Draft independence, loyalty, confidentiality and conflict scenarios

1.

Independence for individual law firms and of the profession as a whole How important is the independence of an individual lawyer/law firm? Is self-regulation indispensable for the safeguarding of Core Principles of Lawyers, esp. the lawyers' professional independence vis--vis the State?

a)

Independence of individual lawyers/law firms CAN A LAWYER, WHO IS EMPLOYED, BE INDEPENDENT ENOUGH TO ACT INDEPENDENTLY FROM THE EMPLOYER'S ORDERS? Does flotation of a law firm on the stock exchange endanger the core principles of a lawyer? Can a law firm be independent if it is owned by a supermarket chain? Assuming that law firms will be acquired by third parties, who will employ the lawyers? How will core values be maintained?

b)

Independence of the profession as a whole? CAN A LAWYER, SUPERVISED BY GOVERNMENT, BE INDEPENDENT ENOUGH, TO ACT AGAINST THE GOVERNMENT? Is lawyers' independence threatened if the government specifies that nonlawyers should draw up lawyers' codes of ethics? Is lawyers' independence threatened if the Executive Government is part of the body that judges whether a lawyer acts against the code of ethics?

c)

Independence of lawyer vis vis client (see case study 2) CAN A LAWYER REFUSE TO COMPLY WITH THE ORDERS OF THE CLIENT?

2.

Confidentiality versus loyalty to client versus independence vis vis client A LAWYER MAY NOT GIVE CONFIDENTIAL TEXTS TO JOURNALISTS. MAY A LAWYER READ CONFIDENTIAL TEXTS TO JOURNALISTS SLOWLY SO THAT THEY CAN PUBLISH THE TEXT, EVEN IF IT IS FAVOURABLE TO THE CLIENT? Jim, a lawyer, has a client who is suspected of being a member of a criminal organisation. Jim receives from the public prosecutor a confidential report of the statements made by an anonymous witness. Jim invites journalists to his office, and recites these statements slowly and in detail. The next day the statements appeared in all news papers. Jim claims this was in the interest of his client, since the witness was heard speaking about a murder in which his client denied any involvement. Jim invokes article 10 of the European Convention on Human Rights on freedom of expression, and article 6 on a fair trial. Did Jim violate his duty of confidentiality?

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3.

Confidentiality IF A JUDGE HAS NOT CONSENTED TO AN INVESTIGATION, A LAWYER DOES NOT HAVE TO COOPERATE WITH IT. IF A JUDGE HAS CONSENTED, THE LAWYER CAN REFUSE INVESTIGATION OF HIS/HER COMPUTERDATA BECAUSE IT MIGHT REVEAL OTHER CLIENT'S SECRETS. IS THAT A VALID ARGUMENT? Government officials (make distinction between: (a) prosecutor with judge permission, (b) criminal police with judge permission and (c) officials of public agency supervising client) in two different teams want to enter Daves law firm, because of alleged insider trading and tipping off by a bank client of Dave, without allegation that Dave is suspected. One team wants to look at the files and books of the office, and the other at Dave's computer and its contents, which also has a lot of correspondence with other clients. Dave refuses access on the grounds that there is confidential information in both areas and that he cannot be forced to breach confidentiality. How should Dave act? Under which circumstances must Dave cooperate with investigations?

4.

Loyalty and Conflict/Loyalty IF A LAWYER CAN FORESEE A POSSIBLE CONFLICT OF INTEREST CAN (S)HE ACCEPT TO ACT FOR A GROUP OF CLIENTS? WHEN THE CONFLICT ARISES MUST (S)HE GIVE UP ALL THE CLIENTS? Joe, a lawyer, is asked to work for a syndicate of insurance companies in asbestos damage claim cases in several industrial companies for damages caused over 6 years. Different insurance companies cover different years in those 6 years. Some insurance companies cover up to certain maxima, some cover the excess. In the general defence whether or not the damage is covered under the policy it is strategically wise and efficient to have one defence lawyer. Later when details become important it turns out that the insurance companies have different interests arguing in which year most of the damage took place. Should Joe have accepted to work for a syndicate of insurance companies? When the interests start to become conflicting, may Joe work for one insurance company or must he send all members of the syndicate to others? Does Joe have a loyalty problem? Can Joe exclude from his mandate the issue when the damage took place? Is client consent relevant?

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European Convention on Human Rights ARTICLE 6 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: o (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; o (b) to have adequate time and the facilities for the preparation of his defence; o (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; o (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; o (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. ARTICLE 10 1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. European Court of Human Rights jurisprudence on Scenario 4

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