Lawyer and Client Relationship and Lawyers conscience

Introduction
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1273&c
ontext=yjlh
These pages present my problem areas in legal ethics. Although this
general approach to legal ethics is a common one, the specific form of the
argument that follows is unusual and warrants some comment. In particular,
the argument does not attempt (at least not as its primary goal) to say whether
the present regime of legal ethics the law governing lawyers as it stands-is
justified or wrongheaded, nor does it attempt to say what ethical principles
should ideally govern the professional conduct of lawyers. Instead, my problem
areas take the present regime as given and employ philosophical analysis to
explain the moral condition of lawyers who practice under this regime.
My aim is to develop an account of what it is like-of what it is like not
psychologically but ethically to practice law under the present regime, with a
special emphasis on the moral tensions that practicing lawyers face. In this
sense, my problem areas proceeds not from the point of view of the philosopher
(or justices or any policy maker) who stands outside the system of legal ethics
as it is, but instead develops the point of view of the lawyer practicing within
this system. Hence my title Lawyer and Client Relationship and Lawyers
conscience.
But I do believe that even though the law is ultimately beholden to extra-
legal values, legal regimes can construct doctrines, and indeed human,
relationships that cast long shadows in the light of these extra-legal values. An
effort at answering questions will, I think, readily justify itself. There is a widely
remarked upon crisis in the modern legal profession, but the character of the
crisis and indeed its very existence are hotly debated.
Part of my aim, then, approaching the problems of legal ethics from the
lawyer's point of view will have enabled me to present these problems more
clearly to the philosopher's point of view (and also to the policy-maker's the
congress or the judiciary) than has so far been possible.
Lawyers as they represent particular clients rather than justice writ
large, and they represent these clients by means of "zealous advocacy," that is,
with "warm zeal." Unlike legislators, adversary lawyers are not charged fairly to
balance the interests and claims of all persons. Instead, they care
disproportionately and at times almost exclusively about their clients' interests.
And unlike juries and judges, adversary lawyers are not charged to discern a
true account of the facts of a case and to apply the law dispassionately to these
facts. Instead, they try aggressively to manipulate both the facts and the law
into a shape that benefits their clients. In each of these ways, adversary
lawyers commonly do, and indeed are often required to do, things in their
professional capacities, which, if done by ordinary people in ordinary
circumstances, would be straightforwardly immoral.
For me some lawyers are partial; they prefer their clients' interests over
the interests of others in ways that would ordinarily be immoral. The most
famous statement of this preference, and also one of the most extreme, was of
course made by Lord Brougham, who said that a lawyer ".... by the sacred duty
which he owes his client, knows, in the discharge of that office but one person
in the world-THAT CLIENT AND NONE OTHER. .." and added that a lawyer
must continue pressing his client's interests "by all expedient means" and
"reckless of the consequences," and even though (as in the case of Lord
Brougham's own defense of Queen Caroline's divorce case) he should "involve
his country in confusion for his client's protection."' At the very least, lawyers
must, as Charles Fried has pointed out, dedicate greater energies to promoting
their clients' interests than is consistent with the efficient, let alone fair,
distribution of their professional talents.

Abstract


The relationship between the attorney and the client is said to exist
where a person employs the professional services of an attorney or seeks
professional guidance, even though the lawyer declines to handle the case (Keir
vs. State, 152 Fla, 389, 11 So. [2d] 886 [1943]).
The privilege of a client to keep communications to his attorney
confidential is predicated upon the clients belief that he is consulting a lawyer
in that capacity and has manifested his intention to seek professional legal
advice. There is authority to support that theory that it is enough if the
prospective client reasonably believes that the person consulted is a lawyer
, although in fact he is not as in the case of a detective pretending to be a
lawyer (People vs. Barker, 60 Mich. 277, 27 N.W. 539). For the privilege to
exist, payment of fee is not essential.
Accordingly, the privilege is not confined to communications regarding
actual pending cases. The communications may refer to anticipated litigations
or may not refer to any litigation at all. It is sufficient that the statements have
been made in the course of legitimate professional relationship between the
attorney and the client (Riano, 2009, Evidence, page 283).
In the case of Santiago vs Fojas, the Supreme Court held that it is
axiomatic that no lawyer is obliged to act either as adviser or advocate for every
person who may wish to become his client. He has the right to decline
employment, subject, however, to Canon 14 of the Code of Professional
Responsibility.
Legal Ethics require knowledge of and familiarity with the Code of
Professional Responsibility. The Problem arises when the lawyers personal
belief or the set of values he believe like his religious beliefs is contrary to what
is legally acceptable principle. Will the lawyer advise his prospective client base
on his personal beliefs, e.g. Religious beliefs, or in accordance to what is legally
accepted principle? What is right or wrong for a lawyer to do that may be
against his/her conscience but demanding by his fiduciary duty to his/her
client.
We have two (2) situations, first, when a lawyer confronted with a
situation in giving advice to his long time friend and his wife. My problem here
is the capacity in which a lawyer acts, whether he gives advice as a lawyer or
as a friend, considering that many times, his legal advice is sought in informal
and unstructured situations. (Teaching Manual on Legal Ethics, University of
the Philippines College of Law Faculty Development Foundation Inc. American
Bar Association-Asia Law Initiative (ABA-ALI) United States Agency for
International Development (USAID).
Second situation, when a couple was trying to conceive, but have not
been successful. Eventually, the wife became pregnant; unfortunately, she
started having difficulty breathing and was easily fatigued. One day, she was
rushed to the hospital because she couldnt breathe. The Doctor diagnosed her
as having mitral valve stenosis, a congestion of the heart due to valve defect.
The doctors say that the chances of Wendy carrying the baby to term are slim
because her heart would not be able to take it. The wife doesnt want to die.
She contemplates the possibility of abortion, and seeks advice from a lawyer.
The problem that arises is if the lawyer advises the wife to have an abortion,
would he be breaking his oath as a lawyer?

Not only does a lawyers conscience have a role play in his work, but its
relational dimension will loom large because the lawyers moral claims will be
articulated, and perhaps even formed, in dialogue with the clients claims.
Further, even outside the attorney-client relationship, there is an expanding
array of venues for the development of relationships conducive to the
formation, articulation, and living out of professionally relevant moral claims.
(Conscience and the Common Good: Reclaiming the Space between Person and
the State, Robert K. Vischer)

We have to consider the following:

1. Rule 1.01 A lawyer shall not engage in unlawful, dishonest,
immoral, or deceitful conduct;

2. Rule 15.08 A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make clear to
his client whether he is acting as a lawyer or in another capacity.

The religious lawyering movement, to a significant extent, can be
understood as another incarnation of cause lawyering. Cause lawyering
generally is associated with legal efforts to achieve greater social justice. Cause
lawyers are morally activist lawyers, which mean that they hold themselves
morally accountable for the means they employ and the ends they pursue on
behalf of clients. Like religious lawyering, cause lawyering presumes that the
dictates of a lawyers conscience will and should play a role in her professional
life. (Conscience and the Common Good: Reclaiming the Space between Person
and the State, Robert K. Vischer)


CONCLUSION

In resolving the first scenario above, the following cases decided by the
Supreme Court together with the commentaries of authorities are controlling.

In the case of Hilado v. David, 84 Phil 569, the Supreme Court held that:
In order to constitute the relation (of attorney and client) a professional one
and not merely one of principal and agent, the attorneys must be employed
either to give advice upon a legal point, to prosecute or defend an action in
court of justice, or to prepare and draft, in legal form such papers as deeds,
bills, contracts and the like. To constitute professional employment it is not
essential that the client should have employed the attorney professionally on
any previous occasion. It is not necessary that any retainer should have been
paid, promised, or charged for; neither is it material that the attorney
consulted did not afterward undertake the case about which the consultation
was had. If a person, in respect to his business affairs or troubles of any kind,
consults with his attorney in his professional capacity with the view of
obtaining professional advice or assistance, and the attorney voluntarily
permits or acquiesces in such consultation, then the professional employment
must be regarded as established. (5 Jones Commentaries on Evidence, pp.
4118-4119.)

Formality is not an essential element of the employment of an attorney.
The contract may be express or implied and it is sufficient that the advice and
the assistance of an attorney is sought and received, in matters pertinent to his
profession. An acceptance of the relation is implied on the part of the attorney
from his acting in behalf of his client in pursuance of a request by the latter. (7
C.J.S., 848-849)

In Junio v. Grupo, Administrative Case no. 5020 (Dec. 18, 2001),
Complainant Junio entrusted to respondent Atty. Grupo, the amount of
P25,000.00 in cash, to be used in the redemption of a parcel of land. Atty.
Grupo failed to redeem the property. Junio demanded the return of money, but
despite demands, Atty. Grupo refused to refund money.

Grupo, on the other hand, admitted receiving the amount in question for
the purpose for which it was given, but alleged that when transaction failed,
respondent requested the complainant that he be allowed, in the meantime, to
avail of the money because he had an urgent need for some money himself to
help defray his children's educational expenses. The family of the complainant
and that of the respondent were very close and intimate with each other. They
were considered practically part of respondent's own family. That is why, when
complainant requested assistance regarding the problem of the mortgaged
property, respondent had no second-thoughts in extending a helping hand,
and did not ask for any fee. His services were purely gratuitous; his acts [were]
on his own and by his own. It was more than pro bono; it was not even for
charity; it was simply an act of a friend for a friend. It was just lamentably
unfortunate that his efforts failed. Thus, the respondent concluded that there
was, strictly speaking, no attorney-client [relationship] existing between them.
Rather, right from the start, everything was sort of personal. The Honorable
Supreme Court did not agree with the contention of Atty. Grupo. The Highest
Court ratiocinated: To constitute professional employment it is not essential that
the client should have employed the attorney professionally on any previous
occasion . . . It is not necessary that any retainer should have been paid.
promised, or charged for; neither is it material that the attorney consulted did not
afterward undertake the case about which the consultation was had. If a person,
in respect to his business affairs or troubles of any kind, consults with his
attorney in his professional capacity with the view to obtaining professional
advice or assistance, and the attorney voluntarily permits or acquiesces in such
consultation, then the professional employment must be regarded as
established.

In resolving the second scenario, the following commentaries of various
great authors and lawyers of different countries have been gathered.

In reality, conscience refers literally to shared moral belief. The two most
obvious venues within this category are churches and families. The
relationships through which conscience thrives include those relationships that
provide access to the law because legal questions are often inescapably moral
questions as well. The attorney-client relationship is a shared commitment to a
particular moral claim. It is a fiduciary relationship in which the lawyer is
obliged to protect the clients interests.

The lawyers adherence to her own conscience does not threaten the rule
of law. Such adherence is essential to the coherence and integrity of their own
moral identity. One of the late civil rights lawyer William Kunstler observed,
Everyone has a right to a lawyer, thats true. But they dont have a right to
me. Kunstler quip embodies our commitment to conscience, not only in the
legal profession, but in any field in which consumers have a choice among
providers.

Moral dialogue between the attorney and client aims not simply at
the protection of interests external to the client, but the well-being of the client
himself. In my opinion, with respect to legal discourse, we dont talk about
good people, we talk about rights and we assume that what citizens want for
one another, or lawyers for their clients, is not goodness but isolation and
independence. A dialogical relationship allows lawyers to help their clients
decide what it is they really want, to help them make up their minds as to what
their ends should be.






























http://www-bcf.usc.edu/~idjlaw/PDF/18-2/18-2%20Asimow.pdf
http://www.lsuc.on.ca/media/sith_colloquium_asimow_michael.pdf
http://www.lsuc.on.ca/media/sith_colloquium_asimow_michael.pdf
http://books.google.com.ph/books?id=sq7-
DwM0cmMC&pg=PA291&lpg=PA291&dq=Lawyer+and+Client+Relationship+an
d+Conscience+of+a+Lawyer&source=bl&ots=F9Wn661AEu&sig=s9UfvaglQvoM
SKv88EAMcyu1trM&hl=fil&sa=X&ei=gvJiU6L_L9KTuASp14HYCA&ved=0CG4Q
6AEwCQ#v=onepage&q=Lawyer%20and%20Client%20Relationship%20and%20
Conscience%20of%20a%20Lawyer&f=false


When the Lawyer Knows the Client is Guilty: Client
Confessions in Legal Ethics, Popular Culture, and
Literature


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1296838
http://www.americanbar.org/content/dam/aba/directories/roli/philippines/p
hilippines_legal_ethics_manual.authcheckdam.pdf