Examining The Duty Of Lawyers To The Court And Clients: A Critical Essay.

Duties of a Lawyer to the Court

Discuss about the Ethics And Professional Practice In Lawyer’s Duty.

The legal profession has the most extensive ethical rules of any other profession in the world. As per the professional standards, being a professional, lawyers play a role of officers of the courts[1]. An advocate has both a benefit and burden. The benefit is to get the chance of career in law stream as a member of the legal profession and the burden is to perform the obligations to apply law rules. While discussing the lawyer’s duty, it is found that they have various duties to the court, clients, society and fellow advocates[2]. It is a responsibility of lawyer to perform his duty to the court and it becomes mandatory to apply law rules[3]. It is also a duty of lawyer to assist the court in justifying the issues timely and in the most appropriate manner[4]. Upholding this duty to court makes the base of litigation (both civil and criminal)[5].These duties require lawyers to act with competence, honestly, due diligence and due care. This ensures that lawyer has a duty to his client to raise issues and ask any questions. Sometimes this predominant duty creates clashes with lawyer’s duty towards their clients and court. But as per priority, lawyer’s duty to the court comes first and his duty to the client becomes secondary.

It is a well-known fact that law is a superior branch of a structured knowledge so lawyers are considered professionals. In this way it is more important that a lawyer must maintain proper professional standards in legal practice and emphasis on the element of public service consistent with the idea of professionalism[6]. It is the important duty of lawyer to continue the fair and self-regulated administration of justice without partiality. It makes a lawyer responsible to contribute in maintaining impartial administrative justice[7]. It is required by legal professionals that they should conduct themselves with integrity[8]. They should try to maintain public faith in court process[9]. In addition of these duties, an advocate is required to deal with fellow advocates with loyalty[10]. In this essay how a lawyer’s duty comes to the court first then second to the client is discussed and critically examined.

Lawyers have certain duties to the court which defines a lawyer’s role. Firstly, lawyers should be well-mannered and civil. They should always speak and write in respectful way. As per this rule, lawyers are not allowed for ex parte communication with the court (including judge’s staff) on any undecided matter by the written communication or telephone or letter or any other mean. They should comply with law and rules and act with honesty at the time of presentation in the court. Further, a lawyer can make remarks only to the judges not to the opposing council in court room and it is a duty of advocate not to communicate any pending matters to the judge or any other judge privately and not to act illegally towards adverse party. It means if any lawyer noticed that other lawyer is making mistake and charging the extra fees from his client then lawyer should not do anything and draw the attention from this matter. They have also some rights and powers to make complaints against any judicial officer to the proper authorities[11].

Duties of a Lawyer to the Client

In the context of legal practice, lawyers should follow dress code during legal proceeding but they are not allowed to wear that gowns or bands in public places except court, ceremonial occasions and law council of Australia. The main thing is to care that lawyers should be punctual and should not enter in any manner which diminishes the dignity or decorum of the court. Lawyers are not allowed to practice in the court where their parents or any nearest relative is magistrate. As per the rule, advocates cannot appear before judicial authority against the establishment in which they are member of management. But this rule is not applicable to the lawyer who does not take fee on the behalf of law council of Australia, Australia bar association[12].

As per the Legal profession conduct rules 2010 of Legal Profession Act 2008, lawyer should boost faith of public in judiciary and should not have financial interest in the matter assigned to him. For example, if a lawyer is a director in any company then he cannot take brief from that company. The Lawyers should take care of thing that they should always accept the requests which are appropriate regarding trial dates, adjourned cases. It is clear that lawyers can expand the administration of justice by performing all the duties to the court[13].

Generally, when someone faces any legal problem, a reliable lawyer is required by him who can solve his case quickly and give effective remedies on reasonable fee. In this reference some Legal Profession Conduct Rules 2010 have been placed under Legal Profession Act, 2008[14]. These rules define secondary duty of lawyer to the client. An advocate should perform these defined duties in proper manner so as to keep the healthy relations with client[15]. As lawyers and his client have fiduciary relationship[16]. It is a duty of lawyer not to disclose their client’s information to other person unless lawyers are permitted by their client to disclose his information. But a lawyer may disclose the information to the person if disclosure of information is required by law. It means lawyer can disclose about his client as per the permission of law. Further it is a duty of lawyer to inform a client about his rights, powers and the matters related to their relationship. They should also keep informed their client about the progress on the matters of client but wrong information should not be given about his client during civil proceedings. It is main duty of care to client that an advocate should not hurt client’s interest by his acts or any error or blunders. If an advocate receives the money on the behalf of his client then it is necessary to inform his client about the amount received. To have better understanding of case, an advocate should communicate his client before start proceedings and follow the instructions given by client in regarding case or event.

Other Ethical Considerations for Lawyers

Furthermore, advocates should not be shy from their clients to have better communication. So it is necessary that lawyers should be fully open to their client but they should never accept any commitment or arrangement out of his capacity. It is also a responsibility of an advocate to notify his client about legal aid. Advocates should tell the clients that they will be eligible for the legal aid if it is not possible for client to raise money or borrow money to give fees of advocate. According to the rules under Legal Profession Act, 2008, lawyers have some defined duties in respect of fees. Such as an Advocate cannot claim cost from other person on the behalf of client unless his client has a right to claim that cost. After receiving the request of client, a lawyer should render an invoice timely for the referred work. This is against the professional ethics to stipulate a contingent fee on the outcome of litigation or decide to have proceeds of litigation[17]. A lawyer should take fee which is appropriate according to fellow advocates and according the type of the case. While deciding the fees, a lawyer should consider some factors such as complexity of any event or matter, time, scale of cost, his kill to handle case and the agreement made between client and lawyer. The fee shall not be charged for the regular services or the services associated with the property in terms of percentage which is dependent on the matter of success. Special circumstance may justify his refusal to accept a particular brief.  If in any circumstances, advocate withdraws from any case then it is necessary to refund the fee to the client charged by him after giving the reasonable notice to his client.

In addition to duty of lawyer to his client, an advocate should account expenses, deductions and amount received from client or on the behalf of client properly. It is a duty of lawyer to provide copy of documents and accounts on the demand of his client. In this regard lawyer should always charge reasonable fee. When advocates receive any amount on the account of fee or expenses then they shall not divert the full or any part of amount received for expenses as fee unless they get written instruction from their client about transfer the money. As per the rules mentioned under the Legal Profession Act, 2008 if a lawyer is witness himself of any matter or has reason to believe to be a witness then case should not be accepted. As per the rules, a lawyer who is a principle of legal practice should not allowed any other name of person to act on sign unless that person is practitioner and who is his partner or employee. On the question of other business and profession, rules define that lawyer should not carry any other business or profession but there are some exceptions are here. It is also describe that when counsel does not inform the client of subsequent legal proceeding, then it consider as breach of duty by lawyer and will be answerable for professional negligence[18].

In respect of borrowing the money, it is a duty of advocate not to lend the money to his client for the legal proceedings in which lawyer is assigned by clients. It is further added that Advocates shall not give guarantee for their client as well as shall not certify it that legal proceedings are required by clients. It is necessary for Lawyers to give knowledge about the process of court to their clients so as to enhance their trust in judiciary and an advocate should never come into arrangements in which funds are converted into loans.

While considering the both parties of the case, it is defined under rules that an advocate should not act or accept the same case of opposite party if that case is already taken. Under the legal profession rules it is further said that the bid shall not be auctioned in the court by any means or through the exchange mode, sale mode or via gifts by the advocates for his benefits or in any other possible capacity. It is also a duty of lawyers to take care of sharp practices. The sharp practices can be avoided by the advocates which involves acting without the warning slips or taking due advantage, mistakes and irregularity on the part of other lawyers. The best example of sharp practice is Schreiber v. Mulroney[19]. The conduct of lawyers is governed by rules mentioned under Legal profession act, 2008. According to it, a lawyer should not involve in illegal or unlawful discrimination or sexual harassment. A lawyer should also not include in workplace bullying[20]. If any lawyer misconduct then court may take a consequential finding that the practitioner is not of good fame and character and therefore unfit to practice.

So as per the above discussion, it is cleared that generally the rules on professional standards apply to the lawyer as advocate. The rule is formulate and applied to the legal proceedings as well as to the proceedings submitted to administrative tribunals, relevant authorities and boards notwithstanding the functions or the informalities of their procedures. It can be observed that a responsibilities of lawyers towards the court is applicable to each and every aspect of their practice. While having an in-depth analysis and focus on the duties of the advocate towards their clients, it is static that obligations to be performed to his client are of secondary nature and to those due to the court may not be so dynamic. However, the responsibilities of lawyers which are discussed above are foundation to carry legal profession as a self-controlled and well-structured profession. Henceforth, lawyers may disagree with the method of the duty towards the court. It is debatably defined as the advocate’s part in which the independent and impartial jurisdiction and creating the public faith is priority.

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