When discussing working in the field of law and order, many people highlight that being a lawyer is not a business but a calling. This distinction is drawn by the fact that in their career, lawyers should not only pursue financial profits and prosperity but also be an agent of ethics. One may say that due to the versatility and complexity of the profession, a lawyer plays a variety of roles such as an expert technician, a counsellor, and an effective leader.
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Thus, lawyers not only apply existing laws to a particular situation and its factual contents but they also convey the ideas of what is “right” beyond the scope of law. Lastly, as decision-making leaders, lawyers often find themselves in a position of tremendous power and accountability that is, however, limited by their ethical duties. This paper provides a brief historical overview of the history of legal ethics in the United States and sheds light on the scope of a lawyer’s fiduciary duties.
History of Legal Ethics in the United States
The history of legal ethics in the United States of America can be traced back to 1878 when high-status lawyers founded an exclusive social fraternal organization, American Bar Association (ABA). Around that time, many people were already discussing lawyers’ role in molding public sentiment. Eventually, in 1905, Theodore Roosevelt’s speech at Harvard University gave an impetus for creating Canons of Professional Ethics. President appealed to graduates in the hope that they would set an example by “paying scrupulous heed not only to the letter but to the spirit of the laws” (Roosevelt 2014, p. 315).
To Henry St. George Tucker, president of ABA, it was an inquiry to examine the scope of the profession and its moral implications. In 1908, to prevent a further decline of lawyers’ public standing that had been taking place since the Civil War, Canons were created. Alongside with the drafting of Canons, Tucker proposed implementing a comprehensive course in the subject of legal ethics and creating a culture of honor in American universities.
Although Canons are no longer in use, the document had a major influence on successive codes and rules in the jurisdiction of the United States. Canons contain passages the contents of which cannot be recognized as outdated even now. For instance, the document goes into detail about adverse outcomes and conflicts of interests which remains relevant. The authors of Canons also emphasized the importance of communication between a lawyer and their client: “A lawyer should endeavor to obtain full knowledge of his client’s cause before advising thereon” (American Bar Association 1908, p. 5).
In 1977, ABA appointed a commission to reevaluate professional standards which resulted in the creation of Model Rules of Professional Standards. Since then, Model Rules have undergone numerous amendments, the most recent of which were made in 2018. The last version is the most relevant source of information about the scope of lawyers’ fiduciary duties.
Fiduciary Duties: 5 Cs
A fiduciary is a person who is in a legal relationship of trust with one person or a group of persons. The parties in a fiduciary relationship are seemingly unequal: first and foremost, a person who hires a lawyer seeks advice, aid, and protection. By doing so, a client puts themselves in a vulnerable position, for example, by giving access to sensitive information. A lawyer should not take advantage of their superior position in this context and have high morals. Martyn and Fox (2014) referred to the set of primary fiduciary duties as 5 Cs: competence, client control, communication, confidentiality, and conflict of interest. The following paragraphs will explain each of the mentioned constituencies in detail.
Provide Competent Legal Services
Every client hopes to find an experienced and knowledgeable lawyer, and a question arises as to how one could assess a lawyer’s competencies. Typically, an evaluation is conducted based on two criteria:
- appropriate training, academic achievement, and successful outcomes, for instance, in advocacy;
- status and reputation, i. e., avoidance of negligence (American Bar Association 2013).
As shown above, a lawyer’s competencies encompasse both technical excellence and appliance of professional ethics. Two elements are interconnected, for it is impossible to use knowledge appropriately with no regards to morals as much as it is unlikely to uphold high moral grounds without studying duties and responsibilities.
Respect Client Control of the Goals of Representation
There is a broad consensus that Western ethical concepts appraise and promote a person’s autonomy, i.e., their ability to make well-informed decisions for themselves. In law, while providing expertise and mentorship, a lawyer should abstain from interfering with their client’s autonomy even if the latter allows them to decide on some things. According to Heinemann, Lee, and Wilkins (2014), when approaching a client’s vision and objectives, a lawyer should open a dialogue with “what is legal” which should be later transformed into “what is right?”. For instance, a client may be attempting to overturn a regulation or propose a new one, and a lawyer should represent their interests accordingly. All in all, the ability and the moral right to control the goals of representation make a client an active participant of the legal process.
Initiate Communication with the Client
Communication between a lawyer and a client is of great importance. Clients’ complaints are often caused by miscommunication and misunderstanding rather than a legal specialist’s lack of competence and failure to provide service. In her advice to lawyers on initial client interviews, Aaron (2013) emphasizes how vital two-way communication is. The case has the potential to be robust only if a client “conveys the problem – the basic facts and circumstances – as well as his goals, interests, and constraints” (Aaron 2013, p. 9). At the same time, it is expected that a lawyer will hold each interaction to the highest standards of openness and honesty without intention to conceal or deceive.
Keep Client Confidences
Effortless and unhindered communication is only possible if a client trusts their lawyer wholeheartedly, and one may argue that a firm belief that their confidentiality will not be breached is the foundation of such trust. For instance, while working with clients, lawyers often get access to sensitive information that is likely to be detrimental to one’s reputation if gone public. According to Giesel (2015, p. 3), “the duty of confidentiality not only forbids revealing information but also proscribes a lawyer’s use of confidential information about a client to the disadvantage of that client”. Furthermore, a lawyer has no right to reveal information about their former clients unless those facts have become generally known.
However, disclosure may be justified in some cases; for instance, in compliance with Model Rule 1.6(b), a lawyer is entitled to revealing information to prevent death, bodily harm, crime or fraud (American Bar Association 2018a). For instance, in Clark v. United States (1933), Clark lied under oath to become a juror for United States v. Foshay (1932). She claimed that she had no affiliation with Foshay even though she used to work for him and he was her husband’s friend.
Were it not for her, Foshay would be found unanimously guilty, but she disrupted the court process to aid his aquittal. It was later revealed that Foshay’s attorney was aware of the deception but did not come forward to help his client. The Supreme Court established that an attorney cannot be complicit in a fraud by not telling the truth. Therefore, fulfilling the fiduciary duty of confidentiality or violating for a rightful cause requires great integrity and the ability to foresee potential outcomes.
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Resolve Conflicts of Interest
A conflict of interests occurs when a lawyer’s representation of one client will have adverse outcomes for another client and interfere with their interests. Concurrent interests may also arise due to a lawyer’s responsibilities to former clients or persons outside the practice. It is stated in Model Rule 1.7 that if a conflict occurs, a lawyer should whether gain informed consent from both clients or withdraw from representation altogether (American Bar Association 2018b).
In practice, it is better to avoid such situations which may be attained by an extensive background search. For instance, if a new client seeks legal assistance, a law firm needs to gather information about the opposing party to make sure that none of the firm’s employees ever represented them. Only by avoiding or successfully resolving conflicts of interests may a lawyer retain their loyalty and independence of judgement.
Breach of a Fiduciary Duty
A person in a fiduciary capacity is held to the highest standards of care and loyalty. However, lawyers do not always conduct in compliance with the ethical framework, and when such misconduct occurs, one may speak about a breach of fiduciary duty. In this case, those who were impacted by a violation have the right to file a lawsuit against the fiduciary that failed to fulfil their responsibilities.
Common types of legal malpractice include prioritizing the third party’s interest above that of a client, not disclosing errors and contradictions, and persuading a client to accept a minimal settlement. Some of the cases deal with mere incompetence such as giving inappropriate advice or failing to provide any information. Another sign of dubious ethics is the inability to meet filing deadlines or choose appropriate papers for filing.
Obviously, a breach of fiduciary duty does not remain unpunished. A logical outcome of the negligence of fiduciary duties is a loss of reputation which is of invaluable importance in the legal field. In case a breach of confidentiality occurs, a lawyer may face consequences that range vastly from a sizeable award for damages to complete disbarring. In the United States, every state has its version of ethical rules that govern legal professionals. Lawyers who fail to provide excellent service face disciplinary actions or sanctions in accordance with them.
It is difficult to find another field where so many complex and delicate questions of duty are continually arising as in the legal field. The profession of a lawyer is multifaceted and encompasses not only theoretical knowledge and practical skills but also ethics and morals. In the United States, legal ethics have a long, rich history dating back to the 19th century. The principles have evolved since then, and currently, the framework of fiduciary duties prescribes a lawyer to let a client determine their goals, maintain efficient communication, and keep information confidential. A lawyer is held to a high standard of loyalty which entails resolving conflicts of interests and prioritizing their client. Fulfilling fiduciary duties is paramount to legal practice, and their breach usually results in legal action against a lawyer, sanctions and professional repercussions.
Aaron, MC 2013, Client science: advice for lawyers on initial client interviews. Web.
American Bar Association 1908, Canons of professional ethics. Web.
American Bar Association 2013, Essential qualities of the professional lawyer. Web.
American Bar Association 2018a, Rule 1.6: confidentiality of information. Web.
American Bar Association 2018b, Rule 1.7 conflict of interest: current clients – comment. Web.
Clark v. United States (1933) 289 U.S. 115.
Giesel, GM 2015, The duty of confidentiality and the attorney-client privilege: sorting out the concepts. Web.
Heineman, BW, Lee, WF Jr & Wilkins DB 2014, Lawyers as professionals and as citizens: key roles and responsibilities in the 21st century. Web.
Martyn, SR & Fox, LJ 2014, Traversing the ethical minefield: problems, law, and professional responsibility, Wolters Kluwer Law & Business, New York, NY.
Roosevelt, T 2014, Presidential addresses and state papers: April 7, 1904 to May 9, 1905, vol. 3, Literary Licensing, LLC, New York, NY.