This chapter discusses the principle of confidentiality. It explains the protection of lawyer–client communications and it discusses professional guidance on confidentiality. It is clear that the duty of confidence is not an absolute one and there are circumstances in which it is appropriate, indeed even required, for a lawyer to disclose confidential information. The chapter explores when these exceptions to the general principle of protection of confidence arise. It goes on to examine the rule of legal professional privilege and the circumstances in which lawyers have a duty to disclose. The chapter discusses when a lawyer is permitted to breach confidence. In doing so, it looks at the broader ethical foundation for the duty of confidence.
Chapter
6. Confidentiality
Chapter
7. Conflicts of interests
This chapter discusses the ‘conflicts of interest’ principle. It explains the principles that underpin the no conflict rule. While generally lawyers are required to avoid being in a position in which there is a conflict between their own interests and the interest of a client, or indeed between the interests of two clients, sometimes this is unavoidable. The chapter consider the obligations under the professional codes of conduct for the rule. The chapter also explores the ethical basis for the principle and exceptions to it. The chapter looks too at some of the case law on how lawyers should avoid conflicts of interest.
Chapter
1. Ethical theories
This chapter sets out some general theories about ethics. How do we judge what is the right thing to do? What makes a decision morally justifiable? What makes a person good? It considers some ethical disagreements and describes some of the general ethical approaches that are taken to ethical dilemmas. It then addresses the question of whether lawyers’ ethics are any different from others; in other words, whether lawyers can be said to have any extra ethical obligations because they are lawyers. Finally, it looks at how legal training and legal practice has taken the ethical obligations of lawyers more seriously.
Chapter
10. Litigation
This chapter explores the ethical issues that arise around litigation. It discusses theories of litigation, including disputes over whether litigation is ‘good’. The attitude that anything that helps a client to win in litigation is justified is rarely accepted these days, and there is a need for lawyers to weigh up their duties to the court and to their clients. The chapter covers the adversarial system of litigation in England and Wales, and inquisitorial adjudication. This can create tensions for lawyers between their duties to their clients and their duties the justice system and to the general public. The chapter also covers both criminal and civil litigation proceedings. In addition, the chapter considers advocacy services and the duties that litigators owe to the court.
Chapter
15. Applying ethical theories
This chapter explores the application of the principles discussed in the preceding chapters to specific cases. It imagines how four lawyers might respond to three different scenarios. The first is taken from criminal law. The other two are taken from commercial law and family law. The four lawyers represent different schools of thought on lawyers’ ethics. This gives readers the chance to think through how taking a different general ethical approach might impact on their response to a particular scenario. It also might help readers more clearly identify which broad ethical theory they support. It shows how ethical disputes can have considerable practical significance.
