A lawyers's professional ethics over client's situation. How to act/react?

What does a Lawyer should do? Response to a situation? 

Laws and Cases from Nepal and other countries 

A client asks his lawyer to dispose the murder weapon hidden in a place and also asks him to take money for help. What would be the role of a lawyer in this case?

In the study, I will try to compare different principles of professional ethics will be explained taking in reference the given situation.

Some of the principles of professional conducts of a lawyer that I have looked into are as follows:

1. Principle of Confidentiality

This Principle stands on the proposition that a lawyer is not competent or permitted to testify to confidential communications made to her/him by her/his client, nor shall the client be compelled to disclose the information.[8] 

A lawyer shall not disclose the matters of the client and keep it confidential. However a lawyer may disclose this information with the consent of the client or with other purposes than the duty of care to the individual to whom that data relates should be done either with their consent or in an anonymized form.

Confidentiality in the given situation

In this case , the lawyer is obliged to maintain the confidentiality of what a client has said to him/her. A lawyer may not proceed with the case after knowing that his client have committed the crime but he/she should not reveal about his client asking him to dispose the weapon used in the crime.

What does Nepalese law say?

1. Evidences Act 1974
   Section 45 of the act prohibits a law Practitioner not to disclose any information given by his/her client unless it is permitted with the written consent of his/her client's authority to disclose any communication made to him/her in the course of or for the purpose of his/her employments as a law practitioner, by or on behalf of his/her client or to state the contents or conditions of any document with which he/she has become acquainted in the course and for the purpose of his/her professional employment or to disclose any advice given by him/her to his/her client.

Provided

(a) Any communication which has been provided to the law practitioner in furtherance of any legal purpose may be disclosed by him/her.

(b) Any fact observed by the law practitioner in the course of his/her employment as such, showing that any crime has been committed since the commencement of his/her employment.

     2. Code of Conduct of Law Professionals 1994:

Rule 3(xiv): Lawyer should not disclose the confidentiality about the information provided the client.

What do International laws say?

i) International Bar Association

Rule 14: Lawyers should never disclose, unless lawfully ordered to do so by the Court or as required by Statute, what has been communicated to them in their capacity as lawyers even after they have ceased to be the client’s counsel. This duty extends to their partners, to junior lawyers assisting them and to their employees.

ii) Code of Conduct for lawyers in the European Community 1988:

2.3. Confidentiality

2.3.1. It is of the essence of a lawyer's function that he should be told by his client things which the client would not tell to others, and that he should be the recipient of other information on a basis of confidence.

Some Case Laws

1. Smith [1999][15], a decision of the Supreme Court of Canada the privilege was justified on the ground that – "Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent."

1. In Minister v. Priest,[16] it is stated that “the communication, if privileged, is protected from disclosure. The privilege though wide, has its limits.” The conditions might include:
• Cases in which the professional knows or suspects that an individual is acting illegally.
• Cases in which the professional knows or suspects that an individual is harming others

1. Principle of Neutrality

• The standard conception states that the lawyer must remain professionally neutral with respect to the moral merits of the client or the client’s objectives.[17] The principle of neutrality relieves lawyers of moral responsibility for the harmful effects on others of actions taken in pursuit of their clients’ objectives.[18] According to the principle of neutrality, the lawyer must not allow their own view of the moral status of the client’s lawful objective. Richard Wasserstrom makes the point in a classic article,
• If lawyers were to substitute their own private views of what ought to be legally permissible and impermissible for those of the legislature, this would constitute a surreptitious and dangerous shift from a democracy to an oligarchy of lawyers.[19]

A lawyer should not approve or disapprove of the character of the client, the cause for which the client seeks the lawyer.[20]

Principle of Neutrality in the given situation

• A lawyer should maintain his/her neutrality. He/she should not approve or disapprove with what a client says. He/she should act as a technician in the court and represent the client but he/she should always maintain his/her neutrality.
• In this case a lawyer should not swing along with what his/her client. And maintain the neutrality while representing him in the court. He/she should not be bias towards the client as a criminal already.

Some Laws (random)

• ABA Model Rule, Rule 8.2.[21]
• Indian Rules of Professional Conduct, Rule 1.2. “Scope of Representation and Allocation of Authority Between Client and Lawyer” [22]
• CCBE Code of Conduct for lawyers in the European Community 1988: 2.1 Independence[23]

Some Case Laws

i) In the case, R v Paine (1792), the Attorney General to the Prince of Wales has opined that, “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or the defense, he assumes the character of the judge; nay, he assumes it before the hour of judgment”.

1. Emotional Relationship with the client

• The relation between lawyers and client should never extent from that fact of being lawyer and client only a client comes to the lawyer for the help and he/she not use misuse that power. A client during his/her case remains frustrated and lonely and lawyer should not use that emotion of client. Therefore lawyer should be circumspect, means focused on the legal matter than the physical, spiritual or emotional situation of the client.

Emotional Relationship with the Client in the given situation

        In this case a lawyer should not act out of empathy or sympathy to the client. Neither should a lawyer be overwhelmed by the position of the client. A lawyer should accurately act with his/her conscience and should not act out of any emotion while representing his/her client.

What do laws say?

1. National Legal Provisions:

Legal professional code of conduct, 1994, Rule 3(1)

• A lawyer should not perform any act which is against the fundamental principles of ethical standard.

1. Foreign laws
1. India, Advocate Act, 1961 : Rule 15- It is the duty of an advocate to uphold the interest of his client fearlessly by all fair and honorable means without regard to any unpleasant controversies to him or any other…”
3. England, Legal Services Act 2007
4. Section 3: (a) Authorized persons should act with independence and integrity, (b) authorized persons should maintain proper standards of work
2. International laws

• International Bar Association, International Code of Ethics, Rule 2: Lawyers shall at all times maintain the dignity of their profession and act with honor and integrity.

Some Case Laws

• John. F Warner (WSBA No.14571, admitted 1984) of Seattle, a lawyer, was suspended for two years pursuant to a stipulation approved by the disciplinary board on September 17, 1999 and by the supreme court on December 7,1999. He entered into a sexual relationship with a client, marrying that client wile married to someone else, and making false statements to conceal the prior marriage. The client whom mo. Warner represented has been shuttering from serve depression in a social security government matter.

1. Fraudulent Suggestion to the Client

• A lawyer as a counselor is supposed to provide suggestions only in the righteous and moral issues. Being a highly responsible and learned member of the society, lawyer’s conduct that facilitates a client’s commission of a crime comes comfortably within the definition of accomplice in modern criminal law. The duty of a lawyer is clearly to advise a client as to what the law is and to counsel against the breach of the law. If a client wishes to proceed with actions which are …criminal, it is the duty of the lawyer to advice that s/he can no longer act.[24]

Fraudulent Suggestion to the Client in the given Situation

• A lawyer who gives a fraudulent suggestion to the is liable under the criminal law as a accomplice. The duty of the Lawyer to is to represent the client in the court not to accomplice him/her. Thus in the present case a lawyer should not suggest a client to hide the weapon nor should he/she do so.

What do Laws say/

1.  Provisions regarding fraudulent suggestion under Nepalese Laws: Code of    Ethics of Nepalese Lawyers 2051: Section 3(1)(a) and 3(1)(b)[25]
2. Provisions regarding fraudulent suggestion in laws of other states
• American Bar Association Model Rules of Professional Conduct, Adopted in August 1983:Rule 1.2,  Scope of Representation[26]
• Rule 1-102 of the code - A lawyer shall not 1. Violate a disciplinary rule 3. Engage in illegal conduct involving moral turpitude 4. Engage in conduct involving dishonesty, fraud, deceit or    misrepresentation.
• Canon 3 of Modal Rules (ABA Code): A lawyer shall assist in preventing the unauthorised practice of law.
•  Supreme Court Bar Association Rules of India, Section 6[27]

Some Case Laws

• In Clark v. United States[28], the US Supreme Court writes, “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”
• Ryder’s Case[29], Ryder represented an individual who was accused of bank robbery using sawed off shotgun. FBI told Ryder that his client has possession of bills taken in the bank robbery when he was arrested. Ryder’s client told him that a man he would not identify had paid him $500 to put a package on a safety deposit box.  When Ryder opened his client’s box, he found a sawed-off shotgun and a bag of money along with other items. Ryder transformed the content of his client’s box to a new box that he had opened in his name. The FBI later discovered the Ryder’s box containing the money and the gun. Ryder testified that he intended to return the money to the owner for the future. His purpose of transferring the money and the gun to his own box was to support an argument that the money and gun were admissible in a prosecution against his client because of the attorney-client privilege. The court removed Ryder from the case. The US attorney instituted disciplinary proceedings against him. The District Court suspended Ryder from practice for 18 months.

 Responsibility towards the Third Party

• Lawyers should seek to do justice and consider the merits of clients' claims and goals relative to those opposing parties and other potential clients. The competing ideals are firstly the overriding lawyer's duty as an advocate and a duty to his client, as against the lawyer's role as an officer of the court owing loyalty to the public.
• A lawyer must serve the interests of justice as well as those whose rights and liberties he is trusted to assert and defend and it is his duty not only to plead his client's cause but to be his advices. A lawyer's function therefore lays on him a variety of legal and moral obligations (sometimes appearing to be in conflict with each other) towards: the client; the courts and other authorities before whom the lawyer pleads his client's cause or acts on his behalf; the legal profession in general and each fellow member of it in particular; the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society.
• It should be the first duty of a member of the legal profession to compose family difference and settle disputes and controversies by amicable settlement and thereby prove how mistaken is the popular notion that lawyers foment dissensions for their own ends.[30]

Some Case Laws

• In People v. Beattie[31], the court expressed that a lawyer “owes to his client the duty of fidelity, but he also owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession
• In Rondel v. Worsley[32], Lord Denning quotes, “[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. [33]

Author’s Impression

In the given case if the lawyer helps his/her client to dispose the murder weapon  though s/he is not involved in conspiracy or committing the crime is now involved in the concealment of the crime. His/her act may be connected with eliminating the evidence, which falls under the criminal liability as the accessory after the fact under modern criminal law.

An accessory after the fact is one who assists a felon after his/her crime with a view to shielding him from justice. Whoever, knowing that an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact; one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon's apprehension, trial, or punishment.[34] Examples are hiding felon from justice, enabling him/her to escape before arrest, removing evidences against him/her, etc.

According to the professional code of conduct for lawyers, 2051, 3(1) (wa), A lawyer should not engage himself/herself in any act resulting to criminal offence. If found committing those offence s/he is liable according to 7(3) of the same act i.e. his/her practitioner licences is cancelled.

A lawyer may face this kind of situation many times during his/her professional life. And, this type of situation also may not be stated in the laws every time. But a lawyer should not act for his/her interest in this situation. Being a lawyer s/he should act according to ethics and his/her morality. Being a social engineer, a lawyer should also keep in mind the goodwill of the society. A lawyer should not assist any person in any kind of criminal offence. It is not only against the ethics and morality of the lawyer but also a criminal offence.

[1]Rai Kailash , Legal ethic :accountancy lawyers and bench bar relation , (Center Law Publication), 49.

[2]http://www.articlesbase.com/ethics-articles/professional-values-and-ethics-1663610.html#ixzz1CxA9LOuM(accessed on 7 May 2011).

[3] (n 1).

[4] (n 2).

[5] Ibid.

[6]http://www.law.cornell.edu/ethics/fl/narr/FL_NARR_1_01.HTM(accessed on 7 May 2011).

[7]http://www.abanet.org/cpr/mrpc/rule_8_4.html(accessed on 7 May 2011).

[8]http://www.law.cornell.edu/ethics/pa/narr/PA_NARR_1_06.HTM(accessed on7 May 2011).

[9] Rule 17-An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.

[10] CODE OF PROFESSIONAL RESPONSIBILITY (1988), PRule 15.02 - A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.

[11] Id, Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except;

    (a) When authorized by the client after acquainting him of the consequences of the disclosure;

    (b) When required by law;

    (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.

[12] Id, Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto

[13] Id, Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.

[14]Id,  Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.

[15] Smith v. Jones, [1999] 1 S.C.R. 455 .

[16] Minter v Priest, [1930] AC 558.

[17] The Standard Conception of the Lawyer’s Role available at http://www.ashgate.com/pdf/SamplePages/Counsel_of_Rogues_Ch1.pdf (accessed on 9 May 2011); Ted Schneyer, The Promise and Problematics of Legal Ethics from the Lawyer's Point of View (Yale Journal of Law & the Humanities 2004) available at http://www.lexis.com/research/retrieve?_m=5b6050497ab5702807a36caa95afc7d2&csvc=le&cform=byCitation&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtb-zSkAz&_md5=82724051df33c4507ce8cd2bb6fd9329 (accessed on 9 May 2011).

[18] Beyond Cardboard Clients in Legal Ethics available at  http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=katherine_kruse&sei-redir=1#search=%22legal+ethics++principle+of+neutrality%22 (accessed on 9 May 2011).

[19] Richard Wasserstrom, ‘Lawyers as Professionals: Some Moral Issues’, Human Rights, vol. 5 (1975) cited from The Standard Conception of the Lawyer’s Role available at http://www.ashgate.com/pdf/SamplePages/Counsel_of_Rogues_Ch1.pdf (accessed on 9 May 2011).

[20] Asonon H. Robert et al., Cases and Materials in Professional responsibility, American Case book series, 6.

[21] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

[22] A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

[23] 2.1.1.The many duties to which a lawyer is subject require his absolute independence, free from all other influence, especially such as may arise from his personal interests or external pressure. Such independence is as necessary to trust in the process of justice as the impartiality of the judge. A lawyer must therefore avoid any impairment of his independence and be careful not to compromise his professional standards in order to please his client, the court or third parties. 2.1.2. This independence is necessary in non-contentious matters as well as in litigation. Advice given by a lawyer to his client has no value if it is given only to ingratiate himself, to serve his personal interests or in response to outside pressure.

[24] William H. Simon, ‘Ethical Discretion of Lawyering,’(1988) Harvard Law review101 available at http://www.cui-zy.cn/Recommended/Yalelaw/SimonLawyerEthics.pdf (accessed on 7 May 2011).

[25] Lawyers should not perform act which is against the fundamental principles of ethical standards.

Section: Lawyers should not encourage its clients to file a false case. Lawyers should not be influenced to cause harms to others. Lawyers should not misuse the judicial administration while doing their job.

[26] (d) A lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences or any proposed cause of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of law.

(e) when a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other laws, the lawyers shall consult with the clients regarding the relevant limitations of the lawyer’s conduct.

[27] Section 6: Duty of members of Supreme Court Bar Association  Clause (iii) (a): A member shall not knowingly make a false statement of a material fact or law to the court.

[28] Clark v. United States, 289 U.S. 1, 15 (1933).

[29] 263 F. Supp 360 (ED 1958); Rhode Dedorah L., Legal Ethics, David Luban, [Westbury, New York: The Foundation Press, Inc., (1995)], 307.

[30] Bhalla, “Advocate Act and Professional Ethics”, [Aurangabad: Nasik Law House (2001)], 249.

[31] People v. Beattie, 27 N.E. 1096 (Ill. 1891)

[32] Rondel v. Worsley [1966] 3 W.L.R. 950 (Eng. C.A.) at 962-63

[33]http://www.advocates.ca/assets/files/pdf/education/Symposium-on-Professionalism/Duty_to_Court.pdf (accessed on 29 April 2011).

[34] http://www.lectlaw.com/def/a007.htm (accessed on 11 March 2011).