their matter. There are potentially several dimensions to competent performance. The main component is technical expertise in law and procedure.” -
Andrew Boon, Lawyers’ Ethics and Professional Responsibility, page 105
Specific duties – (1) to the court • “[The advocate] has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth … He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline. •
- Rondel v Worsley [1966] 3 WLR 950, per Lord Denning MR at 962-63
Specific duties – (1) to the court These can be distilled into four main categories: • • • • •
A general duty of disclosure owed to the court A general duty not to abuse the court process A general duty not to corrupt the administration of justice A general duty to conduct cases efficiently and expeditiously A general duty to show respect for the court - See generally, David Ipp, Lawyers Duties to the Court (1998) 114 LQR 63
Specific duties – (1) to the court • This is an overarching duty: In Vernon v Bosley (No 2) [1997] 1 All ER 614, the plaintiff was awarded damages for nervous shock. After circulation of the draft judgment, the plaintiff’s counsel was given documents from another court case which showed that the plaintiff had largely recovered from the nervous shock injury. It was held that counsel was under a duty to advise his client that the new information should be disclosed. In the event of the client’s refusal to accept this advice, the Court of Appeal, by a majority, was of the view that counsel should then withdraw from the case.
Specific duties - (2) to the client • “Subject only to his overriding obligations to act at all times in an honest, upright and honourable way, a lawyer’s paramount duty is to his client: to serve his interests with his best skill and care: to preserve his confidences: and to be diligent and punctilious over his financial dealings with him.” International Bar Association Book II, Professional Ethics, page 27
Specific duties - (3) to the profession • “Every lawyer owes a duty at all times to maintain the honour and dignity of his profession and to deal honourably, frankly and fairly with all his colleagues.” • An increasingly observed breach: writing letters to adversaries or third parties which are abusive, offensive or otherwise inconsistent with the proper tone of a professional communication from an attorney-at-law - International Bar Association Book II, Professional Ethics, pages 28-29
Duties to the public – the existing rules • Traditionally the attorney’s duties to the public have been somewhat vaguely defined: • “A lawyer’s duty to the public requires him to provide a legal service which commands its respect and confidence.” • Traditional examples of specific breaches include (1) stirring up litigation; (2) acting without instructions; (3) failing to exercise proper supervision and control over office staff; and (4) delegating to any legally unqualified person not in his employ or under his control any functions which can only legally be performed by a duly qualified lawyer. - International Bar Association Book II, Professional Ethics, pages 30-31
Duties to the public – the existing rules The Legal Profession Act (Canons of Professional Ethics) Rules 1978 describe a similarly conservative vision: • Canon I(b): “An Attorney shall at all times maintain the honour and dignity of the Profession and shall abstain from behaviour which may tend to discredit the profession of which he is a member.” • Canon I(d): “An Attorney shall expose without fear or favour, before the proper tribunals, unprofessional or dishonest conduct by any other attorney and shall not lightly refuse a retainer against another attorney who is alleged to have wronged his client.”
Duties to the public – the existing rules The only specific statement about an attorney’s duty to the public is found in Canon III, under the general rubric – • “An Attorney owes a duty to the public to make his counsel available and a duty to the State to maintain its constitution and its laws and shall assist in improving the legal system.”
Duties to the public – the existing rules • Canon III (a) – (j): (a) An Attorney is under no obligation to act on behalf of every person who may wish to become his client, but in furtherance of the ethics of the profession to make legal services fully available, he shall not lightly decline a proffered retainer. (b) An Attorney may accept a general or special retainer from a client, and the retainer rules hitherto applicable in the case of counsel shall apply mutatis mutandis. (c) An Attorney shall not be deterred from accepting proffered employment owing to the fear or dislike of incurring disapproval of officials, fellow Attorneys or members of the public.
Duties to the public – the existing rules (d)
*(e) (f)
When an Attorney consents to undertake legal aid and he is appointed by the Court or is requested by his professional association to undertake the representation of a person unable to afford such representation or to obtain legal aid such attorney shall not (except for compelling reasons) seek to be excused from undertaking such representation. An Attorney shall not (except for good reasons) refuse his services in Capital offences. An Attorney shall not act contrary to the laws of the land, or aid, counsel or assist any man to break those laws.
Duties to the public – the existing rules (g)
*(h)
An Attorney in undertaking the defence of persons accused of crime shall use all fair and reasonable means to present every defence available at law, without regard to any personal views he may hold as to the guilt of the accused. An Attorney engaged in conducting the prosecution of an accused person has a primary duty to see that justice is done and he shall not withhold facts or secrete witnesses which tend to establish the guilt or innocence of the accused.
Duties to the public – the existing rules • (i) • (j)
An Attorney shall not by his actions stir up strife or litigation, and where it is in the interest of his client he shall seek to obtain reasonable settlements of disputes. An Attorney shall endeavour by lawful means where the needs of society require to promote and encourage the modernization, simplification and reform of laws.
Duties to the public – a broader conception • Attorneys have a duty to promote and preserve the Rule of Law, in whatever sphere of practice or activity they may operate. “The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.” - Tom Bingham, The Rule of Law (2010), page 8
Duties to the public – a broader conception At the very minimum, preservation of the rule of law requires that: (i) laws should be accessible, intelligible, clear and predictable; (ii) legal rights and liabilities should ordinarily be resolved by application of law and not by the exercise of discretion; (iii) the laws of the land should generally apply equally to all; (iv) the law must afford adequate protection to fundamental human rights; (v) the law must provide adequate means for the resolution of disputes by independent and impartial tribunals within a reasonable time; (vi) executive and administrative action should generally be subject to judicial review; and (vii) the State should comply with its international law obligations - See generally The Rule of Law, chapters 3 - 10
Duties to the public – a broader conception • “A lawyer’s duties extend beyond the needs of their clients to the
vital needs of the public interest and the justice system. Lawyers are deemed ‘officers of the court’. They can and should be sentinels and guardians for the just rule of law ...
... Do not allow law school to break your idealism. The legal profession will tempt you with money and the illusion of prestige. Our country needs more lawyers working to preserve the rule of law, rather than serving clients who subvert it.” - Ralph Nader, The Duty of Lawyers, The Blog, 28/6/2013 https://www.huffingtonpost.com/ralph-nader/rule-of-law_b_3516830.html
Duties to the public – a broader conception • “Lawyers hold power. Arguably, courts are the ultimate seat of power in the land. Even the government can be forced to act following a court ruling. Yet, for the vast majority of people, access to the ultimate seat of power is only available through a lawyer. Similarly, most people at a crisis point in their lives will require legal advice. Be they facing a criminal charge, in the midst of a family breakdown, having lost their job, or buying a house, they need legal advice and the outcome of that advice will have a fundamental effect on their lives. Lawyers therefore enter people’s lives often at highly sensitive times. This gives them considerable power in the personal context, as well as the political.” - Jonathan Herring, Legal Ethics, page 53
Duties to the public – a broader conception • Attorneys have a duty to educate the public. “We share responsibility for ensuring that broader society has a knowledge and understanding of the law and an appreciation of the values advanced by the rule of law. Every lawyer must make an effort to educate the public about our judicial system and the value of lawyers, judges, juries, and the many other participants in the system.” - Robert Bell & Caroline Abela – A Lawyer’s Duty to the Court
http://www.weirfoulds.com/files/10167_CEA%20%20A%20Lawyer's%20Duty%20to%20the%20Court.pdf
Duties to the public – a broader conception • Attorneys are not only representatives of clients, they are officers of the legal system and public citizens having special responsibility for the quality of justice. “As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.” - Virginia State Bar Professional Guidelines
Duties to the public – a broader conception • Attorneys have a duty to improve access to justice by participation in pro bono activities, the establishment of legal aid facilities and informing ordinary working people of their legal rights and obligations. This is critical to the preservation and enhancement of the credibility of the legal profession and the system of justice that attorneys help to deliver. “… The bottom line is that law is not just a business. Never was. Never can be so. It is a special profession. Its only claim to public respect is the commitment of each and every one of us to equal justice under the law.” - Michael Kirby, Law firms and justice in Australia, speech given at Australian Law Awards, Sydney, 7 March 2002
Duties to the public – a broader conception • Attorneys have a duty to embrace and promote for the better in all aspects of the law and the legal system. “"We look backwards for the law that we must apply. We follow precedence established in the past. In my view, this tends to make lawyers and judges slow to embrace change ... In the field of justice, a thing is right because that's how we've always done it … The public expects better. We have a duty continually to interrogate court processes and the rules of procedure to ensure they are customer-friendly, effective, and designed to enhance efficiency. I think we need to embrace and fully utilise appropriate methods of resolving the ever-growing body of cases." - Justice Adrian Saunders, Judge of the Caribbean Court of Justice http://jamaicagleaner.com/article/lead-stories/20171023/judges-lawyers-urged-become-more-innovative
Duties to the public – a broader conception • Attorneys have a duty to embrace the benefits of the new technologies, rather than persisting with “offline rules in an online world”, with far too many still proudly proclaiming themselves to be “technological dinosaurs”. • While it is possible to interpret existing rules of ethical conduct as including competence in technology, should we not now consider prescribing such competence as a separate ethical obligation?
Duties to the public – a broader conception • Thus, as a specific response to the pervasiveness of technology, the American Bar Association’s Model Rules now proclaim, under the heading ‘Maintaining Competence’, as follows: • “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all the continuing legal education requirements to which the lawyer is subject.” (emphasis supplied) - See generally Robert Ambrogi, The Week in Legal Tech: Ethics and Technology Competence, published on the Above the Law website, 11 July 2016 https://abovethelaw.com/2016/07/this-week-in-legal-tech-ethics-and-technologycompetence/?rf=1
Duties to the public – a broader conception • As of July 11, 2016, 21 states in the USA were reported to have adopted the new duty of technology competence. • “The takeaway messages are simple. Attorneys have a duty to be well versed and educated in this rapidly changing field. Competent advice to clients in electronic preservation matters is an ethical obligation that attorneys cannot afford to ignore.”
- Lisa Sherman, Benjamin Rose, and Jim Carden, California’s New E-Competence Rule, http://apps.americanbar.org/litigation/committees/ethics/articles/winter2016-0116-californianew-e-competence-rule.html
Duties to the public – visioning the future So, speaking of technology, where, you might well ask, is all of this going? Well, let’s consider for a moment where we’re coming from: The World-Wide-Web made its first appearance in its modern form in 1990 The first commercial internet providers began to appear in the early to mid 1990s Amazon was founded in 1994 Google was founded in 1998 FaceBook was founded in 2004 - Source: Google!!!
Duties to the public – visioning the future • Within the space of a single generation, each of these phenomena has completely transformed the way we live, work, play, do business and practise law. • But yet, in 1996, when Professor Richard Susskind predicted in his best-selling book, ‘The Future of Law’, that, within the next decade, email would become the principal mode of communication between lawyers and their clients, and that the internet would supplant the traditional law library, it was suggested that he was a danger to the legal profession, possibly insane and ought not to be allowed to speak in public.
Duties to the public – visioning the future • Now that all of that and more has come to pass, and in a far shorter time than anyone could have predicted, we should, I think, pay attention to Professor Susskind when he asserts that, rather than the revolution having passed, it has only just begun. • Before too long, technologically enabled courts may be followed by virtual courts, morphing into fully online courts, operating alongside online dispute resolution (ODR) facilities. • This is neither dream nor nightmare and work on much of the above is already ongoing in several places, notably the United Kingdom. - Richard Susskind, Tomorrow’s Lawyers, pages 101-120
Duties to the public – visioning the future • “The legal market is in a remarkable state of flux. In less than two decades, the way in which lawyers work will change radically. Entirely new ways of delivering legal services will emerge, new providers will be firmly established in the market, and the workings of our courts will be transformed.” • “Here is the great excitement for tomorrow’s lawyers. As never before, there is an opportunity to be involved in shaping the next generation of legal services. Your elders will tend to be cautious, protective, conservative, if not reactionary. They will resist change and will often want to hang on to their traditional ways of working, even if these are well past their sell-by date.”
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Susskind, op cit, page 3
Duties to the public – visioning the future • In this new milieu, the public will need as much help as the legal dinosaurs. • While the duties of educating the public and enabling access to justice will remain unabated, new duties will no doubt emerge to meet new paradigms. • And, so long as they bolster, rather than detract from, the primacy of the rule of law, I venture to suggest that there will be nothing to fear in change.
The End
THANK YOU!