The lawyer-client relationship has historically been characterised as one of confidence. This duty also constitutes part of the broader foundation for lawyer's fiduciary duties to their clients.
Rationale for the duty
The maintenance of full and frank disclosure between lawyers and their clients is the main justification for the duty of confidentiality. It allows clients to freely discuss intimate details without fear that such information could be subsequently disclosed to the general public. In turn, public confidence in lawyers and the legal system is maintained and promoted. Further, the duty of confidentiality is a constant reminder to lawyers of the loyalty they owe to their clients.
Source of the duty
The duty is sourced from a combination of contract law and equity arising from the distinctive relationship between lawyer and client. In contract, the duty arises from terms contained in the retainer agreement. Complementarily, equity prohibits unauthorised use or disclosure of confidential information. In most jurisdictions, the duty is codified in the terms of legal professional rules.
Although the duty of confidentiality and fiduciary duties have common origins, they cannot be equated as not all fiduciary duties attract duties of confidentiality and vice-versa.
Duty of Confidentiality
In common law jurisdictions, the duty of confidentiality obliges a solicitor to respect the confidentiality of his or her client's affairs. Information that a solicitor obtains about his or her clients' affairs may be confidential, and must not be used for the benefit of persons not authorised by the client. Confidentiality is a prerequisite for legal professional privilege to hold.
Adversarial System
The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of each advocate representing his or her party's positions and involves a neutral person, usually the judge, trying to determine the truth of the case. The inquisitorial system usually found on the continent of Europe among civil law systems (i.e., those deriving from Roman law or the Napoleonic Code) has a judge (or a group of judges who work together) whose task is to investigate the case. The adversarial system is the two-sided structure under which American criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.
Professional Responsibility Violations In General
Common violations include:
- Conflicts of interest. This occurs where the same lawyer or firm is representing both sides in a lawsuit, or used to represent one side. In countries with the adversarial system of justice, a conflict of interest violates the right of each client to the undivided, zealous loyalty of his lawyer. Conflicts may also occur if the lawyer's ability to represent a client is materially limited by the lawyer's loyalty to another client, a personal relationship, or other reasons.
- Mishandling of client money. Clients often advance money to lawyers for a variety of reasons. The money must be kept in special client trust accounts until it is actually earned by the lawyer or spent on court fees or other expenses.
- Disclosure of confidential information. Lawyers are under a strict duty of confidentiality to keep information received in the course of their representations secret. Absent law to the contrary, lawyers may not reveal or use this information to the detriment of their clients.
Ethical Code
In the context of a code adopted by a profession or by a governmental or quasi-governmental organ to regulate that profession, an ethical code may be styled as a code of professional responsibility, which may dispense with difficult issues of what behavior is "ethical".
Some codes of ethics are often promulgated by the (quasi-)governmental agency responsible for licensing a profession. Violations of these codes may be subject to administrative (e.g. loss of license), civil or penal remedies. Other codes can be enforced by the promulgating organization alone; violations of these codes are usually limited to loss of membership in the organization. Other codes are merely advisory and there are no prescribed remedies for violations or even procedures for determining whether a violation even occurred.
A code of ethics is often a formal statement of the organization's values on certain ethical and social issues. Some set out general principles about an organization's beliefs on matters such as quality, employees or the environment. Others set out the procedures to be used in specific ethical situations - such as conflicts of interest or the acceptance of gifts, and delineate the procedures to determine whether a violation of the code of ethics occurred and, if so, what remedies should be imposed. The effectiveness of such codes of ethics depends on the extent to which to management supports them with sanctions and rewards. Violations of a private organization's code of ethics usually can subject the violator to the organization's remedies (in an employment context, this can mean termination of employment; in a membership context, this can mean expulsion). Of course, certain acts that constitute a violation of a code of ethics may also violate a law or regulation and can be punished by the appropriate governmental organ.
They are often not part of any more general theory of ethics but accepted as pragmatic necessities.
Ethical codes are distinct from moral codes that may apply to the culture, education, and religion of a whole society.
Even organizations and communities that may be considered criminal may have their own ethical code of conduct, be it official or unofficial. Examples could be hackers, thieves, or even street gangs.
Some codes of ethics are often promulgated by the (quasi-)governmental agency responsible for licensing a profession. Violations of these codes may be subject to administrative (e.g. loss of license), civil or penal remedies. Other codes can be enforced by the promulgating organization alone; violations of these codes are usually limited to loss of membership in the organization. Other codes are merely advisory and there are no prescribed remedies for violations or even procedures for determining whether a violation even occurred.
A code of ethics is often a formal statement of the organization's values on certain ethical and social issues. Some set out general principles about an organization's beliefs on matters such as quality, employees or the environment. Others set out the procedures to be used in specific ethical situations - such as conflicts of interest or the acceptance of gifts, and delineate the procedures to determine whether a violation of the code of ethics occurred and, if so, what remedies should be imposed. The effectiveness of such codes of ethics depends on the extent to which to management supports them with sanctions and rewards. Violations of a private organization's code of ethics usually can subject the violator to the organization's remedies (in an employment context, this can mean termination of employment; in a membership context, this can mean expulsion). Of course, certain acts that constitute a violation of a code of ethics may also violate a law or regulation and can be punished by the appropriate governmental organ.
They are often not part of any more general theory of ethics but accepted as pragmatic necessities.
Ethical codes are distinct from moral codes that may apply to the culture, education, and religion of a whole society.
Even organizations and communities that may be considered criminal may have their own ethical code of conduct, be it official or unofficial. Examples could be hackers, thieves, or even street gangs.
Subscribe to:
Posts (Atom)
