The Responsibility of Lawyers - 中欧社会论坛 - China Europa Forum

The Responsibility of Lawyers

(draft paper)

Fr. R. van der Mensbrugghe

2010

The English language has three words to characterize the responsibility of lawyers : liability, accountability, and responsibility proper. Each word expresses an idea, or level, of responsibility that implies different obligations, ranging from a narrow understanding involving the lawyer-client relationship exclusively, to a broader understanding that covers lawyers and society at large. These points could lead to fruitful conversations and developments in European-Chinese exchanges.

On a first level, one that has a narrow dimension attached to it, the idea is that lawyers may be held professionally liable for giving incomplete, inadequate, or wrong advice and, generally speaking, for any work connected to the conduct of a case in court. Admittedly, lawyers cannot be expected to be experts in every area of law but serious negligence can produce grave, if not tragic consequences. Under the circumstances, if asked something outside their area of expertise, lawyers should acknowledge that limitation and either find out the answer or refer the client to someone else. Reactions in the event of serious professional malpractice vary depending on the legal culture. In the United States, it is common for the courts before which lawyers practice to deal with professional liability issues since the American Bar Association (ABA) has no formal power to regulate the legal profession. Indeed, there exists a vast range of insurance products and services specifically designed to provide broad professional liability protection to attorneys. In the United Kingdom, many real-life clients do not pursue their grievances further and do not take advantage of their full legal rights. Sometimes, the mere idea of taking action against one’s lawyer appears unthinkable. Until recently in the U.K., barristers and solicitors enjoyed immunity from liability for negligent work in court. This immunity had been recognized by the courts in the case of Rondel v. Worsley [1969] 1 A.C. 191. One significant justification for the immunity was that a negligence action would effectively result in a retrial of the case that gave rise to the allegation of negligence, which would in turn damage the certainty and finality of the final verdict (known as “the collateral attack argument”). In other words, clients would seek to use litigation against their lawyer to reopen litigation that had already been lost. Another reason that was advanced for the immunity of lawyers was justified by public policy, meaning that a lawyer “owes duty to the court as well as to his client and should not be inhibited through fear of an action by his client, from performing it” (per Lord Wilberforce, in Saif Ali v. Sydney Mitchell and Co [1980] A.C. 198, at 212). The immunity of lawyers in Great Britain was abolished by the Appellate Committee of the House of Lords in Arthur JS Hall & Co. v. Simons [2000] 3 All E.R. 673. All the arguments previously advanced in favor of immunity – whether in respect of a duty of care in the giving of information or advice or whether in respect of a lawyer’s conduct at trial – were dismissed. There was no longer any reason to treat lawyers any differently from other professionals – their negligence could give rise to liability in tort. As it is, lawyers in Britain (both barristers and solicitors) are today subject to compulsory indemnity insurance requirements.

On a second, higher, level, we may envisage the responsibility of lawyers in terms of accountability. Here, the problem is no longer limited to the mere lawyer-client relationship, with the possibility of ensuing adjudication as to the determination of the liability of the negligent lawyer vis-à-vis his client. The question here is one of treating the situation in the manner by which the lawyer has to account for his conduct/services to the body responsible for regulating the profession. Despite possible overlaps with the previous situation – involving similar serious allegations of misconduct or inadequate professional services – the issue here is often dealt with on the disciplinary plane as it concerns serious breaches of professional standards. A swathe of illustrations exists as to this point. As mentioned above, the complaint may involve inadequate or wrong advice. It may also involve misuse of clients’ money, breach of trust, breach of contract, or the absence of clear information about costs. Finally, it may concern predatory behavior inasmuch as companies channel work to lawyers via television advertising. Regarding solicitors, the power to deal with such complaints is vested in the Legal Complaints Service of the Law Society. This body may reduce a client’s bill, correct mistakes and/or pay compensation up to £15,000. On a more serious level, disciplinary proceedings may take place. In such circumstances, hearings are conducted by the Solicitors Disciplinary Tribunal, normally in public, and the range of penalties taken by the Tribunal range from a mere reprimand to striking the solicitor off the role. Extreme misconduct by a solicitor may independently amount to a criminal offence. Regarding barristers, a complaints system was only introduced in 1996. As it is today, complaints about a barrister’s professional work are first considered by a Complaints Commissioner who, if he determines that a complaint may be justified, refers the matter to the Conduct Committee of the Bar Standards Board for consideration. As with solicitors, we have a wide range of penalties, leading in the most serious cases to a barrister being disbarred.

To conclude, on a third level, the responsibility of lawyers may be envisaged through the word responsibility proper. Here the level of responsibility goes beyond that which exists towards the client or the legal profession. The idea is one of a more ethical kind, involving the community at large. It involves the general impact of lawyers on society and society’s own attempts to ensure access to lawyers. This idea may be taken under a variety of angles. If we look at the problem through the exercise of the legal profession itself, it appears that in certain countries, lawyers can force their attention upon us and have a corrosive impact on both society and the liberty of its members. One controversial example should help to understand this problem. The population of Japan is around 125m and there are about 5,000 lawyers. In the United States, there are around 750,000 lawyers in a population of around 250m, or 75 times as many lawyers per head of population as in Japan. Expatriates living in Japan often underline the general well being of the Japanese people, their mutual support and regard for each other, the law-abiding nature of Japanese society and the very low incidence of crime, especially violent crime. This may be viewed in sharp contrast to what may be found in the U.S.A., where lawyers play a strong hand in preserving key elements of what has become known as a “compensation culture” or “culture of complaint” (inventing the “class action” or creating new “causes of action” and legal claims). In its latest edition, the Oxford Companion to American Law states that the popular perception of lawyers in the United States is “sharply negative”, adding that “American lawyers are distrusted and despised” (at 495). Some might infer from these developments an inverse relationship between the density of lawyers and national happiness. What do these comparisons tell us about the legal culture and responsibility of lawyers in these respective countries ? Taken from another – less controversial – angle, we may take the issue of lawyers’ social responsibility through the lens of the means that are provided, by society, for resolving without prohibitive cost or inordinate delay bona fide civil disputes which the parties themselves are unable to resolve. Put differently, we are referring here to the fundamental right to have access to a court, itself a cornerstone of the rule of law. In meeting this requirement, most legal systems face two enduring obstacles. The first is expense, the second delay. Quite obviously, the State here has a duty to ensure that lawyers carry out their responsibilities effectively. The Scots recognized this problem as long ago as 1424 when, in the world’s first statutory authority on legal aid for the poor, it was enacted that “If there be any poor creature for default of cunning or means that cannot or may not follow his course”, free legal assistance should be given to him. Sophisticated means of legal aid developed in Great Britain after WW2. Having said as much, by 1997, costs spiraled out of control (at the time, legal aid was the fastest rising item of government expenditure overall). By reason of this dramatic situation, it ironically fell to the New Labour government to restrain access to civil legal aid. To substitute for these decreases, lawyers and policy-makers devised novel mechanisms of financing such as “conditional fee agreements” and certain forms of insurance. The state of the matter is still in flux today. In short, the responsibility of lawyers remains one of the highest concerns in today’s society.