Several ethical provisions that could be applied in the legal profession are available. Courts normally divide the obligations into duties that clients and the courts are owed. For this reason, breaches in the ethical obligations are likely to attract civil proceedings by a client, for instance in actions involving the breach of confidence. Conversely, the breaches might provide ground for disciplinary proceedings existing under legislations applicable to legal practice. However, by taking the different policy and legal changes into account, it is possible to determine that courts are moving from implementing more punitive to treatment approaches. For this reason, the use of forensic psychology during sentencing is seemingly a reasonable approach that courts should find appropriate.
Apart from the legal principles that professionals should follow when practicing law, legal professionals have to maintain ethical obligations, which means that they should not breach the obligations of their clients since it would be grounds for the implementation of the disciplinary action. This reasoning calls for the questioning of what the expectations are concerning the consent of the client, whether the law can compel a professional to disclose, or the determination of whether the interest of the public requires disclosure. These questions point towards the idea that the solicitor-client relationship is based on legal professional privilege as well as confidentiality. For this reason, a legal practitioner is obligated not to disclose confidential information acquired when the client is engaging with the legal practitioner. The legal professional privilege protects the documents or materials from disclosure to another party without the consent of the defendant (Martyn & Fox, 2017). The protection also is provided for information from being subpoenaed or used as evidence in court.
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The Ethical Provisions related to the Concept of the Confidentiality of the Court
According to Simon (2017), confidentiality is the foundational principle of legal ethics. Lawyers that get information during the process of representing a client should maintain secrecy unless the client consents to disclosure. Lawyers are not the only people that are aware of other people’s secrets. Regardless of the idea that people’s friends, relatives, among other people might have information that they can keep confidential, they have a different moral as ethical sense concerning disclosing confidential information. Even though non-lawyers can disclose confidential information voluntarily, they are subject to subpoena and can face criminal or civil penalties if they refuse (Martyn & Fox, 2017). However, the case is different for attorneys since they are protected from compelled disclosure as they receive protection from the attorney-client privilege.
In spite of the privileges they enjoy, confidentiality is essential legal ethics since it is vital for ensuring that attorneys and they clients can communicate freely and honestly (Martyn & Fox, 2017). However, this provision can be regarded as a standard justification for the attorney-client privilege, even though it can be considered as a baseless justification of the same. Regardless of this provision, honest and frank communication between a client and an attorney is encouraged. The information received by the client will ensure that the legal professional work towards engaging in the best defense possible to win the case. According to Saltzburg (2016), the attorney-client privilege solved the problem of testifying and providing negative information since the client might risk disclosure. However, the privilege reorganized the relationship clients had with their attorneys since they would no longer be in a position of risking disclosure.
In spite of the need to protect themselves from risking disclosure, one of the questions under consideration relates to the expectations of a client’s consent. The principle underlying the relationship between the lawyer and the client is that the lawyers are prohibited from revealing the oral or written information got from the client without their consent. This prohibition is essential for maintaining the client confidences. However, it is important to take note of the fact that communication between a lawyer and his or her client should be made in a reasonable context for the information to remain confidential (Simon, 2017). In this case, a defendant that speaks loudly and other people overhear the conversation does not have a reasonable expectation of privacy, which means that the client waives the privilege. They risk losing confidentiality by dishonoring the expectation of having a private conversation.
The consent of a client can also be compromised when he or she allows other people external to the legal team representing him or her to be part of the communication process. When a client invites other people such as their relatives when consulting with lawyers, they lose their right to confidentiality (Simon, 2017). In such cases, the situation might inhibit the lawyer from following the rules of evidence that are inclusive of the inhibition to testify about the statements made by the client. These statements point out to the conclusion that the privilege is the clients and lawyers are prevented from forfeiting this privilege. Conversely, the privilege will still be effective even after the end of the lawyer-client relationship unless some exceptions are in place (United States v. White 970 F.2d 328 (7 th Cir. 1992). This means that a superstitious recording of the consultation process cannot be admissible in court.
The other question being considered relates to whether the law can compel a professional to disclose information provided by a client. According to Dobbins (2008), every jurisdiction in the United States recognizes the attorney-client privilege. Dobbins (2008) further indicates that the different jurisdictions implement different privilege rules, for instance when the federal claims work in tandem with state courts or when the state claims can be attached to the federal questioning claims within federal courts. These provisions make it difficult to determine the privilege rules that can apply to litigations in future, which is an indication that an attorney can find it challenging to ensure that the privilege will protect all the communication with the client.
The foundation of this issue is based on the idea that common law and the federal and state regulations of evidence are primarily responsible for governing the attorney-client privilege (Saltzburg, 2016). Conversely, the attorney-client privilege is yet to be recognized as a right protected by the constitution. This situation does not make it certain that every jurisdiction is likely to protect this privilege. For this reason, attorneys and clients cannot depend on a given minimum level of protection since none exists (Dobbins, 2008). The protections they rely on only relate to the context of their communication, including the ability of the attorney to complement his or her client’s legal advice. Instead, they rely on constitutionally provided protections based on the Fourth Amendment. The protections dictate that attorney-client communication resonates with the right to privacy, which is a reasonable motive for the extension of this protection by the courts.
According to Martyn and Fox (2017), the third issue relates to whether the interest of the public might require disclosure. One of the ethical duties of the court is to ensure that the public remains confident with the justice system. Public confidence can be advanced by using expert psychological testimony, which might be one way through which to ensure a safe, fair, and humane justice system. When forensic psychologists work together with attorneys, they have to face a considerable number of ethical questions, considering the fundamental interest being the maintenance of public confidence. Questions that might come up when attorneys work with forensic experts might be systematic, whereas others can be answered only professionally, while others might not address ethical questions or determine the other party’s professional responsibility. Regardless of the questions that both the legal and psychological professionals have to address, ignoring them might not improve public perception regarding the need to improve the manner in which the justice system treats people.
In the light of the identified concerns, there is a possibility that ethical questions should focus on upholding the diagnosis and treatment approach rather than the punitive method when delivering justice. For instance, Chezum (2016) provides that when using the treatment method for substance-using offenders, it would be necessary to consider the quality of the treatment process and the statistical outcomes achieved regarding reducing repeat offenders. The example provided could be one of the elements to consider when using the contributions from psychology in understanding the workings of the judicial system. The consideration focuses on the application of psychology to the legal system, which would not only be an ethical way of working with officers concerned, but will also strive for honesty, truthfulness, and the achievement of accuracy when dealing with confidential matters. The promotion of public interest to enhance accuracy does rest on not only the use of attorney-client privilege, but also the enhancement of the reliability of the judicial system.
Conclusion
As determined, the preservation of the attorney general privilege is the foundation of ethical practice. Based on the research conducted, the responsibility of protecting the privilege rests on the client since he or she should protect the communication with the attorneys to ensure that they do not lose their right to confidentiality. In this light, the consultation process should take place in private locations where strangers cannot overhear their conversations. Conversely, the client should avoid bringing people that are not part of the attorney-client relationship into the consultation process. The need to take such precautions would be to ensure that the D.A does not ask the stranger or the defendant for information about their meetings. However, the law might compel lawyers to disclose some of the information that might have been discussed, depending on the protections offered by the state and federal courts. The other interesting finding from the study relates to the need to ensure that the public interests are observed through ensuring an honest, truthful, and accurate process. Since the attorney-client relationship already accounts for part of this provision, the need to use other methods such as treatment rather than punitive sentencing can assist in fulfilling public interest. A suggestion was using forensic scientists to work with lawyers to get the truth out of defendants and in the hope of reducing recidivism. When such a system works, the public interests might be improved. In addition to the discoveries, it is essential for clients to go over the scope of the lawyer-client privilege as well as their duty of confidentiality since protections differ between states as well as federal courts.
References
Chezum, L. (2016). Ethical challenges for psychology in the justice system . Retrieved from https://www.apadivisions.org/division-41/publications/newsletters/news/2016/02/legal.aspx
Dobbins, T. J. (2008). Great (and Reasonable) Expectations: Fourth Amendment Protection for Attorney-Client Communications. Seattle University Law Review, 32 (35), 35-82.
Martyn, S. R., & Fox, L. J. (2017). Traversing the Ethical Minefield: Problems, Law, and Professional Responsibility . Wolters Kluwer Law & Business.
Saltzburg, S. A. (2016). Attorney-Client Privilege and Common Interest. Criminal Justice , 31 (2), 47-50.
Simon, W. H. (2017). Attorney-Client Confidentiality: A Critical Analysis. Georgetown Journal of Legal Ethics, 30 , 447.
United States of America v. Daniel A. White and Judith A. White, 91-3429 36 Fed. R. Evid. Serv. 657 (United States Court of Appeals, Seventh Circuit 1992).
