I have been a lawyer for a few years now, but I didn’t understand how important we lawyers are till I started practising. After all, we do a lot more than people think – especially in the North American legal system.
“A lawyer’s duty to a client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.” –
Law Society of Saskatchewan
I will tell you what we do. We help seek justice for our clients, bestowing upon them apt knowledge of the law, which has been termed as the most essential component of the legal system.
However, before understanding the justice seekers, it is also equally crucial to comprehend the essence of justice providers. And I will tell you why.
The Constitution of the United States
I remember how, in 1787, numerous representatives from 12 of the 13 states of America, excluding Rhode Island, which included public figures such as George Washington, Benjamin Franklin, James Madison, John Adams, and Thomas Jefferson, made their presence in a constitutional convention where US Constitution was given birth to.
And boy, I will tell you this – things were reckless back then. A requirement of having nine states to ratify the draft of the constitution, in 1798, when the ninth state gave their assent to the aforementioned, the draft converted into an official codified document which repealed the regulatory statute preceding it, the Articles of Confederation.
When the proposed constitution saw the light of day, the public debates started raising a very principal gap which was that the said document contained no explicit protection of individual civil rights.
To rectify the situation, the creators of the constitution assured the citizens of the states where this discussion was termed the most heated that once made effective, the document shall be amended to include individual rights as the first and foremost act. I am sure they had to think a fair bit here.
And I tell you this because the said concern gave rise to 12 constitutional amendments in the very same year as the document. Today, I will tell you that this is known as the Constitution.
My professor told me about how it “was put into motion, of which 10 amendments were passed followed by their conversion into the Bill of Rights. Complementing the amendments was the Bill of Rights, which the judicial authorities amended 17 times further under the Constitution”.
The Hierarchy of Courts
The U.S. Constitution has the sole authority brought into existence. Any lawyer – like me – would tell you that. If you study law, you will know that the U.S. Constitution grants Congress the responsibility of creating lower courts. The U.S. district courts and the U.S. Circuit Courts of Appeals are the two inferior courts Congress has created with their power under the supervision of the Supreme Court.
The former, which is the U.S. district courts, is where the majority of federal cases, be they civil and/or criminal, are first heard. So, they are called the courts of first instance in the judicial system. I remember how my classes taught how there were “94 such district courts positioned for the regulation of justice in different parts of the nation”.
Positioned in each court of Appeals District Courts, Federal Circuit Court of International Trade, Claims Court, and Court of Veterans Appeals Supreme Court state is at least one District court. Not just the fact that District judges preside individually to hear cases, but as my professor told me:
“Judges that have control over bankruptcy cases and magistrate judges who are obligated to extend their judicial duties, all of them fall under the supervision of district judges that share the seat with the aforesaid judges within the district courts.”
Professor Markham
Any decision made in the said district court, if the parties are dissatisfied with the judgment passed, then can file an appeal in the court of appeals. Organized into 12, these regional intermediate appellate courts are located in different parts of the US and serve with a nationwide jurisdiction for a limited number of specialized cases.
A party to a case can file an appeal in the Court of Appeals, which is often heard by a panel comprising three judges each. Adding on the same, these circuit courts fall under the regional category as well as entertain appeals from decisions ordered by the federal administrative bodies, whereas a non-regional circuit court known as the Federal Circuit shines a light on appeals in specific cases such as those that involve patent laws and claims against the federal government.
After obtaining a judgment or order from the court of appeals, if the party wants to further the proceedings, then they can file for a petition in the US Supreme Court, known as the apex court in the country, which is positioned at the top of the federal court system.
Encompassing nine justices that preside hearings together to come to a consensual conclusion, at its discretion, the Supreme Court shall entertain appeals coming from the federal circuit courts of appeals as well as the high courts of the state if the appeal comprises of the U.S. Constitution or any law prevalent in the nation.
The Icy Whiz team talked to Mark Pierce, the Founding Partner of Wyoming Trust and LLC Attorney, about the ethical dilemmas lawyers face balancing client advocacy and court duty. Here is what he said:
“We often face dilemmas in knowing when to let go of cases. Sometimes, a case may seem promising based on client consultations and initial data collection, but it becomes more apparent that it may not be worth pursuing as the matter develops.
The dilemma is deciding when to set boundaries with clients who can’t see past the facts. Continuing would not only create moral conflicts for us, but it could cause us to waste time and legal resources on a pointless matter.”
How Do Legislatures Come Into Action?
From passing a bill in both houses of Congress, which is the Senate and the House of Representatives, to showcasing the same before the President to obtain his/her assent or veto, who serves as the head of the executive division, a federal law can only exist if the bill follows through the aforementioned steps.
Adding to the aforesaid, if the President uses his/her veto power to negate a bill, Congress has the opportunity to override the said decision if the bill receives 2/3 votes from the House of Congress.
And then the process is pretty straightforward, as all of us legal graduates know, but if you want me to elaborate, here it is again.
Post the assent to a bill, it becomes a federal law, which is none other than the statutes that are in use. From encompassing the concept of paying income taxes and establishing the Social Security system to protecting the environment by regulating air and water pollution, the legal statutes touch upon a variety of subjects that are essential for citizens.
Each state comprises their own legislative and executive divisions that create, initiate, and implement laws within that particular state.
In an interview with the Icy WHiz team, Mathew Kerbis, The Subscription Attorney at Subscription Attorney LLC, explained the ethical dilemmas lawyers face between zealous representation and legal integrity. Here is what he said:
“Lawyers being financially incentivized by the billable hour as a business model is the biggest ethical dilemma. The court should only be reserved for matters truly unresolvable. Instead, lawyers push clients to litigate since lawyers stand to earn more if they are billing their time.
Adopting subscription and/or flat-fee pricing and helping clients with litigation avoidance as a subscription benefit is a way to avoid this ethical conundrum while better-serving clients and saving taxpayer dollars on a less clogged-up court system.”
The Idea of A Lawyer
Serving as an advocate for the parties involved in a dispute, a lawyer’s duty is not only to present their side of the evidence and analyze the evidence showcased by the other side but to express arguments that prove the parties’ contentions and hold that interest till the end of the proceedings.
From engaging in any sort of monetary transaction regarding a home or business, drafting a will, negotiating the terms of a contract, or indulging in a situation pertaining to separation or divorce, lawyers make it a point to safeguard the interest of their clients through and through.
The scope of understanding the lawyer’s responsibilities is extensive as they are not only restricted to explaining to their clients which laws are applicable to their case and outlining a number of different options suitable but also in terms of advising the risks and benefits each choice holds.
Lawyers also indulge in negotiations with the other party to find a way to resolve an issue amicably and mutually, and that is beneficial in all senses.
Although lawyers are made to safeguard the interest and offer legal protection to their clients, it is essential to pinpoint that they also represent the court as officers. Hence, they owe a duty of due respect in terms of maintaining professional conduct in the court of law that includes not only a duty of honesty and integrity but also a duty of being frank, which refers to a responsibility of unveiling certain factual and legal information to the court.
Andy Gillin, an Attorney & Managing Partner at GJEL Accident Attorneys, talked to the Icy Whiz team about the challenging ethical dilemmas lawyers face. Here is an excerpt from the interview:
“One of the most challenging ethical dilemmas lawyers face revolves around the tension between representing their clients zealously and maintaining the integrity of the legal system. This balance can become quite precarious, especially in the heat of high-stakes litigation.
For instance, a common dilemma arises when evidence that could benefit a client but seems questionable in its origin. Lawyers must decide whether to use this evidence, potentially supporting their client’s case but risking ethical violations if the evidence was obtained improperly.
The line between aggressive representation and ethical misconduct can blur, making decisions fraught with complexity.
Another complex scenario concerns client confidentiality versus the obligation to the court. Lawyers often learn information in confidence that could ultimately affect the case’s outcome or broader legal implications.
If a lawyer knows that their client intends to commit perjury or ongoing fraud upon the court, they face the dilemma of maintaining client confidentiality or disclosing the wrongdoing to uphold judicial integrity.
Conflicts of interest also present significant ethical challenges. For example, personal injury lawyers might handle multiple cases related to the same event or against the same defendant.
Ensuring that each client’s interests are adequately protected without favoring one over another can test the ethical limits of representation.
When corporate counsel deals with internal corruption or misconduct within a company, they must navigate the tricky waters of loyalty to the employer while ensuring compliance with legal and ethical standards.
This often involves advising against actions that might harm the company in the short term but uphold broader ethical obligations.
In all these scenarios, the dual role of being a client’s advocate and an officer of the court demands a careful and often difficult balancing act. Lawyers must not only possess legal acumen but also a strong ethical compass.
The challenge is to remain steadfast in upholding the law while vigorously defending their client’s rights, a task easier said than done in the complex landscape of modern legal practice.”
The Criteria for Becoming a Lawyer
To understand how laws and the legal profession are executed, lawyers must undergo special kind of training. Each state has put forth certain standards that must be met by an individual only after which a license is granted for the said person to practice law in that location.
The following are the requisites that must be fulfilled by the individual to do the aforesaid:
- Have a bachelor’s degree or its equivalent.
- Complete three years at a law school with ABA recognition.
- Attempt and clear the state bar examination, which usually lasts for two or three days. The exam analyses the knowledge of the individual in specified areas of law. Additionally, there are tests that examine professional ethics and professional responsibility.
- Must have a clean slate pertaining to character and fitness. Applicants for legal licenses must be approved by a committee that examines and analyses the character and background of the said person.
- Take an oath, to always serve justice, maintain ethics and support the state and federal constitutions as well as laws.
- Own a license authorized by the top court in the state, which usually refers to the state supreme court.
The Access Granted to Lawyers and Legal Services
Every individual is entitled to a right to call upon for receiving assistance from a lawyer of their choice, who shall not only be responsible for safeguarding and establishing their rights but also for defending the individuals in all stages of civil or criminal proceedings.
It is highly essential for the state governments to make sure that proper procedures and responsive protocols are brought into play for having given equal access to lawyers within their territory and subject to their jurisdiction, without categorization of any kind that includes discrimination on the basis of race, colour, ethnic origin, sex, language, religion, political or another opinion, national or social origin, property, birth, economic or another status.
Not only the aforementioned, but the state governments must also very diligently put forth the provisions for having sufficient funding and other resources for legal services to the poor and, as deemed important, to any other disadvantaged persons.
The professional conduct of lawyers shall be in such a form so that there is cooperation in the organization and consensus with the provision of services, facilities, and other resources.
Apart from the duties stated above, the state governments and other professional associations and institutions of lawyers must be in a position to initiate and promote programmes that serve as a tool to inform the public about their rights and duties under the law and the importance of lawyers in safeguarding their fundamental freedoms.
We interviewed Cynthia Hernandez, the Managing Attorney for Hernandez Family Law & Mediation, on this. Here is what she had to say:
“As the Managing Attorney at Hernandez Family Law & Mediation, I have encountered several ethical dilemmas where client advocacy intersects with court duty.
One of the toughest ethical challenges I’ve faced involves balancing the need to zealously represent my client’s interests with the obligation to ensure that the evidence presented in court is truthful and complies with legal standards.
For instance, during a contentious custody battle, a client once insisted on using evidence that was obtained secretly and potentially violated privacy laws.
My duty was to protect my client’s interests, but I also had an ethical obligation to the court to not engage in or condone illegal activities.
I had to counsel my client about the repercussions of submitting such evidence, leading to us taking a different, yet legal, approach to strengthen their case.
Another dilemma often arises in scenarios requiring emotional support while maintaining objectivity. Divorce and custody cases are emotionally charged, and clients frequently seek more than just legal advice—they need compassion and understanding.
It’s essential to empathize and support them emotionally without letting personal feelings interfere with the objective analysis and legal strategies necessary for their case.
Lastly, situations involving the potential exaggeration of facts to gain advantageous settlements pose significant ethical challenges.
In a case where a client might benefit from overstating financial hardships to influence alimony decisions, the temptation to push limits here must be checked by the fundamental duty to uphold the principles of honesty and fairness.
Balancing effective advocacy while remaining truthful to the court requires constant vigilance and ethical clarity.”
Special Safeguards in Criminal Justice Matters
Serving as an absolute essential duty of the state governments is the idea to ensure that all individuals are immediately informed by a competent individual holding the power to bestow the knowledge of their rights, who are known as lawyers, in situations that give rise to an arrest or detention or when they are charged with any criminal offence.
Under any circumstances, if an individual is not able to acquire the service of a lawyer that the interests of justice so require, then the person has the right which entitles them to appoint a lawyer of experience, competence and knowledge who can comprehend the type of the offence they are charged with in order to provide appropriate legal assistance, without any kind of consideration if they fall under the category of an indigent person. I will tell you this – every society needs this. And that is why we do have such similar provisions in many judicial systems across the world.
State governments have the duty to ensure that any and all detained or arrested individuals, attached or devoid of a criminal charge, must have the right to be directed to a lawyer, which shall not take any additional time beyond forty-eight hours from the time of arrest or detention.
Aseem Jha, Founder of Legal Consulting Pro, shared his thoughts on this topic. Here is an excerpt from the interview:
“During my time in litigation before founding a legal process outsourcing company, I encountered a challenging ethical dilemma where I was a co-attorney with my senior.
One real-life experience that brought this dilemma to the forefront occurred during a high-stakes trial where opposing counsel presented misleading evidence to bolster their case.
While my duty as an advocate compelled me to vigorously challenge their arguments in defense of my client’s interests, I also grappled with the ethical obligation to ensure the court’s integrity remained intact.
In navigating this dilemma, I chose to meticulously scrutinize the evidence presented, adhering to ethical standards of honesty and transparency, while zealously advocating for my client within the bounds of the law.
This experience underscored the delicate balance lawyers must strike between advocating for their clients and upholding the principles of justice and fairness in the legal system.”
Duties and Responsibilities of A Lawyer
A lawyer is not in the interest of the clients at all costs through the course of proceedings.
At all times, it is essential for a lawyer to maintain the honour, respect, and decency of the legal profession as they are the essential agents of the administration of justice.
I will elaborate on the duties of lawyers towards their clients:
- It is essential to make the clients understand their legal rights, obligations and duties, as well as brief them about the modus operandi of the legal system which is as relevant to the extent of their legal rights and obligations.
- To assist clients in every possible way and take legal action to protect their interests, which is plausible considering their circumstances.
- As the clients are new to the court system, guiding them in making an appearance before courts, tribunals, or administrative authorities is the most crucial responsibility of a lawyer.
- While keeping in mind the official standards set and the ethics of the legal profession, to maintain the essence of human rights and fundamental freedoms presented by national and international law, lawyers have the duty to protect the rights of their clients and promote the cause of justice in a nutshell.
Safeguarded Rights of The Lawyers
Serving as highly crucial, the state governments must make it a point that not just lawyers are given opportunities to disperse their professional functions without any sort of intimidation, hindrance, or harassment but are also able to have a consultation with their clients freely within their own country and abroad.
Joining the same idea is the fact of any step taken in accordance with recognized professional duties, standards, and ethics.
If action is to protect them from such situations.
To not be associated, linked, or identified with their clients or the aforesaid causes as a result of discharging their functions, is an utmost requirement for a lawyer.
Being in the legal profession, it marks a priority for lawyers to enjoy civil and penal immunity for the relevant statements made by them with good intentions in written or oral pleadings or when they make an appearance before a court, tribunal or other legal or administrative authority.
Ensuring that lawyers are always given access to appropriate information, files and documents in their possession under the required time frame so as to enable the lawyers to provide effective legal assistance to their clients is one of the most essential requisites that must be taken care of by the relevant authorities.
To respect and be marked as confidential always any kind of conversations and consultations that prevail between lawyers and their respective clients within their professional relationship is the responsibility of the state governments.
The Disciplinary Proceedings
In relation to federal law and customs and officially put forth international standards and norms, codes of professional conduct for lawyers must be created by the legal profession.
From the fact that lawyers have the right to a fair hearing, which is inclusive of the right to be assisted by a lawyer at the discretion of the client, to the complaints put up against the law officers be fairly dealt with under appropriate procedures, the lawyers are equipped with specific rights as they are known as the administrators of justice.
Such aforesaid disciplinary proceedings, which are executed against lawyers, are to be brought before an unbiased disciplinary committee created by the legal profession that is put before an independent statutory authority or a court. Hence, the aforesaid is subjected to an independent judicial review.
Wrapping Up
The arena of the legal profession grants the opportunity to lawyers to form and join various professional associations to not just represent their interests but also promote their continuing education and training along with the idea of protecting their professional integrity.
The said professional connections of lawyers must be in sync with the state governments to ensure that everyone receives appropriate and equal access to legal services as well as being able to, without any kind of improper intervention, counsel and assist their clients in accordance with the law and the authorized professional standards and ethics.
And this is why I believe we are important – from analyzing the concept of lawyers and how the judicial branch was brought into force to comprehending the duties and responsibilities the lawyers are bestowed with, we do a lot.
As officers of the court, we are not only responsible for upholding the respect and dignity of the legal system where justice is served with honesty but also the interests of our clients with equal sincerity.
Guest Author: Saket Kumar
Last Updated on June 5, 2024 by Utkarsha
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