Ethical Problems in the Practice of Law: A Book Review Essay
Ethical Problems in the Practice of Law: A Book Review
There are a number of laws in any given society. These laws seek to manage the nature of relationships and transactions in the society. The intent is for society to be orderly, stable and based on justice (Black, 1979). In an ideal world where every human being is just and acts for the benefit of all, law might not be applicable anymore, but given the complexities of society, these laws are important in maintaining order and enforcing justice. Laws are written and legislated usually by the duly elected members of the legislature of the government in any nation.
These laws are based on the norms, the value system and at times, the dominant ideology in the society (Dworkin, 1986). The major aspects of the relationships and transactions between and among humans are covered by the laws of the land. There are laws that define what is considered as crime in the society and how such crimes will be punished if committed by any member of the given society. There are also laws that govern the contracts and obligations entered into by two or more people. Laws like these prescribe the ideal nature of such contracts and obligations, and also stipulate what are prohibited.
In addition to this, there are laws that seek to protect citizens from the negligence of others or any acts committed that may impinge upon the rights of others (Glenn, 2000). The properties of citizens are also protected under the law. Such property laws govern the ownership of people over land and other properties that belong to them. This way, their rights to their properties are protected. On top of these laws, the Constitution is the basic law that guarantees the freedoms, rights, and duties of the citizens of a particular country.
The Constitution is also supported by other laws and policies that seek to reinforce and guarantee the freedoms and rights of the citizens. This body of laws collectively seeks to make society orderly (Glenn, 2000). Legislators write and enact laws for the society, the police and other government agencies enforce such laws—those who uphold the law are rewarded, albeit subtly, and the violators are apprehended and punished accordingly. The violators are not punished immediately, however, as they are also entitled to be tried and litigated under the judicial system of the society where they belong to.
This is where the judiciary steps in. Through the institution of the dispensation of justice, accused persons may argue about their innocence and the aggrieved parties may bring their cases to the judicial officials against the people who apparently wronged them. In this process, lawyers perform a significant task (Glenn, 2000). Lawyers in the Legal System Lawyers are the professionals who interpret the provisions of the laws of the society and looks at the principles in these laws and present solutions and applications regarding difficulties and interpretations of these laws.
In litigations, the services of lawyers are hired by both the accused persons and the aggrieved party. This is because these laypersons do not have a nuanced understanding of the law, its applications, ambiguities and interpretations. As such, they would need the help of lawyers in sorting through their experiences and proving the merits of their case in the courts (Glenn, 2000). Consequently, they would seek redress in cases where their rights are impinged upon. This article reviews Ethical Problems in the Practice of Law, written by Lerman & Schrag (2005).
It looks at the major topics covered by the authors as well as the main points they make in the book. It will also evaluate these arguments in light of several literatures written about the same subject matter. In order to review the book more effectively, the role of lawyers in the legal system and the kinds of relationships that they have with their clients should be reviewed first. This will provide a solid background about the law and the nature of the lawyers’ profession prior to the discussion of the major themes and issues discussed by Lerman & Schrag (2005) in their book.
The law profession, however, is not limited to this kind of practice. There are various other ways in which lawyers use their knowledge and expertise. Several kinds of responsibilities are performed by lawyers, depending on the country in which they practice. These responsibilities include the following. For one, lawyers present legal arguments in the courts of law. In this regard, the lawyer represents his client in the court proceedings and presentation of arguments. Some countries may allow persons to present arguments in the courts without the help of lawyers.
However, this may prove inefficient as individuals may not be aware of how the legal system works. Hence, lawyers make it possible for the proceedings to go as smoothly as possible (Kent, 2002). Lawyers are also engaged in the research, drafting and final writing of papers for the use of courts. Prior to the delivery of oral arguments, lawyers provide a brief of the backgrounds, facts and main points of the case. In short, lawyers are called upon to deliver both their written and oral arguments regarding the cases which they are handling.
Before the actual process of litigation and court hearing, however, the lawyer would need to be in consultation with his or her clients about the provisions of the law and other matters that directly affect the case being brought to the courts. Even without litigation or court cases, lawyers still provide necessary legal advice to those who seek their services (Abel & Lewis, 1988). Part of the lawyers’ work is also the protection of intellectual property rights and the management of contracts.
In relation to this, contracts are either drafted by a lawyer or the draft passes through them for review and revision in accordance with what the law allows in such cases. The transfer of deeds of real properties is also done by lawyers. The legal documents as well as the necessary processes are facilitated by the lawyer in this regard. Moreover, the wills, trusts of people who expect their demise soon; or those who have already passed away are implemented by lawyers. Lastly, lawyers prosecute or defend people who are suspected of having committed crime (Abel & Lewis, 1988).
Before a person could practice law, he should have completed the prescribed course of study, and usually, he should have passed the bar examinations. The purpose of this is to ensure that those who practice law are indeed capable of doing so and that they are accountable to the government and to the society as a whole in the practice of their profession (Abel & Lewis, 1988). Lawyers and the Need for Regulation Requiring lawyers to acquire license prior to practicing law is one strategy in regulating the profession.
Only those who pass the required standards would be able to practice law. Once the lawyers have their licenses, however, the necessity for regulation is still evident because of the relationship of the lawyer with its clients. The rights of the clients of lawyers should also be ensured and protected against the malpractice and abuse of lawyers. In some countries, the Department of Justice is the government agency that governs regulates lawyers. In other countries, it is the Supreme Court (Abel & Lewis, 1988). The role of lawyers in the society is important.
As such, should they fail or make mistakes, they compromise the reputation of the profession. Because of the sensitivity of the relationship of lawyers with their clients, the need for regulation in the profession cannot be overemphasized. Against the backdrop of the ethical issues besieging the legal profession, the textbook on legal ethics written by Lerman and Schrag (2005) provides practical guidance together with an explanation of the foundational principles and the laws that govern the situations where issues of legal ethics may arise.
Another important reason for the regulation of the practice of law is the existence of a myriad of ethical issues that should be confronted by lawyers in their profession. Lerman and Schrag’s (2005) Ethical Problems in the Practice of Law, explores the laws and other related institutions that govern and regulate lawyers and the way that they practice law. In addition to this, the authors dealt with the practical aspects of these laws as they apply to torts, contracts and obligations, the prosecution and defense of suspected criminals, real estate, family law and civil law.
The authors formatted their book such that it would be easily accessible and readable. It also contains digests of important related doctrines to the topic that they are exploring. Such highlighting of related doctrines can be found throughout the book. They also presented judicial opinions in their edited versions so that the student will not need to go through every minute detail of the cases. In terms of presentation, the authors used the Socratic method of presenting questions and answers for the purpose of presenting the laws and the major issues governing such issues.
Since the law profession is rife with ethical issues, the authors also found it expedient to include rules governing professional conduct. Such set of rules are important for lawyers in helping them practice their profession. This cursory examination of the book will be further expanded in the succeeding sections. A detailed review of the chapters of the book will be made. This review will also look at the language used by the authors, the level of language, the main points of their chapters and the solutions they provided to several problematic areas presented in the text.
Background on the Authors The authors of Ethical Problems in the Practice of Law have had experience and authority in the subject that they have written about. They have had extensive classroom experience; they have also researched and practiced the law profession throughout their career and they have been engaged in the policy-making process. This broad range of experience make Lerman and Schrag as veritable authors in the field of legal ethics and their book is a testament to these experiences. Lisa G. Lerman Since 1987, Lisa G.
Lerman has served as a law professor at the Columbus School of Law at the Catholic University of America. She has had extensive experience in teaching contracts, exercising lawyers’ professional responsibility and the practicum on public policy. In addition to this, she has written numerous articles on law firms, the practice of law, about lawyers, and law education. Her focus used to be domestic law; however, she has focused on the relationship of lawyers and clients, together with the issue of dishonesty of lawyers occupying her attention.
Prof. Lerman has long been considered an expert on ethics on the legal profession. In recognition of her advocacy, she has been named the chair of the ABA National Conference on Professional Responsibility’s Planning Committee. Given these plethora of achievements and experiences, she is an authority on the subject she has co-written with Philip G. Schrag (Catholic University of America Website, 2007). Philip G. Schrag Philip G. Schrag, on the other hand, is a professor of Civil Procedure at Georgetown Law School of the Georgetown University.
He is currently the Director of the Center for Applied Legal Studies. He also provides career guidance to lawyers through the Public Interest Law Scholars Program. He has also served as a civil servant by writing legislations, notable among these are New York City’s Consumer Protection Act of 1969 and his involvement with several boards and agencies of the government. He has written twelve books (Georgetown Law Website, 2007). Organization of the Book Ethical Problems in the Practice of Law has been organized thematically.
It has ten (10) chapters that explore deeply and comprehensively the end-to-end practice of the legal profession from the provision of legal advice, the conduct of the representation of clients in the courts as well as the legal and ethical obligations of lawyers even after they have represented a client. The Regulation of Lawyers Chapter 1 deals with the regulation of lawyers. They explained the basis of the process of making prospective lawyers go through the bar examinations in order to get their license.
They also enumerated and explained the institutions that make the regulations in the legal profession. These institutions are crucial in ensuring that lawyers are practicing their profession in accordance with the law and without impinging upon the rights of their clients. These institutions are: (1) the highest state courts; (2) bar associations; (3) lawyer disciplinary agencies; (4) the American Bar Association; (5) the American Law Institute; (6) Federal and State trial courts; and (7) the Legislatures among others. The authors also took a look at the law governing lawyers.
They walked through the special provisions of this law and cited instances in which the provisions of this law could be useful and where there are ambiguities and vagueness. In addition to this, Lerman and Schrag provided cases and examples to illustrate the principles that they discussed. Lawyers and the Confidentiality of Clients Client confidences and the duties of lawyers to protect this confidential information is the subject matter of Chapter 2. The duo started out by defining the bases of confidentiality and the way that clients provide their trust to their lawyers.
There are instances, however, in which this duty to protect confidentiality may be exempted and the law and national interest may even compel the lawyer to disclose some important matters confided to him by the client. In any case, however, the lawyer should never disclose confidential information from a client in the interest of personal gain or for the use of another client as this may be construed as a violation of the trust granted to the lawyer by the client. The chapter closes with several tips and suggestions on informing the clients about confidentiality and how such confidentiality may be protected.
University/College: University of Chicago
Type of paper: Thesis/Dissertation Chapter
Date: 20 February 2017
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