Professionalism and Commercialism of Legal Practice
Profession is defined as an occupation in which a professed knowledge on some subject, field or science is applied; a vocation or career, especially one that involves prolonged training and a formal qualification. A professional is defined as a person belonging to, or proper to a profession, relating to, connected with, or befitting a profession or calling; preliminary or necessary to the practice of a profession engaged in a profession, especially one requiring special skill or training. Lawyers were first as professionals in the mid 13th century. This development of law as a body or discipline of coherent learning, the emergence of universities teaching law, that is, Roman law, in Western Europe, the formalized training and examination of law students, the formation of a body of qualified practitioners and the emergence of courts with complex procedures requiring expert knowledge. The observance of ethical guideline and enforcement of ethical principles was, and remains, the essence of a profession. Such ethical principles are the manifested structure of the minimum required service to the community. The lawyer’s duty to the court include:
o A duty of full disclosure of the relevant law
o A duty of candor not to mislead the Court as to fact, nor to knowingly permit a client to do so
o A duty to prepare the case properly and to know the relevant law
o A duty to refuse to permit the commencement or continuance of baseless proceedings or proceedings brought for an ulterior purpose, such as malice, or to exploit the advantage of Court delay
o A duty to exercise care, by testing any instructions, before making allegations of misconduct against anyone
o A duty to assist improper conduct, whether illegal to dishonest or other wise improper
The practice of both civil and criminal litigation is replete with rules and expectations of behavior of lawyers which run directly contrary to the apparent immediate interests of the client – the obligations of discovery, the obligations of disclosure, the obligations to isolate and co-operate to address only substantive issues in dispute to assist the court to further the just, quick and cheap resolution of conflict. These duties arise from the need of society to make the best use of scarce public resources and to make them available to all in society. Litigation is generally expensive, time consuming and stressful. The profession has a duty to assist in minimizing these features and in the efficient operation of the judicial system. The courts are becoming increasingly aggressive and assertive in their demands for efficient and co-operative conduct of litigation. These broader duties to the public and the administration of justice operate hand in glove with duties of the lawyer of good faith and fidelity of the highest order: the fiduciary in equity. These duties include the duty of honesty, of full disclosure,13 of not placing oneself in a position of conflict of duty with duty to another or with personal interest (other than the fee properly bargained for). It is the fiduciary duty and the recognition of its relevance to everyday aspects of legal practice in both organization of the lawyer’s firm and the conduct of the retainer that gives the foundation for important aspects of the expectations, and potential enforcement, of behavior, at least to the extent of the relationship of loyalty and service to the client.
A free civil society has a basal social need for skilled, honest, articulate lawyers who recognize that their advice must be fearless and based in learning and skill. That recognition must also be that their place is to assist in the vindication and protection of the rights of their clients under the rule of law by the administration of justice to which administration, ultimately, they owe their paramount duty. This is all familiar to you, I know. But to express it thus highlights, I think, what has always brought many young people to the study and the practice of law. They recognize that, as well as the opportunity to earn a living at a reasonable level, they will become part of an essential functioning institution of society of great importance. This recognition helps instill in the profession, in each new generation, the required idealism and sense of service necessary for the natural, organic regeneration of the ideal of service and of the intuitive adherence to the ethics and principles of the profession which are essential to the administration of justice and the healthy functioning of a free society.
0 comments:
Post a Comment