Professional Ethics

A. Identity and Roles

There is always conflict between role and identity. The role concept is sociological whereas the
identity concept is psychological.

The conflict is existential, and best approached in the context of the lawyer acting in the context
of lawyers-client relationship. The lawyer receiving a client sees his client and he sees himself; he
sees his client looking at him and sees himself looking at the client. He has expectations of himself
and he knows that the client has expectations, “What does a lawyer do now? This is the question
of role.

The role issue is complex. The role perception creates anxiety in practitioners. Every good lawyer
thinks of him becoming honest, thoughtful, knowledgeable, dependable, dominant, attentive, and
careful. From this perspective a lawyer thinks of him as an individual similar to others,
inconsiderate of his own personal character. But it reality this turns to be not true. The concept of
role arises from viewing the lawyer from the outside. As a lawyer he has some responsibility to
client. He has number of obligations to fulfill, which should not mingle with his identity. As such
a lawyer has to forget his faith, ideology, custom etc, and work for the interest of the client, who
is totally dependent on him.

Identity is an innate character of each individual, and each individual has own aspiration. Each
individual cannot divide himself from “his whole person”. Ultimately, he has some entrenched
identity. He has his religion, culture, family. The role and identity often come into conflict, and
sometimes the choice to maintain the role and identity becomes difficult. Identity is a matter of
the lawyer out from the inside. As such he is national of a nation, member of a community, follower
of some faith-a similar person like other human being. In this capacity, he has distinct
responsibility as a national, member, father etc. In this capacity, a lawyer is person like others,
who have some distinct aspiration, needs and capacity.

Role and Identity exist in their own place in great importance and significance. A successful lawyer
should not allow one to overly influence the other. A successful lawyer, though combines role and
identity in building his career, develops his professionalism by limiting his relation with his client
and maintaining his social adjustment as an individual person like others.

A lawyer has authority to especially treat and make all attempts to represent the interest of his
client by virtue of the role-differentiated behavior. His role grants him this authority, if his identity
does not. Generally, lawyers do not like to represent an unpopular client, because they don’t’ like
bad people. But they do it because their role wants them to do it.
 B. Lawyers as Professionals: Some Moral Issues

Relation between lawyers and clients

Everything concerning the profession of lawyers begins to evolve from the relation between
lawyers and client. A lawyer is not here because he wants to be but because legal services are
required. This need is represented by clients. A legal profession is ‘a service delivery’ profession.
Obviously, there are rules for governing the relation between lawyers and clients. These rules are
called “ethical codes”.

The ethics of the performance of the legal profession mean that every lawyers’ fundamental
obligation is not to reject a client because of his momentary position. Everyone is entitled to obtain
legal service whenever their situation in life requires. Lawyers and clients both are human beings,
so that they are not perfect. So there is a possibility of violations of rules. So that we do not
singularly rely on “moral principles”, we are also governed by rules of law.

Law Regulates the Behavior

The relation between the lawyer and client, is largely regulated by rules of law. These rules are
binding regulatory rules, violation of what is enforced by a specific mechanism.

When a client decides to see a lawyer, that is not a minor decision. Clients rarely approach lawyers
lightly. Going to see a lawyer is, with few exceptions, perceived as a momentous step.

These people do not consult lawyers for silly matters. Threshold of consulting a lawyer is always
substantial. Clients expect their lawyers give true and workable solutions of their problems.
Obviously, they are hardly concerned whether lawyers have problems or not, etc. They look for
their problems but not the problems of lawyers.

Legal Profession is a Part of Life

Everyone is confronted with legal problems regularly; but only a simple minority of such problems
reaches to lawyers. And only a small minority of problems reaches to courts. Majority of legal
problems are relatively smaller. Those issues that reach to lawyers have important bearings on
lives of peoples. The seriousness and cooperative attitude is thus the first and foremost character
of peoples involved in legal professions.

“YOU ARE NOT A MASTER; RATHER YOU ARE A SRVICE PROVIDER”

C. Ideology of Advocacy, Procedural Justice and Professional Ethics

Introduction
Choice between Professional and Non-Professional Advocacy

The tension between professional and non-professional advocacy is important issue. Non-
professional advocacy is difficult to describe with precision, but it is not all mysterious.
Nevertheless, the non-professional advocacy is largely determined by style of thought, and conduct
with which everyone has at least familiarity.

Some humanly unacceptable behaviors are closely associated with professional code of conducts.
Deception is commonly unacceptable behavior, thus professional advocacy rejects deception of all
kinds. Cheating is unacceptable behavior, and no legal profession can accept cheating as
acceptable code of conduct. Competent delivery of service is required behavior, which legal
professional emphasizes.

Ignorance of person paying for service is not good, and professional advocacy never accepts it.
Confidence is rule of conduct, which professional advocacy cherishes to nurture. Professional
advocacy works on legal norms and justice, therefore the professional advocacy never betrays the
course of law and justice. Professional advocacy does not believe in emotion, sentiment and
allurement. Thus, it is built on need of providing service professionally only.

The Foundation Principle of Non-Professional Advocacy

The foundation principle of the non-professional advocacy is that the problems of advocacy be
treated as a matter of personal ethics. As the notion is generally understood, personal ethics
presupposes two ideas diametrically opposed to the foundation principle of the Ideology of
Advocacy.

First, the personal ethics apply to people merely by virtue of the fact that they are human
individuals. That is the reason, the unacceptable behaviors described before are also professionally
unacceptable. The obligations involved may depend on particular circumstances or personalities,
but they do not follow from social role or station. Personal ethics are at once more particular and
more general than professional ethics. On the one hand, they require that every moral decision be
made by the individual himself; no institution can define his/her obligations in advance. On the
other hand, the individual may be called upon to answer for his/her decisions by any individual
who is affected by them. No specialized group has a monopoly which disqualifies outsiders from
criticizing the behavior of its members.

Second, personal ethics require that individuals take responsibility for the consequences of their
decisions. They cannot differ to institutions with autonomous ethical momentum.

Core Value of Personal Ethics

Personal ethics obtain legitimacy by virtue two core values: (i) Personal ethics involve a concern
for one’s own integrity. (ii) It involves for respect for the concrete individuality (personality) of
others.
The concern for both one’s own integrity and integrity of others makes the personal ethics
somewhat problematical. It raises difficult questions in situations where one’s own ends and the
ends of others conflict. One of the ways in which personal ethics deal with such situations is by
referring to social norms and institutions such as those associated with law.

Non- professional advocate presents himself to prospective clients as someone with special talent
and knowledge, but also with personal ends to which he/she is strongly committed. So that the
client should expect someone generally disposed to help him advance his ends, but also to oppose
him when the ends of advocate and client conflict.

Confidentiality and Non-Professional Advocacy

Confidence is built on trust. Violation of confidentiality thus results in violation of trust. However,
confidentiality or trust is not a formal, definitional property of advocate-client relation. It is a
quality which parties must create or fail to create in each instance. When confidentiality may be
important to the client, advocate and client should arrive at some understanding at the outset
concerning this issue. The scope of confidentiality need not be defined for the entire relation at the
outset. It can be defined in stages as lawyer and client gain greater understanding of each other.

Client’s claim to assurance of confidentiality is a strong one, once assurances have been made his
claim that they be honored is much stronger still.

However, the clients’ claims should be seen in the context of ends the client wants to gain. Clients’
claims to illegal ends cannot be honored, so that sometimes the relation between the lawyer and
client result in betrayal.

Power Relation between Lawyers and Clients

Marginalized weaker clients may not be able to sustain their claims, and in such situation the
lawyers’ insistence will prevail in substantive ends of the clients. Especially in the field of Public
Interest, this situation is prominent. In such cases, the clients are less conscious of their interests.
Lawyers in such situation may act more a part of the interest group itself than the professional.
However, in general situation the client should always possess autonomy to decide what ends he
wants to achieve.

No profession is exempted from misconduct. Legal profession is no exception. Legal profession

must work for the best interest of the client, and if the misconduct results in loss of the client, the
advocate is bound to compensate the same.

A lawyer insisted her client to seek divorce, instead of seeking partition of the property from
husband. The divorce resulted in social stigma to the wife, and the economic gain obtained from
the husband was not enough to meet her daily needs. The client actually wanted to seek to achieve
the end of partition of the property. The layer insisted to seek the divorce with a vested interest
that the husband could be pressurized for negotiated deal in cash, which was a short and easy way
to gain benefit. Describe this incident based on the “ideology of advocacy”.

Ideology of Advocacy: Procedural Justice and Professional Ethics

Principle of Neutrality of Client’s Vested Interests

This principle prescribes that the lawyer remains detached from his client’s vested interests. A
lawyer is expected to represent people who seek his help regardless of his opinion of justice of
their ends. When he takes a case, he is not considered responsible for his client’s purpose, beyond
the legal parameter.

Principle of Partnership

The principle of partnership prescribes that the lawyer work aggressively to advance his client’s
legal or genuine ends. Lawyer has to employ all means on behalf of his client which may be in
normal condition (non-professional relation) not proper in non-professional context.

As an ordinary human may hate a rapist, but as a professional (from the role context as opposed to
identity context) has to respect him as an innocent person needing justice. This principle is based
on role-differentiated principle.

Principle of Procedural Justice

Principle of procedural justice is that there is an inherent value or legitimacy to the judicial
proceeding which it possible for a lawyer to justify specific actions without reference to the
consequences they are likely to promote.

There are two conflicting interests within the system of justice. The safety of the society from
crimes in the one hand, and protection of the offenders’ rights to fair and impartial trial. The
protection of procedural rights of offenders render provides the legitimacy for the system of justice
and also the safety. No legal order is possible without justice, and no justice is possible without
legal order. Lawyers conducts of representing an offender obtain legitimacy by virtue of the
procedural justice.

Principle of Professionalism

One of the fundamental legal doctrine is that there is a reciprocity of the rights and duties, so that
when lawyer works to protect the rights of one, he has to take care of his duty to respect the right
of his client's opponent. Moreover, he has to work as an officer of the court, so that the duty of
fostering justice is hi/her prime obligation. A lawyer has to take account of the law; he should not
violate the law but strengthen its role. He is thus not obliged to address the illegal ends of the
clients.
Positivist Lawyering

Positivist lawyers do not talk of “law ought to be”. They are simply concerned with the “law as it
is”. They apply and interpret the existing laws. Representation of clients from the positivist
lawyer’s perspective is therefore to assist client by using his/her precise, regular, mechanical
operation of the legal system.

Positivist role and Possibility of Confrontation with Client's Ends

Lawyers assume specific course of actions as factual hypotheses and reasons from them in
accordance with rules of the legal system in order to determine the consequences. However, the
course of action to be applied is of little use to clients. The client is not interested in the
consequences of any course of action to be followed. He is interested about the ends, and he might
be interested only to action which might advance his ends.

The positivist version of the Ideology of Advocacy focuses on the person for whom the law is a
“mystery”. Such a person, even if conscious of an articulate about his ends would not know which
aspects of them the lawyer would need to understand in order to gauge the impact of the legal
system on his/her life. The person should therefore rely on his lawyer. On the other hand, lawyer
has no access to client’s end independently, and when he tries to understand it through
conversation, there is a chance of intrusion of the lawyer’s end itself affecting the right of client to
decide.

Practices

In practice, lawyers often fail to take into account of the following, which lead to violation of
principles of advocacy: Lawyers do not take care of the principle of neutrality, as they often decide
on the ends of client as they do not know the law. Procedures are complex, and only the lawyers
would be able to say what is right and wrong. In this course, lawyers may intrude to the ends of
client. In many occasions, lawyers even do not follow the right course of action.They also fail to
take appropriate motion.

Practical Situation in Nepal

Lawyers in Nepal hardly represent clients in police custody. Quick procedure against detention are
not taken up. In many cases Senior lawyers do not represent people in the trial court and do not
brief the situation of the case to clients. Clients are not educated about their constitutional rights.
Lawyers’ passiveness to fair procedures neglects the chance of fair trial to client which is an issue
of professional ethics.
 (D) Responsibility, Authority and Choice

What are the authorities, responsibilities and choices of a lawyer?

A lawyer must interpret and decide what can do and what not, as everything is not written for him.
A lawyer also has to take responsibility of what he interpret and decide. His profession is not
unaccountable. Legal profession draws to it persons who want the law to be clear, predictable and
just and show the clear road to proper ethical choices. The disappointing fact is that the law is in
many respects unclear and unpredictable and sometimes the engine of injustice.

Further, law is helping profession in which practitioners are faced with subtle and difficult conflict
of interests between themselves, their clients and their society, frequently involving distressing
human circumstances. Sometimes, a lawyer has to face challenge in choice between individual and
groups, emotion/sentiment and role, law and morality etc. The choice is difficult, and necessary.

Theories of Professional Responsibilities

Aspirations of that sort imply a strong, trusted personal reputation and a respected profession, and
they imply that the reason to guard this position is to assure that the community will be able to
grow. But the fulfillment of these aspirations is left to the individual abilities of lawyers to make
the choices of behavior which will make the strength and growth possible.

A person’s morality—his efforts to make himself and the his profession honorable and open to
change—defines his/her existence. A lawyer will be destroyed by his moral blindness. A lawyer
has duty to safeguard the life and liberty and property of people, dignity of his own and his
profession. The established law and moral values legitimize his works. So that the law and
established values are the authorities of his work. In conflict, he has to make choice in favor of
law and morality.