Chapter 5: Introduction to Legal and Ethical Responsibilities
When a person embarks on a legal proceeding, such as an arbitration or court case, or is dealing with a regulatory authority, such as a tax, health or safety body that has certain powers over them, they need to understand the nature of the rules they must follow and the duties that are owed by all the parties that may be involved.
There are broadly two types of rules and duties that the parties need to comply with: legal obligations and ethical obligations.
Legal obligations arise outside the rules of procedural fairness, such as legislation and case law. In essence, to be legally compliant, a person must satisfy the obligations in the legislation or binding case law and comply with them. Put another way, legal obligations are the result of the legal authority exercising its power in and under the law .
Ethical obligations are obligations that parties owe to each other in the context in which they are operating. They arise as the result of the manner in which the parties are operating, such as according to the rules of natural justice, or in accordance with the relevant code of conduct. These obligations can be thought of, in a broad sense, as behavioural obligations. Because the level of ethical obligations exist outside the bounds of either legislation or case law, how they apply to a particular transaction or dispute may be less clear than more traditional legal obligations. Further, there are potentially hundreds of obligations in any given situation. As a result, it can be difficult to comprehend what all of these obligations might be in a particular case. A seasoned lawyer will be able to identify transactions and disputes in which these obligations may arise.
Understanding Legal Responsibilities of Chapter 5
Legal responsibilities in the context of Chapter 5 can be better understood by identifying key themes highlighted in this chapter that use the term "legal". The majority of these provisions appear to align with the existing legal obligations of businesses or professionals. The particular legal obligations highlighted in Chapter 5 include:
- Making informed decisions, including obtaining legal advice as appropriate, before entering representation
- Complying with an order of the tribunal as soon as reasonably practicable
- Seeking acknowledgement that an applicable privilege is relevant to the confidentiality of documents being disclosed
- Complying with obligations to report to a court or other authority.
The common obligations from the Schedule 2 of the current Code are concerned with professional conduct including:
- Confidentiality
- Conflict of interest
- Conduct of proceedings
- Confidentiality of confidential information
- Regulation to permit representation by another lawyer.
Ethical and Moral Considerations
In Chapter 5, the focus shifts to the ethical responsibilities and moral consideration that arise in the implementation and execution of an engagement. It explores the conflict actors and their pressures and motivations are and how ethical dilemmas affect the marketing and communication process. The focus is on how choices are made and the psychological dynamics that go along with the decision making process. The elements at play involve the decisions of individuals, corporate and organizational structures and the principles that guide structure responses and mitigation of risk. The conflict and pressure that ethical dilemmas bring to business decisions requires the navigation of the internal and external processes that guide human interaction. Ethical decision making influences not only the climate and values of an organization but may come to be in conflict with other laws, policies and procedures that govern an organization and its people. The discussion of ethical responsibilities and moral considerations also deals not only with the ethics of incidents themselves and the motivation and actions of the actors involved, but also the maps and frameworks that guide ethical decision-making and the moral principles that form the foundation of ethical behavior.
Case Examples of Legal and Ethical Responsibilities
It’s important to keep in mind that sometimes the people you trust to uphold the law are not always above reproach. In 2009, the Associated Press reported on a case involving a 17-year-old student from Brandywine High School in Wilmington, DE who claimed he didn’t know what sex was and had to have it explained to him by his teacher. North Star Elementary School art teacher Jason Hurst, was arrested and charged with a second-degree felony for sexual abuse of the male student. Hurst was sentenced to 18 months of probation after pleading guilty to one count of fourth-degree sexual offense with a victim aged 16 or more and one count of assault.
Hurst drew the attention of police for soliciting nude photos from students after delinquents were demanding them and telling other students they would post the photos on Myspace. Although the victim was the only one to go on record as having been abused, authorities discovered that there may have been at least one other victim.
In 2012, CNN Money reported on a case involving an attorney for Lonnie E. Fretcher, Jr., who had graciously agreed to represent a United Methodist pastor pro bono, only to find himself slapped with a lawsuit for $25 million. Rev. Kenneth G. Dean, a former pastor, was convicted of sexual indecency with a child, but claimed his attorney’s negligence limited his leverage in plea negotiations. Dean filed a legal malpractice lawsuit the third week of April 2012 against John Murchison and the law firm of Wright, Lindsey & Jennings , where Murchison was a partner. The lawsuit was filed in the U.S. District Court in Little Rock because Dean and his attorney were Arkansas residents.
Dean claims that Murchison pressured him to accept the plea deal instead of rejecting it and going to trial for sexual indecency with a minor (outside of the statute of limitations) and failing to investigate his criminal charges. Murchison’s attorney claimed that Dean was looking for a way to escape his conviction and thought he could blackmail Murchison into providing Dean with "retroactive representation." Murchison was trying to help Dean, but, in the end, Dean filed the lawsuit to try to gain some leverage for possible appellate proceedings.
In 2018, the ABA Journal reported that Jeffrey Segall, an attorney at the North Carolina Department of Transportation, attempted to save his seat with the North Carolina Board of Transportation by not disclosing that he was placed on probation for a variety of offenses, including sexual assault, unpaid traffic tickets, and drunk-driving charges. Segall was appointed by then-Governor Pat McCrory to the board of transportation and told the FBI that he did not disclose his probation because his criminal history had been expunged.
Unfortunately, Segall did not know that federal law states that records can be shared with government agencies, such as his employer and the state. Not only did Segall have to pay back more than $8,000 in expenses, bills, and legal fees, but he also resigned from the board.
These are just a couple of real-world examples of those who failed to keep up with their legal obligations. Law, like any profession, is not without its share of unethical practitioners, so knowing a good attorney to represent you in criminal matters is essential.
When Legal and Ethical Responsibilities Conflict
When assessing potential legal and regulatory risks, there can sometimes be a tension between what is legally required and what may be considered ethical. Understanding which obligations are legally mandated is essential, but not always sufficient. Analyzing the facts under legal requirements and ethical considerations will often suggest what course of action is most appropriate. Always consider whether legal requirements or ethical duties should be first in the hierarchy. Not only do laws impose civil and criminal penalties for violations, but having a reputation for following the rules engenders public trust. Sometimes the law will become silent on an issue, but ethical norms will have evolved in that particular area. Consider a situation where the law is clear or uncertain, but your personal values strongly conflict with the law, its enforcement, or legislative intent. It may make more sense to take action based on the ethical obligation. Nevertheless, in each instance it is important to seek guidance from someone outside the company who is not personally conflicted and not beholden to someone who might be conflicted.
Sometimes laws and ethical norms are asymmetrical. For example, laws may compel companies to report certain information to governmental authorities. However, even when not required by law, the norms of FAIR PLAY or civil society may have evolved so as to create an ethical duty to voluntarily report that same information. For example, if financial or employment markets were plagued by a certain type of corruption, would you feel any legal or ethical obligation to disclose the corrupt practices? Likewise, is there a legal obligation to disclose an adverse event that may not be harmful to anyone but is evidence of a broader malpractice or systemic problem? Or what about an inadvertent billing mistake? Does the company have a legal obligation to correct it, act upon, and/or disclose it? Is that based on legal requirements or immorality? Or is it both?
There are also instances where ethical duties conflict with legal obligations. Sometimes, a government may enact (what may become) immoral or unethical laws or regulations that a company may not morally support. For instance, consider the following questions: Consider a situation where the law is certain. However, in your opinion, and/or in the opinion of experts in your field, the law is adjudicated incorrectly and/or is contrary to better public policy (e.g., the removal of restrictions that enhance public safety, health or welfare). In that instance, does your company have an ethical obligation to correct the public policy error potentially caused by the decision? You may have a legal duty to promote established norms of fair play or prevent unfair competition. However, your duty to promote fair play and prevent unfair competition may go beyond what is legally required. For example, your company may be legally required to avoid agreements with competitors to allocate specific customers. But sometimes incentives or other business pressures compel employees or third parties to engage in unfair competition. Companies should have compliance trainings in place to manage and mitigate the risks of unfair competition and monitor their employees while demanding compliance with codes of conduct and company policies.
Trends in Legal and Ethical Responsibilities
Emerging trends in the context of legal and ethical responsibilities are influenced by a myriad of factors, including advancements in technology, globalization, shifts in societal and cultural values, and the evolving nature of the legal profession itself. These forces are shaping new paradigms for how legal and ethical responsibilities are conceptualized and operationalized.
One key trend is the impact of technology. As artificial intelligence, blockchain, and other cutting-edge technologies continue to develop, lawyers will face an array of new ethical considerations spanning data privacy, cybersecurity, and beyond. For instance, as legal research becomes increasingly automated, ethical questions surrounding the unauthorized practice of law (UPL) may arise, as well as the appropriate use of algorithms to predict case outcomes or analyze evidence.
The globalized nature of our world imposes distinct challenges. Legal practitioners are frequently confronted with multi-jurisdictional issues, particularly in areas such as intellectual property, international trade, or transnational transactions . Navigating these complex legal waters requires an understanding of not only the laws within one’s own jurisdiction, but also the ethical norms that govern practice across the world. This breadth of responsibility tasked to global law firms presents new opportunities to advance international discourse on global legal ethics.
Additionally, the public’s increased focus on corporate social responsibility (CSR) and how the legal profession can better align with social values poses both a challenge and an opportunity. As clients demand more transparency and accountability, legal professionals will have to correspondingly adapt.
As these trends continue to unfold, it is essential that judge and private practitioners educate themselves about these and other upcoming changes in responsibilities. Challenges we face in this decade promise to reside on a spectrum of varying complexity. Practitioners and academics alike must rise to the challenge with new ideas, informed commentary, and innovative strategies to meet and succeed the emerging expectations.