This article is written by Aadrika Malhotra of 4th Semester of Guru Gobind Singh Indraprastha University, an intern under Legal Vidhiya
A lawyer often faces the challenge of balancing conflicting loyalties, requiring careful reconciliation. They bear responsibility not only to their clients, whose interests are their foremost duty to uphold and advance, but also to the Court, of which they are an officer. Additionally, they owe accountability to their fellow colleagues at the Bar and must adhere to the established traditions of the legal profession. An advocate holds a significant responsibility in safeguarding the interests of the country and guiding the community, as they are a privileged member of the society and are expected to embody the qualities of a respectful and responsible citizen.
Conflict of duty, ethics, legal relationships, legal ethics
Conflict is often viewed as the stimulus for critical thinking and innovation. It provokes us to pay attention, recall past experiences, and devise new solutions. Conflict serves to disrupt our passive inclinations, compelling us to become more perceptive and resourceful. It is the indispensable component of thoughtful deliberation and creative problem-solving.
When an advocate encounters situations where personal interest conflicts with professional duty, it is imperative that duty takes precedence. In the legal profession, such predicaments frequently arise, such as when one is approached by an opposing party in a subsequent lawsuit. While the client may not object to your representation, it is vital to resist any attempts by the opposing counsel to extract privileged information from you related to a prior case. The confidentiality of communications between a client and their lawyer is perpetual and should be staunchly protected.
Furthermore, an adversary from a previous case might seek to engage your services in subsequent litigation against a third party and may attempt to establish a closer relationship. In these challenging circumstances, upholding a strong sense of honor and an unwavering commitment to moral integrity can serve as a reliable guide, ensuring that one’s actions align with the principles of righteousness and conscientiousness.
Duty of Lawyers to Render Legal Aids
Every advocate practicing law must remember that anyone genuinely in need of legal representation is entitled to assistance, even if they cannot afford to pay for it adequately or in full. Within the constraints of an advocate’s economic situation, providing free legal aid to the impoverished and marginalized is one of the most significant obligations that an advocate owes to society.
An advocate should take steps to establish Legal Aid Societies aimed at providing legal assistance to the genuinely disadvantaged individuals without any charge. Moreover, it is the responsibility of an advocate to offer legal education to the illiterate and the working class, ensuring they are informed of their rights and legal provisions using simple language.
Additionally, an advocate should support local governing bodies such as village panchayats to operate effectively, enabling individuals to fulfill their duties in an informed and responsible manner. It is also incumbent upon an advocate to mediate family disputes and resolve minor conflicts and controversies through amicable settlements.
The Cardinal Rules of Legal Ethics
Representing clients with conflicting interests is inherently improper, irrespective of how thoroughly the lawyer discloses the potential ramifications and obtains consents.
Moreover, a lawyer must refrain from appearing before any authority of which they are a member, particularly in a case against that authority. It is also deemed inappropriate for a lawyer to accept a brief in which they have previously served in a judicial or quasi-judicial capacity, such as an arbitrator. Similarly, an advocate should not appear in a case in which they have previously provided testimony.
These prohibitions are not solely based on the conflict between interest and duty but are grounded in the principle that such actions may cast doubt on the advocate’s character. Such actions have the potential to erode public trust in the legal profession as a whole and diminish confidence in the integrity of the administration of justice.
The Constitution guarantees the fundamental right of an accused person to consult and be defended by a lawyer of their choice, making it the duty of a lawyer to undertake the defense in such cases. This constitutional mandate effectively eliminates any conflict between interest and duty in criminal proceedings. However, complications may arise if the accused confesses their guilt to the lawyer.
Regarding this matter, the stance of Mahatma Gandhi is notable. He had criticized English and South African lawyers who, whether consciously or unconsciously, resorted to untruthfulness for the sake of their clients. He strongly opposed the view held by an English lawyer that the duty of a lawyer was to defend a client even if they were aware of their guilt. Gandhi emphasized that the duty of a lawyer was to present accurate facts before the judge and to assist in the pursuit of truth, rather than attempting to prove the guilty as innocent. This distinction highlights the ethical responsibility of a lawyer to uphold truth and integrity, even in the course of providing legal representation.
Moody v. Cox Case
A situation may arise where a solicitor has a duty on one side and an interest on the other. In such a scenario, the solicitor assumes a significant responsibility. It is possible for a solicitor to be obligated to both their client as a solicitor and their beneficiaries, leading to conflicting duties. However, if the solicitor chooses to place themselves in this dilemma, they cannot claim to have fulfilled their legal obligations towards the client while citing a duty to the beneficiaries. Prior to assuming such a position, the solicitor should inform the client of the conflicting duties and either seek an agreement from the client to waive full disclosure or, alternatively, decline the case altogether. It is inappropriate for a solicitor to evade the obligations imposed on them by the role of solicitor, claiming it is not a matter of conflicting duties but a case of duty on both sides, making it impossible to fulfill.
Moreover, the interest and duty of the parties and advocates can be as follows:
While the parties’ interest lies in seeking a favorable decision and their duty primarily involves compliance with court rules, truthful testimony, and refraining from deliberate deception, the role of an advocate is significantly more intricate. Advocates often grapple with the complexities of divided loyalties, adding a layer of complexity to their professional responsibilities.
Oceanic Life Ltd v HIH Casualty & General Insurance Ltd Case
In the context of conflicts of interest and conflicts of duty, the attorney’s obligation to the court might not significantly differ from their fiduciary responsibilities to past and current clients. Nevertheless, the duty to the court is often articulated to underscore the public interest in upholding trust in the fair administration of justice, highlighting both the appearance and the actuality of impartiality, and the court’s pragmatic approach to its overseeing powers.
Potential Situations for Conflicts
In the case of Abse and others v Smith and another, it was determined that a lawyer aims to advance their client’s interests and is obligated to do so using lawful methods. However, the lawyer also possesses an interest in the proper dispensation of justice, to which their profession is committed, and owes a duty to the court to contribute to the achievement of this goal. The potential for conflict between these interests and duties is significant. Nevertheless, the public interest in the fair administration of justice necessitates that these conflicts be resolved in accordance with established professional rules and practices, allowing judges to presume that such resolutions are indeed in place.
Therefore, there exists an overarching public interest in upholding not only a general standard of integrity among advocates but also a high professional standard, which requires a sophisticated understanding of how conflicts of duty should be resolved.
Bar Council of Maharashtra v. M. V. Dabholkar Case
Certainly, the legal profession is not to be equated with ordinary businesses or trade associations, but rather is considered as a distinct and separate entity. Russell G. Pierce proposed the theory of the Professional Paradigm Shift, suggesting that the legal profession should be treated akin to a trade, advocating for the blurring of lines between the two. Soli J. Sorabjee, in “Lawyers as Professionals,” expressed his concern about the negative public perception of lawyers. They are often seen as primarily motivated by financial gain rather than a genuine commitment to serving others, giving rise to the perception that the legal profession is purely a money-making enterprise.
Sorabjee highlighted the decline in the noble image of the legal profession, attributing it to lawyers and other professionals losing sight of the true essence of their profession and their intended role in society. He emphasized that the primary aim of a profession should be to provide service, contrasting it with the profit-driven nature of businesses. He acknowledged the need for lawyers to earn a living, especially in complex cases involving corporate clients, but emphasized the importance of ensuring that services are accessible to those who cannot afford them.
Sorabjee proposed that lawyers should consider offering some of their services free of charge, especially to the underprivileged and marginalized. Drawing a parallel with medical professionals, he suggested that lawyers could establish free legal clinics to provide support to those in need. He urged lawyers to remember their role as guardians of noble ideals and traditions, highlighting the need for a reorientation towards the spirit of public service within the legal profession.
Conflicts of Duties
If the lawyer has previously represented the client in various legal matters, including preparing conveyancing deeds, managing the client’s will, and representing them in litigation, the client has likely placed considerable trust in the lawyer’s expertise and integrity over the course of 20 years.
However, when the same lawyer serves a letter of demand on the client in connection with a matter in which they had previously represented the client, it raises concerns about potential ethical violations and conflicting interests. It is essential for the lawyer to maintain a strict adherence to professional boundaries and ethical standards, ensuring that the client’s interests are always prioritized.
In this situation, the lawyer should have taken precautions to avoid any conflicts of interest and should have refrained from representing the client in any matter that might have the potential to create a conflict. It is crucial for the lawyer to uphold the principles of loyalty and trustworthiness, ensuring that their actions consistently align with the best interests of the client. If there is any potential conflict, the lawyer should have disclosed it to the client and sought their informed consent before proceeding. Failure to do so may raise significant ethical and legal concerns, which could potentially jeopardize the client-lawyer relationship and the lawyer’s professional reputation.
Fiduciary Relationships and Loyalties
The conduct of a lawyer serving a letter of demand on a client after having a longstanding professional relationship with them is generally viewed as inappropriate and unethical due to the nature of the lawyer-client relationship. This relationship is characterized by intimacy and a significant level of trust and confidence placed by the client in the lawyer. Moreover, the lawyer is considered to be in a fiduciary relationship with the client, which is one of the most recognizable fiduciary relationships in the legal system. The fidelity of a lawyer to their client is essential for maintaining public confidence in the administration of justice, highlighting the crucial need for lawyers to adhere to high standards of propriety.
Conflicts of duty in the legal profession are considered insidious as they can cloud a lawyer’s judgment and impact their duty of care. These conflicts can arise when a lawyer owes a duty to one client but simultaneously or successively undertakes a similar duty towards another client. Such conflicts may undermine the lawyer’s professional independence and call into question their ability to act in the best interests of their clients.
In the case of Kooky Garments Ltd v Charlton, Thomas J emphasized that lawyers have a professional responsibility to avoid appearing in a matter where there is an actual or potential conflict of duty or where their relationship with the client might compromise their professional independence. Adhering to these principles is essential for upholding the integrity and credibility of the legal profession.
When a lawyer is found to be involved in a conflict of interest while representing a client, it signifies a breach of duty. This duty is typically expressed as a fiduciary obligation that emerges from the relationship between a solicitor and their client. Additionally, a similar duty is owed by the lawyer to the court, in addition to an ethical duty. The duty to the court stems from the court’s necessity to have the assistance of impartial legal representation for the litigating parties. The credibility of the adversarial system relies on lawyers acting with the utmost good faith, which is integral to upholding public confidence in the administration of justice.
The primary reason for restricting a lawyer from representing a client due to a conflict of interest is the perceived conflict between the lawyer’s ongoing duty (owed to their former client) not to disclose or use confidential information learned during the prior representation and the lawyer’s interest in promoting the case of their new client. Respecting the confidentiality of client information is crucial for maintaining trust and integrity in the legal profession and preserving the client’s rights.