Legal Ethics provides an overview of this topic, highlighting that the issues surrounding professional conduct are not always black and white and raising interesting questions about how lawyers act and what their role entails. Key topics, such as confidentiality, negligence, and fees are covered, with references throughout to the professional codes of conduct. The work asks: who would or should defend a potential murderer in court? Can a lawyer represent two parties on the same case? Is ‘no win-no fee’ an ethical system? What are Chinese walls and do they work? Features throughout the title to aid learning include the highlighting of key cases, principles, and definitions; the inclusion of a variety of viewpoints through cases, popular media, and scholarly articles; and the inclusion of ‘digging deeper’ and ‘alternative viewpoint’ boxes which encourage critical reflection and better understanding of key topics.
Book
Jonathan Herring
Legal Ethics provides an overview of this topic, highlighting that the issues surrounding professional conduct are not always black and white and raising interesting questions about how lawyers act and what their role entails. Key topics, such as confidentiality, negligence, and vnfees, are covered, with references throughout to the professional codes of conduct. The work asks: who would or should defend a potential murderer in court? Can a lawyer represent two parties on the same case? Is ‘no win–no fee’ an ethical system? What are Chinese walls and do they work? Features throughout the title to aid learning include the highlighting of key cases, principles, and definitions; the inclusion of a variety of viewpoints through cases, popular media, and scholarly articles; and the inclusion of ‘digging deeper’ and ‘alternative viewpoint’ boxes which encourage critical reflection and better understanding of key topics.
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The legal traditions of the world contain large amounts of information relating to human conduct as well as a large amount of theory, or at least second-order information, about themselves and the relations which each of them have with other traditions. This chapter discusses the multiplicity of traditions, normativity in legal traditions, and sustaining diversity in law.
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This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.
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This chapter explores trustees’ management powers. The management powers of trustees are concerned with looking after property or funds. They do not allow the trustees to choose who benefits. In addition, the powers of management conferred upon a trustee are not the same in every case. Quite obviously, the powers of express trustees are likely to differ significantly from those of constructive trustees upon whom a trust has been imposed because of their improper conduct. In the latter case, the question of the trustees’ powers rarely arises. They are wrongdoers, who are, by definition, acting in breach of duty. How far they are authorized to act is, therefore, unlikely to be an issue.
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H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter first explains the open texture of law, which shows that there are, indeed, areas of conduct where much must be left to be developed by courts or officials, striking a balance between competing interests that vary in weight from case to case. It then discusses the varieties of rule-scepticism, finality and infallibility in judicial decision, and uncertainty in the rule of recognition.
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This chapter explores trustees’ management powers. The management powers of trustees are concerned with looking after property or funds. They do not allow the trustees to choose who benefits. In addition, the powers of management conferred upon a trustee are not the same in every case. Quite obviously, the powers of express trustees are likely to differ significantly from those of constructive trustees upon whom a trust has been imposed because of their improper conduct. In the latter case, the question of the trustees’ powers rarely arises. They are wrongdoers, who are, by definition, acting in breach of duty. How far they are authorized to act is, therefore, unlikely to be an issue.
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This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.
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Chapter 2 sketched a normative model of the criminal process in which the pursuit of a particular end—retributive justice—was constituted and constrained by respect for rights and other values. This chapter examines one way in which the demands of this rather abstract model can be put into practice: through the consideration of ethics. It begins with a brief discussion of the idea of ethical conduct. It then outlines some unethical practices, and is followed by attempts to examine and reconstruct some possible justifications for such practices. Next, it looks at the problems of displacing the occupational cultures and other influences which may lead to resistance against change. It goes on to discuss formal accountability systems and concludes with a consideration of the prospects for bringing about changes in the conduct of practitioners within the system.
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This introductory chapter explains the philosophy of the book and its pedagogical features. It assists in broadening research skills and knowledge. Further, it introduces the Civil Procedure Rules. Finally, it highlights professional conduct considerations and how they are dealt with in this book.
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State responsibility arises from the violation by a State (or other international legal person) of an international obligation that can be one of customary international law or arising from a treaty. The violation must be due to conduct attributable to a State. This chapter discusses the nature of State responsibility; attribution; breach of an international obligation of the State; circumstances precluding wrongfulness (defences); consequences of a breach; enforcement of a claim; and treatment of aliens.
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This chapter discusses the elements of international crimes. In general, a crime is conceived as having two components: prohibited conduct (which may be called the objective, material, or ‘real’ element of the crime or its actus reus) and a culpable mental state (which may be called the subjective, or mental element of the crime or its mens rea). In addition to material and mental elements, certain international crimes may also require a contextual element. That is, some international crimes may require that the prohibited act occurs in or has a relationship to a particular set of circumstances: for example, a war crime must be closely connected with an armed conflict. This contextual element is sometimes also called a nexus requirement.
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This chapter discusses the admissibility of evidence of character. A number of factors govern the admissibility of character evidence, including whether the proceedings are civil or criminal and whether the evidence relates to the character of a party or non-party. It is also necessary to consider the nature of the character evidence in question. It may relate to either good or bad character and, in either event, may constitute evidence of a person’s actual disposition, that is his propensity to act, think, or feel in a given way; or evidence of his reputation, that is his reputed disposition or propensity to act, think, or feel in a given way. Thus, the character of a person may be proved by evidence of general disposition, by evidence of specific examples of his conduct on other occasions (including, in the case of bad conduct, evidence of his previous convictions), or by evidence of his reputation among those to whom he is known. The chapter considers civil cases in which bad character designated ‘similar fact evidence’ has been admitted
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This chapter discusses the admissibility of evidence of character. A number of factors govern the admissibility of character evidence, including whether the proceedings are civil or criminal and whether the evidence relates to the character of a party or non-party. It is also necessary to consider the nature of the character evidence in question. It may relate to either good or bad character and, in either event, may constitute evidence of a person’s actual disposition, that is his propensity to act, think, or feel in a given way; or evidence of his reputation, that is his reputed disposition or propensity to act, think, or feel in a given way. Thus, the character of a person may be proved by evidence of general disposition, by evidence of specific examples of his conduct on other occasions (including, in the case of bad conduct, evidence of his previous convictions), or by evidence of his reputation among those to whom he is known. The chapter considers civil cases in which bad character designated ‘similar fact evidence’ has been admitted.
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This chapter evaluates professional ethics in alternative dispute resolution (ADR) processes. Lawyers must advise their clients about ADR options at all stages of the dispute. They can provide an ADR service for clients, provided there is no conflict of interest. In ADR processes, lawyers must observe the rules of the Bar Code of Conduct or the Solicitors Regulation Authority (SRA) Principles and Code of Conduct. If the lawyer is acting under a conditional fee agreement (CFA), a damages-based agreement (DBA), or in a case with third-party funding, care must be taken to ensure that the settlement is in the client's best interests. When acting in mediation or negotiation, a lawyer must act within the client's instructions and take care not to mislead the other side; disclose confidential information to the other side (or the mediator) unless the client consents; reveal the details of the negotiation or what took place in mediation to third parties or to the court; and exceed the limits of their authority.
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Clare Firth, Jennifer Seymour, Lucy Crompton, Helen Fox, Frances Seabridge, Jennifer Seymour, and Elizabeth Smart
This chapter begins with a description of how the legal services market has undergone recent change, with the Solicitors Regulation Authority’s (SRA) Principles and Codes of Conduct within the Standards and Regulations replacing the previous outcomes-focused regulation code (OFR Code). It considers what being a member of the profession and a good solicitor means, the Principles, relevant paragraphs of the Codes of Conduct, the Transparency Rules, and the SRA’s Enforcement Strategy currently in force. It explains how the recent changes have widened legal services provision and introduced further flexibility into how solicitors and firms justify their compliance with the regulations. It then looks at the practical application of the principles and paragraphs which are most relevant to readers at this stage of their legal career as a student (covering practical examples relevant to each core legal practice area) and trainee.
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This chapter focuses on the approach of the courts to alternative dispute resolution (ADR). Parties are required to consider ADR before proceedings are issued by the protocols and Practice Direction—Pre-action Conduct. If ADR is not undertaken before issue, then it should be considered at the track allocation stage (when all the statements of case have been filed), and again after exchange of documents, and also when witness statements and expert evidence have been exchanged. The court will actively consider whether attempts have been made to settle the dispute by ADR at any case management conference, and may direct the parties to attempt ADR. If the parties reject ADR, before issue or at any stage of the litigation, they should have reasonable and cogent reasons for doing so and may be required to explain these reasons to the court. Moreover, the courts will seek to uphold and enforce ADR clauses in contracts.
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Michael J. Allen and Ian Edwards
Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter explains the concept of actus reus. It discusses the elements of crime, defining an actus reus, proving an actus reus, that conduct must be voluntary, state of affairs offences, omissions liability (situations in which a person will be liable for failing to act), causation (including the principles of factual and legal causation), and coincidence in time of actus reus and mens rea. ‘The law in context’ feature analyses critically English law’s approach to liability for causing another person’s suicide.
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This chapter provides an overview of actus reus, which refers to the ‘external elements’ of an offence. These external elements do not simply relate to D’s conduct. Rather, as we will see, the actus reus of an offence includes any offence elements outside of the fault element (‘mens rea’) of the offence. Before discussing the elements that form the actus reus, this chapter considers the distinction between actus reus and mens rea. It then describes the three elements of actus reus: conduct, circumstances, and results. It also explains the categories of actus reus offences, omissions liability, and causation before concluding with sections that outline potential options for legal reform and a structure for analysing the actus reus of an offence when applying the law in a problem-type question. Relevant cases are highlighted throughout the chapter, with a brief summary of the main facts and judgment.
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This chapter provides an overview of mens rea, loosely translated as ‘guilty mind’. Whereas the concept of actus reus focusses on the external elements of an offence, mens rea focusses on state of mind or fault. The mens rea of the offence describes the fault element with which D acted: D intended, believed, foresaw as a risk of the proscribed element; and so on. The chapter first considers how offences differ in the role mens rea plays. For some offences a mens rea element may be required in relation to each actus reus element; for other offences there are actus reus elements that do not have a corresponding mens rea and vice versa. The chapter moves on to discuss the legal meaning of central mens rea terms such as ‘intention’, ‘negligence’, ‘dishonesty’, and ‘recklessness’. Finally, it outlines reform debates, and a structure for analysing the mens rea of an offence when applying the law in a problem-type question. Relevant cases are highlighted throughout the chapter.
