Many a time a lawyer is faced with the difficulty of whether to represent one or two clients with conflict of interests. In a typical legal profession, a lawyer would be prohibited to represent two clients of contradicting interests unless they consent to it. This prohibition has different aspects in different legal jurisdictions.
In Anglo-American system, an attorney is not allowed to represent the interest of another if while representing one client, he is forgoing the interests of another. Therefore he cannot be both for and against a client in a single case. An attorney is not allowed to accept employment of client for undoing all the works that have been already retained to be accomplished by him. He is not allowed to accept employment which will lead to mishandling of confidential information of another client. But these prohibitions are not absolute. The clients can consent for the representation after full disclosure of conflict of interests by the attorney. The client’s consent will not be adequate if the representation is against the public interests.
In Anglo-American countries, there had been judicial decisions, statutes etc. which have explicitly prohibit the attorneys from divulging confidential information communicated by the client to the attorney. Provisions in relation to the same are also found in the diverse legal systems like Germany, Japan etc. But there are countries where the State’s interests have been given more priority. The attorneys are having a duty to disclose information (confidential) to protect the interest of the nation.
In the traditional practice, the lawyers are prohibited from advertising his employment. The reason behind this is that this diminishes the values of the legal profession. Advertisement might lead to extravagant claims by the attorneys and unrealistic expectations on the part of the clients. Legal profession is more of a social service than personal gains. The basic intention was for the benefit of the society.
In the year 1977, the situation changed when the U.S. Supreme Court gave judgments for the attorney to advertise their fees. In the same manner, in UK also, the attorneys were allowed in limits to advertise their fees. The fees to be charged by the attorneys have to be low and reasonable as legal profession is ultimately a social service. There were statutes made by the legislators in different countries to keep a check on the fees charged by the attorneys. But in U.S. these statutes were adjudged as violation of anti-trust laws. In United States, the objective of the legal profession is taken to be serving the poor without any compensation. This was the foundation for the development of the legal aid societies in U.S. and later on it reached the whole world. The practice of contingent fees is considered as legally ethical one. If the attorney wins the case, he will get the fees from the client. If the result of the litigation is not known to the attorney or the client, the attorney will have a financial stake in the outcome of the case. The court fees have been kept as low as possible (20-40% of the recovery amount) so that the poor people can access the facilities of the Court.
Now the economic globalization has led to conflict in the legal ethics in different legal regimes. The European Union has taken step to harmonize the practice of its member states and made a uniform code. But till now, the nations have been unable to address the concerns in relation to the globalization.
For reading other articles in this series, go to the legal ethics series here.