Ethical Considerations of Lawyers
Written by Sam Ferraro
In everyday practice lawyers encounter many ethical considerations which are often difficult to resolve and cause lawyers, sleepless nights.
Some of those issues are considered here.
Legal Professional Privilege
In light of the Lawyer X Royal Commission much has been said about legal professional privilege and the rights of clients to confidentiality when they seek advice from their lawyers.
This raises the question of what is legal professional privilege and why is it so important?
The principle behind legal professional privilege is that when a client discloses information to a lawyer in order to obtain legal advice, the information disclosed by the client and the advice given by the lawyer should remain confidential in order that the disclosure by the client can be given frankly with confidence that it will remain confidential. It follows that if the information disclosed by the client to the lawyer is privileged, then the advice given by the lawyer cannot be called into question without knowing the facts upon which the advice is given.
What does this mean?
We often see and hear people expressing opinions about high-profile cases and questioning why sentences handed out by judges are so light. Very often these opinions are based on brief news reports or social media reports and rumours about these cases. Many lawyers are asked of the Ristevski case why the sentence was so light.
The simple answer is that the prosecution formed the view that it would be difficult to prove an intention to kill and so it was decided to proceed with a manslaughter charge for which a lighter sentence is always given. Although that example does not relate to privilege it shows the need to be aware of all the facts before an opinion can be formed about a particular case.
Back to the principle of privilege, it is important to note that the privilege belongs to the client not to the lawyer. It is not for the lawyer to decide whether the privilege is claimed, it is for the client to decide whether he or she chooses to claim it.
In the case of Lawyer X, the lawyer in question did not have the right to pass on information which she received without obtaining the client’s approval. Nonetheless, she co-operated with police and provided information which her clients had given her in confidence and then purported to give them advice about what was in their best interests.
From the reports so far, it would appear that she acted against the interests of her clients and that is not what a lawyer should ever do.
Conflicts of interest
That raises another important principle which lawyers often talk about and that is conflicts of interest. There are many rules which set out how lawyers should behave in order to avoid conflicts of interest.
A good lawyer is selfless and puts the interests of his or her client above their own. However, it surprises most clients to learn that the client’s interests are not paramount. There is a greater interest than the client’s which lawyers have to advance.
That is the duty which lawyers owe to the court. The duties owed by lawyers are as follows;
1. Duty to the court
2. Duty to the client
3. Duty to other lawyers
4. Duty to ensure the due administration of justice.
So why is the question of privilege so important?
A fundamental principle of a strong democracy is a strong and independent legal system. An independent judiciary is part of that system and that ensures the enforcement of our democratic rights as citizens.
Such a system protects us against governments, police and other statutory authorities. These are all organisations which, if unchecked, have the potential to abuse their power and it is the court and the legal system that provides checks and balances against such organisations.
Legal professional privilege is an important part of the protection of those rights by the legal system.
It allows the public to have faith in the system.
The duty owed by lawyers often requires that the lawyer act honestly, with candour and competence.
Importantly, lawyers should not and must not mislead the Court and must be frank in their responses and disclosures. For that reason, in the case of Giannarelli Brennan J stated:
“The purpose of court proceedings is to do justice according to the law. That is the foundation of a civilized society”.
The cases involving Lawyer X dealt with criminal proceedings, but the legal principle in question applies equally in civil proceedings.
Sometimes, privilege cannot be asserted because it has been waived.
Exceptions to the principle of privilege
Privilege will be waived can be waived expressly or by implication, by words or by conduct.
In other words, privilege can be waived because someone decides they will waive their right to privilege and states that they are waiving their right, or they act in a manner inconsistent with their right. They may make a statement disclosing the advice given by a lawyer and so waive their right in the process.
Sometimes when clients attend a lawyer for legal advice, they bring a friend or relative for moral support. Any advice given in the presence of third person may not be privileged because it is not being given confidentially. In those circumstances, it is considered that privilege is waived by the presence of the other party. So, when you take a friend or relative to see a lawyer with you, the moral support offered by the person has to be considered against the risk of loss of privilege. Most people would probably prefer to have the friend or relative present.
If the privilege claimed arises from the pursuit of an illegal purpose then privilege cannot be claimed. In other words, if the advice was sought in order to advance any illegal activity privilege does not arise and any communication between the lawyer and client must be produced to a court upon request.
It does not matter that the lawyer providing the advice does not know that it is being sought for any legal purpose. Since the privilege belongs to the client not the lawyer, the client cannot claim it in this situation.
The practice of law presents its challenges to lawyers on a daily basis. Any such dilemma always impacts on clients’ rights.
Clients having an understanding of the ethical dilemmas faced by lawyers in their everyday practice will hopefully help to assist in the resolution of these dilemmas for the benefit of all concerned.