Reflection paper 3
I believe that being a good lawyer requires one to build and maintain personal values that will enable him or her to successfully conquer adversary systems. Trust is one of the most important values in the legal system that lawyers have to develop. This is because trust forms the trademark of a client-lawyer relationship. Therefore, a lawyer has an obligation of ensuring that cultivate trust between them and their clients as this will provide a component of representation. Having this trust based client-lawyer relationship, will also place an element of confidence and reliability. A lawyer must therefore guarantee the client that they are competent in representing them and that it is in their best interest to ensure that justice is served. In doing this, a lawyer maintains his public trust and hence can be trusted to successfully offer his skills in this profession. This helps in branding the skills of the lawyer hence many clients can easily rely on the lawyer as they are confident that they will be proficiently represented.
Nevertheless, I disagree with the idea that asserts that providing the best representation is equivalent to providing a zealous representation. According to public expectation, it is the core role of the lawyer to see to it that justice is served to the client as well as the general public. Zealous representation is at times important as there are times when zealous representation is needed while seeking justice. For instance, as a lawyer there are times when one requires a bargaining power so as to equally bargain for a position of the parties in disagreement hence offering a chance for a more just outcome. However, there are still other times when justice can be served without necessarily having to be zealous. For instance, in Proffessor Giller’s second hypothesis, he asserts that even without practicing zealous representation, your client already has a better bargaining opportunity as compared to the injured woman (Acker & Brody 2013). Justice in this case therefore, does not mean having the best outcome for your client by means of pushing the other party. However, justice in this case means that the lawyer is concerned about the well being of his client hence protects him or her from unnecessary and unreasonable liability. Moreover, in some cases, carrying out zealous representation may discourage public interest in seeking justice. This public interest frustration will only risk the lawyer’s reputation as well as that of his client. This may intern affect the future of legal business. It is therefore the role of the lawyer to balance his or her duties so as to be able to serve their client’s interest with that of his sense of duty as a legal officer to the public.
According to Professor Giller’s first hypothetical case, it is all right for lawyers to push for any advantage that would help in delaying the proceedings hence allowing the client to have ample time to search for finances that would pay off his or her debts (Acker & Brody 2013). Failure to do so leaves the client at a bad bargaining position as they are unable to effectively bargain for a just outcome. It is thus important to note that giving more time to a case will act in favor of the client as it will offer more opportunities to look at the case more carefully hence allowing justice to prevail for the innocent victims.
Reflection paper 4
I concur with the North Carolina State Bar’s 2005 Formal Ethics Opinion No. 3 which argue that a lawyer ought not to use the threat of reporting the opposing party to the immigration officers so as to have a competitive edge in settling a negotiation. It is a fact that using the threat of reporting the Canches, in regards to their immigration status will act as an advantage to my client’s considerable leverage within the negotiation. However, I personally stand against this position and s does some of the ethics opinions. The rationale behind this stand is that immigration status is not important to the value of the civil claim and thus they may be detrimental to the justice legal system. However, I may as well use the opportunity to remind the opposing party that it is in their best interest to keep off the dispute from the trial system as it may pilot the discovery of their immigration status by other interested parties.
According to the analogy drawn by the state bar from the American Bar Association Formal Opinion No. 92-363, it asserts that a lawyer is only allowed to use the threat of criminal prosecution in a civil matter in order to gain merit for his or her client, only if there is a link between the criminal case and the civil claim (American Bar Association 2002). The Nc State Bar opinion also asserts that use of threat promotes no lawful interest of the judiciary system. It actually enables the happening of an exploitation of inappropriate matters and the abuse of the adjudicative system (American Bar Association 2002). This standpoint may place a lawyer in violation of the ethical rules since the MR 8.3 (d) rule out the act of lawyers engaging in an act that is detrimental to the administration of justice. Section 4.3.2 of the 2002 ABA Ethical Guidelines for settlement Negotiation also disallows the utilization of exorbitant threat during the negation process. Though the ABA Comm’n on ethics & Prof’1 Responsibility in the Formal Op. 92-363 fails to mention about the threat of reporting to immigration officers, it, however, addresses the use of threat of criminal prosecution. This ethics opinion claims that the requirement and presence of the relationship between the criminal and the civil matter are to ensure that negotiations are fully based on the true value of the civil claim (American Bar Association 2002). I will, therefore, refrain from using exploitation through threat as it has nothing to do with assessing the claim.
Based on the opinions above, I will without a doubt not use the threat of reporting the opposing party to the immigration officers so as to gain an advantage in the negotiation as it might place me in a state of ethical violation. I will, however, ensure that the opposing party understands the seriousness of the matter if they decide to proceed with the trial, as this will only disadvantage them as they will risk being identified by the third party. I agree with the ABA regulations as they state that it is appropriate to remind the opposing party of the regular costs of proceeding to trial and to suggest that it may be to their merit if they avoid these costs through making an agreement of settling the case. Therefore, I will not threaten the opposing party using the disapproved ways by the ethical opinions as this will be irrelevant since there is nothing that I will do that will negatively affect them in case they decided not to settle.
Reflection paper 5
This case revolves around the determination of who actually makes decisions in a lawyer-client relationship and determination of the lawyer’s role of candor to a tribunal. This case involves an innocent defendant who is determined to protect his sister at all costs and thus he is willing to be incriminated for a crime that he did not do. The real owner of the drugs is the defendant’s sister; however, his brother is the one who has taken the responsibility of being accused of possessions of drugs and is ready to face consequences for his decision. According to the Model Rules of Professional Conduct, section 1.2 asserts that a lawyer ought to stand by the client’s resolution in regards to the objectives of representation (American Bar Association 2002). Moreover, it asserts that in a unlawful case, the lawyer ought to stand to the client’s choice, after having a discussion with the lawyer in regards to a claim to be entered. Lawyers are autonomous when it comes to the way to be employed in undertaking a representation. However, the rule also claims that the lawyer ought to consult the matter with the client in advance.
However, it is important to note that using the MR 1.2 is not enough in dealing with this kind of case. This is because the case is a complex one and thus requires a thorough consideration. According to MR 3.3, it asserts that a lawyer shall not make a false statement or even provide false evidence to the tribunal on purpose. This is because a lawyer is a legal officer of the court and hence is entitled to maintaining the integrity of the justice system. Therefore, in my representation of this case, pleading guilty is not an option. In doing this I will violate the MR 1.2 since there is no way that I can argue the case out without using false facts in regards to the rightful owner of the drugs. The fact that through questioning I already know that my client is innocent only places me in a position where I have to apply the MR 3.3. I will thus not plead guilty as I am already aware of the client’s innocence. However, in compliance with the MR 1.4 (a) (5), I will have to explain this restriction to my client. Having no way to represent my client in a manner that will not put me at risk, I will consult him on the way forward as he has a right to discharge my professional role if he fails to agree with the way I will carry out the representation. However, in case my client decides to continue pleading guilty, I will have to withdraw from representing him. This is in accordance with the MR 1.6 (a) (1) (Walkowiak 2008). It is true that I will lose my client but one thing is for sure, that I will have maintained my integrity as a lawyer and thus will avoid the risk of being punished or even being disbarred. I value my profession and I thus would not want to expose myself to the risk of being held liable for malpractice due to ineffective representation and for failing to offer a competent representation. I strongly believe that it is all about being professional as it is all that counts in the law profession.
References
Acker, J. R., & Brody, D. C. (2013). Criminal procedure: A contemporary perspective. Burlington, MA: Jones & Bartlett Learning.
American Bar Association., & Center for Professional Responsibility (American Bar Association). (2002). Model rules of professional conduct. Chicago, Ill: American Bar Association, Center for Professional Responsibility.
Walkowiak, V. S. (2008). The attorney-client privilege in civil litigation: Protecting and defending confidentiality. Chicago, IL: Tort Trial & Insurance Practice Section, American Bar Association.
