Essay Example on Misconduct of Lawyers in a Civil Litigation

2021-07-10 06:39:20
7 pages
1912 words
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Harvey Mudd College
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Essay
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Like many professionals, lawyers are bound by an austere moral code of conduct that checks their behavior in a legal setting. They are required by ethics to uphold a high level of integrity for the sake of their clients and the court of justice (LPCC, 2016). There is no way that lawyers can handle their clients with respect if they do not observe the moral obligation in their conduct. The need for upright moral behaviors in law stems from the very organization of the justice system. When a person is litigated for a civil suit, they are required to have a solicitor to represent them in court. The solicitor thus appointed must gather all the relevant evidence and testimonies to present before the court. A defense counsel must also secure this information which sometimes contains personal clients information. For the purpose of professionalism, the lawyer must try as much as possible to make a case for the client and commit themselves to winning the suit. Reckless handling of evidence can breach the lawyers code of conduct and counts as misconduct. Additionally, overlooking several provisions by the lawyer with regards to evidence is also misconduct.

The Law Society of Western Australia in 2015 revised its ethical guidelines for lawyers. These guidelines are encompassed in 16 general categories, although they are further classified into more discreet clauses that are relevant in both civil and criminal cases. Most of these guidelines provide the ideal way of practitioner-client relationship. However, some clauses advice the practitioners on how to deal with evidence and the method of inter-counsel consultations. The first category of the guidelines is the Advocacy and Litigation. Under these guidelines, legal practitioners are required by law to show efficiency in their conduct. This provision means that a lawyer must be able to show their argumentative acumen that includes reference to relevant law clauses and a good understanding of the constitution. Under the first guideline, lawyers ought to be honest by exercising proper disclosure of necessary information to the court and the client (Western Australia Law Society, 2015). The lawyer must also refrain from making criminal allegations against an opponents client without having substantial evidence sourced from adequate background research. The rules also prohibit a lawyer from contacting the opponent especially in conditions that might compromise his efficiency of representation. The other 15 guidelines in the document deal with myriad issues that are applicable in the administration of jurisprudence, including the handling of evidence contained in the public domain. There are specific clauses that guide legal practitioners on how to protect their clients from manipulation. Although these rules are specific to the West Australia legal professionals, they cover a more global population, since similar versions of rules are applied in the whole world. The core legal ethic concepts, according to Andrews (2004) are litigation fairness, competence, loyalty, confidentiality, reasonable fees, and public service.

The case under consideration involves a young commercial lawyer, Mr. Clenman, and his French client, Mrs. Rigaud. Mrs. Rigaud imports truffles to Australia and sells them to different customers. On one occasion, Mrs. Rigaud allegedly supplied truffles to Mr. Flintwinch in quantities below those specified in their contract. Sensing foul-play, the customer sues Mrs. Rigaud in court. This litigation prompts Mrs. Rigaud to hire a lawyer from Dorrits, a mid-sized law firm that has employed Mr. Clenman. On one day, Clenman visits Mrs. Rigaud to collect evidence that he will use in the court on the trial day. Mrs. Rigaud on this day cites that there might have been a misunderstanding between her and his customer on the number of truffles to supply. Clenman hurriedly drafts this information in his computer, but fails to save it in the hard disk. The document saves itself automatically in Clenmans USB disk. The day that Clenman visits Mrs. Rigaud to collect evidence coincides with the annual Young Ballers Party. Clenman wants to make an appearance in this party, so he hurriedly slips the USB drive into his trousers pocket and dashes out to attend the party. Unfortunately, Clenman loses the disk drive on the dance floor without noticing. Another young lawyer working for the plaintiff in Rigaud v Flintwinchs case finds the USB drive and retrieves the statement that Mrs. Rigaud made. However, Mrs. Rigaud has already changed the statement after Clenman informs her that the original information got lost. On the trial day, Mrs. Rigaud gets into the cross examination desk without a French interpreter. Clenman assumes that the judges will be lenient on her due to her communication problems. The Flintwinchs counsel unleashes the evidence that is by now contrary to the statement given by Mrs. Rigaud in court. This new turn of events corners Mrs. Rigaud and she is forced to compensate Mr. Flintwinch $65000 in damages.

This case is a classic example of lawyers who fail to deliver on the professionalism. This negligence and lack of efficiency leads to the clients dissatisfaction and eventual loss of a case in court. The most devastating thing about this case is that Mrs. Rigaud succumbs to emotional breakdown that succeeds this scenario. Her daughter Amy, learning of the effects that the case had on her mothers health, decided to seek legal redress with the Legal Practitioners Complaints Committee (LPCC). The regulatory body must thus get enough evidence to incriminate the lawyers handling this case to allow them take necessary punitive measures. Four lawyers from both sides have committed gross professional misconduct that led to the eventual death of a businesswoman. However, Mrs. Rigaud lawyer and barrister committed much of the crime, although the plaintiffs solicitor and barrister are also guilty of professional misconduct under the Legal Profession Act 2008 (WA) and the Legal Profession Conduct Rules 2010 (WA). Additionally, the lawyers fail to meet the general moral obligations with regard to common ethical guidelines.

Clenman carries the bulk of the blame for what befell Mrs. Rigaud. First, he hurriedly planned to visit his client, a factor that contributed to the unorganized planning of evidence. Clenman visited the client on the day that the Ballers were planning for a party, meaning that his mind was not focused entirely on the case ahead of him. He, therefore, carried few materials necessary for the recording of the case. In addition to the computer, Clenman was obliged by the code of conduct to jot down Mrs. Rigauds statement on a piece of paper. Also, he was supposed to back up this information in the computers hard drive and also a well encrypted portable device. Contrary to these requirements, Clenman merely drafted an incomprehensive statement in the computer and did not even have the time to save it in several locations in the computer as well as in the USB Disk. Due to the coincidence of the Ballers party and the date of evidence collected, Clenman was not focused on a deep enquiry to add more evidentiary material that would help Mrs. Rigaud to win the case. After being given the statement that Mrs. Rigaud had a misunderstanding with her customer regarding the number of truffles to be supplied, Clenman did not perform further enquiries to determine the details of this misunderstanding. According to the regulations, Clenman ought to have exercised prudence and efficiency in handling this point in the litigation process. If Clenman was indeed committed to helping Mrs. Rigaud win this case, he should have insisted on further exploration of facts pertaining to these misunderstandings. In fact, a clear explanation of the events leading to the signing of the contract and the eventual supply of truffles was enough evidence to show that Mr. Flintwinch was aware of the number of truffles that he was to receive from his supplier even before the delivery was made. In a nutshell, Clenman failed on his obligation of efficiency and commitment under the Legal Profession Conduct Rules 2010 (WA).

Another gross misconduct that Clenman is liable for is the poor handling of evidence. The law of digital evidence states that every legal practitioner dealing with evidence contained in a digital format must put in place all measures to prevent unauthorized access to this information (Legal Profession Act, 2008). Some of the measures to prevent this access are strong encryption and restricted sharing. Clenmans USB drive had a simple password that could be guessed by any chance. Although the scenario presented here is theoretical, it is clear that the USB disk drive was not access proof. Flora did not put any effort to decrypt the password. In fact, she only entered five numbers in succession and typed the word password. This case again proves that Clenman was not an efficient legal practitioner. He failed to protect his clients personal testimony from access by his opponents through poor handling. Lack of a strong password is not the only factor that predisposed Mrs. Rigauds statement to access by Flintwinchs defense counsels. The fact that Clenman hurriedly slipped the disk into his trouser pockets is a proof that he did not understand the weight that this case had. If only Clenman knew how much litigation meant for his client, he could have taken time to take the USB home before he went into the Ballers party. Additionally, he could have regularly checked his pockets to ensure that the USB was safe. Even after noticing that the drive was missing, Clenman did not bother to ask the organizers to announce that he had lost an item in the party. Furthermore, Clenman did not get back to the Partys venue the following morning to search for the lost drive.

After losing the USB drive containing her clients statement in the Ballers party, Clenman visited Mrs. Rigaud to ask for a fresh statement. During the second round of evidence collection, Mr. Clenman allowed the client to provide a completely different statement. There are two things about the incompetency of Clenman as seen in this scenario. First, it is possible that he could not remember anything about the previous statement despite taking and recording it in his computer. Secondly, Clenman was not aware of the implications of the client showing double standards in court. If Clenman understood the first statement as given by the client, he could have cautioned her against giving a contradictory statement due to the dangers involved in case the previous statement fell into the wrong hands. Clenman knew for sure that there was a likelihood that the USB got lost in the party. Due to the presence of other young lawyers in the party, there was a possibility that the drive could have been picked by one of the Flintwichs lawyers. If that was so, the opponents lawyer could have inadvertently harvested the statement and used it against Mrs. Rigaud during the trial. However, due to Clenmans express incompetency, he continued to record a different statement, and proceeded to represent it in court as evidence.

Clenman misused his clients financial position to exploit her. He billed her for two times which he visited to collect evidence. Since it was his fault that he lost the initial statement, he should have not charged Mrs. Rigaud for a second time. The fact that Mrs. Rigaud was a foreigner in Australia and apparently a wealthy businesswoman did not warrant this exploitation. Every legal practitioner is bound by law to have a good understanding of the client's financial capacity and ability to pay any amount of money (Legal Profession Conduct Rules 2015 (WA), 11.19). Apparently, Clenman did not undertake a thorough study of his client to understand how much his business and f...

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