Ethical context of the legal profession Flashcards
Are lawyers ethics special?
Lawyers apply the same basic principles as other professions, but the role of a professional means they are applied in a particular way.
There’s an enhanced obligation for lawyers i.e. everyones expected to be honest, lawyers are expected to sustain the highest standards of honesty.
Lawyers apply the same basic petrinciples, but have exemption by virtue of their professional status, so although generally people must tell the truth, the special requirement of lawyers to do all they can to promote their clients well being means they are permitted to subvert that principle if necessary. Lawyers’ ethics essentially have their own special basis; they are not simply enhanced versions of the average person’s ethical principles.
Lawyers are seen as professionals which is an important aspect of how they understand themselves and how they are perceived in society. Judges, Lawyers, Doctors, Senior Military officers, Police Chief, Professors, Architects, Dentists, Engineers etc are all typical examples of professionals.
Define a professional or ‘professionalism’
The notion of a ‘Profession’ is defined as involving a complex social, political and economic process.
They are characterised by the following features:
Specialist knowledge
Autonomy
Social prestige
Strict entry requirements
Commitment to codes and ethics
An acceptance of fiduciary obligations to clients
Community interest in the activities
State the main regulatory bodies that lawyers are governed by
The Legal Services broad
The Solicitors Regulation Authority (and code of Conduct)
The Solicitors Disciplinary Tribunal:
The Bar Standard Board
The Legal Ombudsman:
What is the main role of the SRA Code of Conduct?
The SRA Code of Conduct is regarded as subordinate legislation or secondary legislation so solicitors who carry out investment businesses are subject both to the SRA Code of Conduct and also the Financial Services and Markets Act 2000.
The SRA Code of Conduct is ultimately seeking to articulate principles. The status of the codes are somewhat ambiguous. On the one hand, they are not law or legislation in themselves however they are enforceable through the sanctions imposed by the professional body who enforce the codes.
A lawyer who breaches a professional code can find themselves with fines, in court hearings or struck off entirely. They are codes that are taken into account by courts in order to consider how the general law applies to lawyers.
The code of conduct states that it ‘empowers’ solicitors to determine the appropriate application of these principles in the cases before them. Deliberately there’s more flexibility in how you achieve the right outcomes for your client which requires the individual’s discretion and judgement. Therefore, rather than prescriptive rules they are ‘mandatory outcomes’ and ‘non-mandatory indicative behaviours’.
The mandatory outcomes ’describe what you are expected to achieve in order to comply with the principles, the indicative behaviours are not mandatory they are ‘examples of the kinds of behaviours which may establish whether you have achieved the relevant outcomes and complied with the principles.
Explain the 3 parts of the Standard Conception Model
The Standard Conception Model:
The standard conception of the lawyer’s role consists of 3 key principles
- partisanship,
- neutrality, and
- nonaccountability.
For present purposes, the important implication of the standard conception is the exclusion of ordinary moral reasons from the deliberation of lawyers acting in a professional capacity.
So if a lawyer acts in accordance with being a partisan, applies neutral partisanship then they are acting in accordance with the standard conception model and thus ethically because as long as they act in the best interest for their client, irrespective of the outcome they have fulfilled their obligation.
The accountability section is defined by the fact that if a lawyer applies competent and diligent representation, i.e. doing their job correctly, isn’t blame worthy as a result of actions taken by clients. That lawyer has been a partisan, acting with neutral partisanship and thus not accountable in moral terms.
