The law is designed to protect society by providing for behavioural guidelines to guide the actions of people in the course of their work and lives. The social perspectives of the law, therefore, is an interesting topic to consider as it will clarify just how effectively the law is able to fulfil its main objective. It is important to consider such point of view in the study of the law to ensure that the well-being of the society is the main basis of its interpretation.
One of the main objectives is to be able to set the application of the law to pragmatic use in the society. There are different functions and fields in terms of the application of law but what is most interesting, and perhaps recognisable, to society as a whole is the criminal and civil litigation.
The primary foci of attention in trials are the client and the lawyer. It would perhaps be reasonable to conclude that the relationship between the client and the lawyer, the level of professionalism and the type and amount of information exchanged in the course of the legal process would be of paramount importance when it comes to the courtroom.
Objectives of the Study
The paper aims to investigate the legal and social context of lawyer-client privilege, the disclosure of information obtained within the context of this relationship, and the ethical considerations that affect decisions to disclose privileged information. The responsibility of professional conduct is scrutinised as it specifically applies to trial and court lawyers, and not the whole of the legal profession.
The circumstances are also covered by the law and precedents as a point of reference for such coverage or lack thereof, specifically the ethical concerns related to such situations. The main objective is mainly focused on the ethical constraints that dictate the breadth and scope of the issue of disclosure.
The research is undertaken through the determination of the basic interaction of the two elements, the client and the lawyer. Subsequent to the said step is the main issue being addressed by the research, that are the conditions covered in cases of legal necessity of revealing the information given by the client to the lawyer in confidence with no intention of self-implication in cases where the information is prejudicial to the client’s interests.
Review of Related Literature
The law is a complicated field of practice because it touches on social issues that are not always possible to generalise. It is rendered even more complex because the application of the directives and instructions of the law is often vulnerable to interpretation, and subject to changes of thought and belief systems. Moreover, sociological issues often come into play, and in very few cases can the human element of the legal process be ignored. Human interaction being what it is, whether in personal, corporate or legal scenarios, it is difficult to avoid the many moral pitfalls in the attempt to judge human behaviour.
The law attempts to provide for protection of all members of the society; in other words, the law is designed to protect both sides of the litigation process. It is usually difficult to accept that there is protection for both victim and alleged perpetrator, but the interest of the legal process is to ensure that both sides are fairly represented. This representation applies to all facets of the legal process, from investigation, to consultation and to litigation.
There are significant factors of consideration in the protection of the rights of the participants in different crimes, especially the implications of laws when applied to criminal trials. Lawyers act on the basis of guiding principles of the profession, but these guiding principles cannot cover all possible scenarios or situations. This is true of legal privilege, which protects the confidentiality of information given by clients to their lawyers in the course of representation and consultation, which is one of the most essential bases for the attainment of due process.
The disclosure of important and, in some cases, detrimental information is subject to a presumption of an ethical code that requires that confidentiality be kept as much as possible. The enforcement and the practice of law can be considered as one of the professions that prioritize the confidentiality on the information that is involved. As a parallelism, the medical profession is a good example.
A patient depends on the physician’s discretion in using information in a responsible manner. In cases when a physician may feel that information should be discussed with a member of the family, for instance, because it would lead to better medical care, this must be done with the client’s knowledge and consent.
This basic, underlying presumption of trust also present in the practice of law. While this may sound easy enough to understand, the process of protecting the client and upholding the law may sometimes be mutually exclusive. Lawyers need to seek the balance between upholding the law and the rights of the clients without compromising either. The judicious use of information, and the carefully considered application of disclosure procedures, may facilitate dispensation of the best possible ruling. 
In the course of upholding the law, it is mainly a weighing and prioritizing of the different goals involved. The lawyer’s ethical principles are put to the test when a client who is a self-proclaimed criminal needs to be given the best defence possible. In this case, drawing the line between ethical issues and the right of the client, which can be a criminal, is a challenge.
Such cases constantly blur the setting of boundaries in the practice of law. It opens the door to the study of the cases that question the rationale behind established ethics of law. The discussion of the volatile subject of ethics takes on a wide range of implications depending on the specific subject under consideration. The ethics of law and justice is particularly difficult to discuss because it attempts to provide the guidebook for the whole of society with all its complexities, issues and the different factors that come into play to make society whole.
The society being comprised of a wide variety of people necessitates the use of a certain degree of subjectivity when it comes to the application of the letter of the law. In criminal cases, the decision to withhold or suspend rights, such as legal privilege, based on the perceived severity or nature of the crime committed is always subject to attacks. In this case, the interactions of the law, represented by the lawyers, and the society or the clients are the basic paradigm in the defence of any case.
Upon discussion of the ethics in law and justice, the guidelines that are involved are essential in the course of the research. In relation to the said issue, included in the concepts that are given attention are the confidentiality between the lawyer and the client and the responsibility of the lawyer to represent the client in the court of law specifically in undertaking fiduciary processes.
In this case, the importance of the confidence and trust between the two parties is put into focus. In an empirical study regarding the importance attached by both criminal lawyers and their clients to the level of trust and confidence that exists in the relationship shows that while both lawyers and clients attach significant importance on trust, both sides express dissatisfaction with the relationship.
This is attributed with defendants’ need for the lawyers to have good client-relations skills, not only legal expertise. Lawyers perceive that clients do not exhibit enough trust and respect.  The research shows the importance of cultivating trust in the client-lawyer relationship, which includes presumed confidentiality of information.
This lack of candour is usual in client-lawyer relationships, and the reluctance to disclose embarrassing or sensitive information, especially if it has a direct link to the crime under litigation, is understandable. However, this could have significant impact of the effectiveness of the lawyer to provide informed legal advice.
In the United States, one of the requirements under the Supreme Court is that evidence and information, even if detrimental or prejudicial to interest of the clients, are expected to be given to the authorities. The information is often used to facilitate the speedy and thoroughly considered conclusion of the case. Although lawyers have access to such information, there are no set guidelines for determining the extent to which disclosure of such information would be advisable, or in some cases, mandatory. Many practitioners turn to precedents and perhaps consultation with colleagues. Ultimately, however, lawyers are often left to determine for themselves the execution of the disclosure procedures.
There are some cases which have established generally accepted indicators regarding the issue of disclosure. The studies consulted for the elucidation of this concern has revealed important aspects to be considered for future cases that are similar in scope.
One circumstance has been identified as an absolute exception to the rules of client-lawyer privilege, that of imminent harm or death to the client or to a third party. Several conditions are posited: reasonable belief of the lawyer based on the facts received that failure to disclose the information will inevitably result in bodily harm; consultation with the client regarding disclosure unless it would be counterproductive to do so; no other means other than disclosure is possible for the prevention of harm; and only the facts relevant to the prevention of bodily harm is disclosed. The case involved undisclosed medical information known to the defendant’s lawyer that eventually led to serious bodily harm to the plaintiff.
Several scenarios are discussed in detail whether it directly pertains to the exception described above and what circumstances would preclude such inclusion. One is the case of a client on death row for an unrelated incident, who informs counsel of a crime done by the client but for which another person has been convicted of.
Another is the case of a building owner with knowledge of structural inadequacies in the building. In the event of an earthquake, the collapse would be inevitable and would entail substantial harm to others, and who refuses advice to disclose this information to concerned agencies. Confidentiality rules prevents disclosure in which the knowledge involves harm that would result from natural disasters or force majeure.
The intent of someone to kill or otherwise disable a competitor, disclosed by the spouse while in consultation for a different matter, is also covered by confidentiality rules as the disclosure involves the intent of a third party.
Another exception discussed is the crime-fraud exception, which stipulates that if the client seeks legal advice with the intent of continuing or concealing a criminal act. In these cases, lawyers are not bound by the professional secrecy code based on two propositions: the lawyer is legally prohibited from assisting in unlawful conduct and is compelled to report any knowledge that would lead to the end of the criminal act or acts.
There has been a proposal attempting to provide legal basis that would cover the breadth and scope of these exceptions. However, the possible loss of trust and confidence of clients in legal consultation may very well result.
Lawyers are sought out ostensibly to provide legal advice, but often there is a moral or ethical issue that arises in the course of consultation. The issue of how lawyers should handle situations that call for moral judgement depend on the approach favoured by the lawyer. One method is termed the directive approach, in which the lawyer takes direct responsibility for moral decisions for the client. In this method, the moral values of the lawyer (which may or may not conflict with that of the client) takes precedence.
The lawyer knows best what should be done from a moral as well as the legal issue. The second method is the client-centred counselling which considers first the ideas of the client as to what is the right thing to do and provide legal advice towards that end. The lawyer does not stand in judgment of the client’s actions, nor does the lawyer attempt to influence the client’s decision in any way. The method focuses on client autonomy and empowerment. Thirdly, the collaborative approach involves both the lawyer and client in moral discussions. The method parallels the way friends help each other in moral decisions. Lawyers provide advice but the decision will ultimately come from the client.
In all three methods, the role of the lawyer is to provide legal advice. For information that needs to be disclosed, the approach employed may influence how easily the client will consent to do the right thing and consent to disclosure.
In the review of literature, the recurring theme in decisions on whether or not to disclose information and thus breach the professional duty of secrecy, lawyers are called upon to refer to morally ethical determination. Legally, lawyers are given the choice under certain conditions to make this decision without fear of reprisal. Morally, the ultimate measure of the dilemma is how much the lawyer values the client and the profession.
The aim of the research was to investigate established conditions and situations that have rendered the need for disclosure in litigation using a descriptive type of study approach. The main objective in the descriptive research is mainly to present the general description of the topic of interest. It also presents the possible factors that can affect the subject that is described. The investigation was undertaken through the consideration of the information available through the published, prior work of contemporary authors.
The references used are legal and organizational documents, along with secondary sources such as articles and essays, dealing primarily with lawyer skills, responsibility, ethics and roles in the practice of the profession. It also includes consultative work that discusses guidelines and resources dealing with ethical and moral issues in criminal procedures. It involves an integration of the different published references and other available sources. The issue that deals with the view of the population can be presented through the gathering of information related to the issue. The method that was utilized in the process is qualitative research.
An investigation on the research that was undertaken included the issues, concepts and notions of professional secrecy. The research involved data gathering on the printed and published works on the topic. Description, data gathering of pertinent information and analysis are included in the process undertaken. The analysis of the data gathered that are essential to the topic is done mainly through the process of inductive reasoning.
The concepts that were gathered were recorded, measured, organized and analysed to be able to come up with the output from published references. Specifically, the research focused on the ethical considerations of professional secrecy.
In any sociological process that is being investigated, there are always diverging outlooks and points of view that are considered. In the case of the issue of professional secrecy, the intersection of the legal (the law) and the social (civil rights) facets of legal privilege bring forth many factors to consider when justifying the need to break legal privilege and for disclosure.
The focus of the review of literature was to determine the steps that are involved in providing the basis for the need of disclosure of information received during legal consultation. The provisions in the law for breaching professional duty of secrecy and some recommendations for change were discussed based on an analysis of past cases that illustrated the deficiencies of the current provisions. The ethical and moral responsibility of lawyers was highlighted as the definitive guide to decisions concerning disclosure. Furthermore, the role of lawyers on moral issues in relation to their clients was briefly discussed.
The Ethics of Law
Professional ethics and moral conduct for lawyers is as important as their license to practice from a client’s point of view. While mistrust is instinctive for clients, especially for those who have much to hide, lawyers can do much to allay such misgivings by the having a reputation for professionalism.
However, there will be cases in which circumstances may dictate a breach in professional duty of secrecy and how lawyers handle the situation will determine whether the disclosure is considered ethical or not. It will also determine to what degree the lawyer will become liable to sanctions.
There are two types of profession on the basis of the information that are upheld and the professional code of ethics regarding confidentiality. One of the groups of profession is involved in safeguarding information related to the clients and other parties that are involved while another group are allowed to give out information. One example that can be cited that belongs to the latter is any profession related to any forms of media.
The said group is allowed to give information on the basis of the right to express their outlook and to be able to address the needs of the population related to current events and the present state of the society and the different dynamics in the international community. On the other hand, the other group of professions is into the support of the confidentiality of the information that occurs within the professional processes. One of the reasons for the said practice is to be able to protect the rights of the clients to privacy.
Unlike the obligation of the media to bring the truth to the masses, professions such as physicians and other medical practitioners are prohibited by law to disclose such information. In terms of the said confidentiality in profession, law is comparable to medicine, the disclosure of pertinent information between the lawyer and the client is a detrimental issue. The said issue sets pressure in the decision-making process of the different professions.
In this case, it can be perceived that for the professions that are bound by confidentiality privileges, information that is divulged during a consultation cannot be disclosed except on the basis of special and carefully defined cases.
In the determination of the ethical practice of law, one of the most important concepts that were achieved is the outlook regarding the law. Law was defined generally as a field and even a concept that protects the right of the people. Upon the said point of view it can be considered that law is largely interconnected and interacting with ethics.
Defining the ethics of law means defining the responsibility of the lawyer to uphold truth, justice and the rights of the people involved; thus, in situations where the line between what is right and what is legal becomes blurred that the professionalism and the ethical priority of a lawyer is challenged.
The Disclosure of the Information
Upon the determination of the ethical consideration of the practice of law, the disclosure of the information given by the clients to the lawyers is an issue that must be considered with great deliberation. Careless and ill-judged use of such information renders the lawyer open to censure for professional misconduct and unethical behaviour as well as jeopardises the solemnity of the proceedings.
An important subdivision in professional secrecy focuses on criminal law and prosecution. The rules of disclosure are frequently undertaken by the circumstances presented in the said field. One of the important rules is the disclosure of information in cases wherein the information that are included can subject the parties involved to punishment.
Based on the said rule, disclosure of evidence and information and the event of the presentation can be considered as an essential factor in the defence, or prosecution, of criminal cases. This is included in the areas wherein the revelation of the information can be deemed necessary to be able to achieve the objectives of the law. In cases where vital information was not found or disclosed at a propitious time and judgement was rendered without the benefit of this information, the issue for the wronged party is one appeal.
The client is given an opportunity to appeal the decision in these cases wherein the required data that can favour their side was not found and presented. This would involve a considerable amount of time and expense to arrange. However, failure to redress such an oversight would result in the failure of the attainment of justice and unbiased trial due to the constraints of time in the gathering information required in the pursuit of justice.
A. Proposal on the Disclosure Procedure
Due to the need for the disclosure of information in the some instances at a court trial and other related cases and the absence of the related guidelines, the concern for the amendment and the action to be able to establish the rules of undertaking in the said issue comes into focus.
One of the primary actions included in the plan of amendment is the need for a clear definition of the information that is considered as essential or material to the case, i.e., the time and date of the execution of the criminal act. This provides a direction for investigators and other gatherers of evidence or information that would facilitate a speedy yet fair trial. It would prevent wasted resources in shifting through superfluous data that would have no bearing on the successful conclusion of the case.
Another is the setting up of the period of time required for presentation of the said data. The schedule that is considered essential to the setting up of plans of disclosure in needed to be set by the authorities and presented and agreed upon by the parties involved. This prevents unnecessary delays in the production of such information as dictated by the case in question, and ensures timely processing of such data as needed.
Another important factor is the seeking out of the favourable information. If the information is not presented voluntarily, the ultimate result of the particular case can be jeopardized, thus, an increased effort to seek such information is necessary. These are included in the proposed disclosure procedures in criminal cases.
B. The Preliminaries in Disclosure of Information in Criminal Cases
The implementation of the laws is aimed to provide every member of society with access to justice. It is the main objective in the establishment of the guidelines in the disclosure of information in criminal cases. Although the said action can only be considered a single area in the trial of cases, it is one of the manifestations of a fair trial and a road to the achievement of justice.
An example of the said action is within the constraints of the Criminal Procedure and Investigations Act of 1996, which is mainly focused on the impartial disclosure of information. In the process, the sources of the said information are needed to be protected. The said action is also guided by the Act, thus, ensuring the safety of the information and the prevention of degradation of the value of the gathered evidence.
To establish the governing guidelines on the disclosure of information, the conditions and the needs for the process is discussed.
Conditions in Disclosure of Information
In the event of disclosure of information there are different conditions that are undertaken to be able to achieve the related goals. Included in the considerations are the different groups and agencies that involved. Along with them are the legal entries that will serve as guidelines for the action of disclosure of information.
A. The Personnel and Agencies
There are different groups of personnel involved in the disclosure process. Each group that is included has definite functions to be undertaken which contribute to the success of the trial process and even the disclosure.
One group of personnel includes the investigators (such as forensics) and the officers (the police or other law enforcement personnel) that are in charge of the disclosure process. They are responsible for the gathering, processing and safekeeping of the information that is considered material to the case, referred to as the chain of evidence. In cases wherein evidence exists that need to be presented at the trial, it is the responsibility of these officers to draw attention to the data available to them as a result of their investigative endeavours.
Another group involved in the disclosure process are the prosecutors that analyze the information and the evidence presented to them as the basis for the arguments in the case. The prosecutors present the information in a clear and concise way to the court as it relates to the facts of the case before them and attempts to make use of the information to influence the decisions of the court. Mainly the job of the prosecutors is to provide a fair presentation of the disclosure.
The prosecution counsel and solicitor advocates comprise another group. They are responsible for the fair treatment of the information that is presented along with help of the solicitor advocates. Another requirement for the presentation of the information is the group of defence practitioners that responsible for the disclosure process itself by focusing on the actions that are needed to be undertaken.
B. The Conditions of the Process of Disclosure
There are different conditions in the disclosure of information. This information includes those data that could potentially alter the decisions regarding the case. One of the conditions is the presence of information that can change the decision regarding the case. Another is the probability of having another party that is considered to be responsible for the event.
When there are cases wherein there is a minor inconsistency with the data presented, the disclosure of another set of information can be considered important for the result of the case. Another case that can also alter the results of the case by targeting the credibility of the statements that are made by the opposite party through the person or by presenting data that are undermining the reliability of the previously presented data.
In cases, on the other hand, wherein there can be sighted an insufficiency of the presented case and the presentation is lacking there is a case that can be termed as a secondary disclosure. The said phase can be considered as a chance to be able to look at the case in another point of view.
The disclosure of the data that are presented by the clients to the lawyers can be considered as material to the case. Although this is the case, the disclosure of the said information is based on the judgement of the participating parties in the judicial process. Based on the perspective of the law and the public, the disclosure of information that is needed for the case is important. This is on the basis of both the right of the public to know and the fair trial of the case. The application of such guidelines is also important due to rules transcending such application.
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