Accountability: The price for not being responsible[1]

Accountability is the key for law as a profession

Defining the rules and principles of the professional accountability of lawyers is of great importance for the functioning of the entire legal system. Each lawyer has enormous responsibility for the administration of justice. A lawyer’s duty is not exhausted in representing the party in accordance with the rules of the profession and in the best interests of the party, but lawyers are also contributors to institutions in the realization of such justice in the entire society.

That role is best exercised if there is a high degree of public confidence in the professionalism of members of this profession. In order to achieve that reputation lawyers must have through and deep understandings of their roles, but moral values too. They have to understand the meaning of moral implication of their conduct both as individuals and as a community.

Lawyers should “accept” personal responsibility for the moral consequences of their professional action. If lawyers acknowledge and recognize their moral accountability, their personal and communal responsibility for justice will become integral to their practice.

All information given to the lawyer is confidential and all communications are privileged. He/she is not allowed, in any case, to reveal such information to any party without client’s consent. A lawyer must always act in the best interest of a client.

It would be unethical for a lawyer to act for the client when his/her own personal interest conflicts with it.[2] For instance, if a lawyer had knowledge of confidential information about a former client, he/she should not act against the former client in any matter where that specific information could be used to create an unfair advantage for their new client.

Lawyers are not permitted to benefit from their relationship with their client, other than the usual payment for the legal services they have provided. This means that a lawyer must not advise their clients to  become involved in their business interests, or the interests of their associates (business partners, friends or relatives).

One of the presumptions for the accountability is the integrated rules of professional responsibility, in particular, the question of the legal basis of accountability. The duty to act professionally creates an obligation for the lawyers, which is considered as a duty to carry out the work in accordance with the rules of the profession and with the professional career. Even though professional accountability is most of the times subjective, a lawyer may be accountable for damages if the rules of professional or professional ethics have been violated. For instance, if a lawyer is negligent or acting unethically, the Bar Assocation will then take over the matter and investigate if the lawyer has committed a misconduct. The Bar Association has the full discretion to fine, suspend, disbar or sue the lawyer as they deem fit.

The lawyer is expected to respect the rules of the profession and show increased attention in relation to his function of good host. He/she should provide legal assistance conscientiously in accordance with the Constitution,[3] applicable laws, Code of Lawyers Conduct and Ethical principles.[4] Because the behaviour of lawyers is defined as an extremely attentive and at the same time well-educated and highly competent act, he/she must ensure that it is in line with the social function of their professional services and rightfully be in the correctness of their work.

Accountability and Code of Conduct

Negligence, failure to comply, lack of competence

An accountable lawyer is more than a responsible lawyer. In fulfilling his professional responsibilities, he/she assumes various roles that require the performance of many difficult tasks and within that framework, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.[5]

When the most important principles and values upon the legal profession rests are breached then a lawyer might be held accountable for his actions. The term accountability is related to responsibility but seen from the perspective of oversight.[6]

A lawyer may be responsible, for instance, for ensuring that a motion meets all the requirements and in case the motion is not accepted, there may or may not be some consequences. In this regard, an accountable lawyer is ultimately being answerable for its own moves and actions and finally is being evaluated on its performance or behaviour related to something for which he/she is responsible.

The lawyer is under a professional duty to carry out clients matter with a reasonable care and skill which means he/she can be held accountable for issues ranging from the smallest error to failing to file a crucial document for trial. If fails to obey the rules and ethics, the lawyer gets the image of being incompetent to carry out its tasks and duties and is undesirable to both a client and the system. For instance, a lawyer must be reasonably certain that he/she is able to appear and represent the clients for the matter they engage him/her for. He/she is not allowed to accept the case unless he/she is certain. Client can hold him/her accountable if later find out that he/she has no means or resources to reasonably carry out their  matter or represent them  in trial.

Representation of unpopular clients requires lawyers to be able to tell themselves and the public that lawyers have no moral responsibility for their conduct. Indeed, to facilitate representation of ”people whose cause is controversial or the subject of popular disapproval“, lawyer should tell that such representation does not constitute an endorsement of the client’s views or activities.

A lawyer seeks to preserve his professional independence, ensure fairness, and serve his clients in the best way possible. In ensuring that the lawyer fulfils its duty in accordance with the main rules of the conduct. The lawyer should consistently protect his/her independence and not allow any interference in his/her work.[7] The effectiveness and quality of such role lies in the fact that he/she will unconditionally and completely preserve independence from any external influence in providing expert opinions, interpretations and conduct of proceedings in accordance with the law.

However, some lawyers may fall under the “influence” due to some reasons or interests and act for the benefits of themselves or others. For instance, a lawyer may be politically or otherwise influenced to prolong some of his/her activities for the client because that activities are not for the benefit or interests of the influencer(s).

If a lawyer is negligent or act unethically or has committed a misconduct, he/she can be put under investigation by relevant body, which can be the Bar Council’s Disciplinary Board or the court.[8] The specifics of the accountability in the context of determining the legal basis for lawyer’s accountability in general, are established by the rules of conduct and the Code of Lawyers.

In any event, it is the client’s right to change the lawyer. If the client notice that the lawyer is under the “influence”, but cannot prove it, client is generally free to change the lawyer at any time as long as the client inform the original lawyer of that decision, and pay all the outstanding fees.

Conclusion

It is of great importance to protect and promote lawyer’s accountability. It is not just important for the particular lawyer in question, but to the entire legal profession in general, because lawyers reflect professionals with the high reputation amongst civil society and other professionals too. Lawyers can be a kind of a model role for other professions and professionals due to the specifics of the profession itself.

The legal profession is largely self-regulated, which makes it difficult for bad lawyers to be held accountable to their clients. Lawyers are often exempt from consumer fraud laws and other protections that apply to every other provider of consumer services.[9]

Lawyers claim that they do not need to be a subject to such regulations because they are held accountable by various rules governing their conduct. While there are rules of professional conduct that, for example, prohibit lawyers from making false or misleading statements or control how lawyers may charge fees, such rules are often far less stringent than similar consumer protection laws.[10]

 

According to the practice, it can occur that there are a few disciplinary complaints made against lawyers resulting in no formal charges. Even when charges are filed, disciplinary proceedings are often conducted privately and in the rare instances when lawyers were subjected to formal sanction, nearly half receive only the warnings.[11] There are very few or no criminal charges against lawyers holding them accountable for some of their actions. In the event that occur, the final result is rejection of such cases due to justified reasons. “When you run naked it means you’re immune-no one’s going to sue you“.[12]

Lawyers should be educated to their moral responsibility and encouraged as individuals and as members of social community to explore how they work contributes to the social good. They should be practicing the law in the interest of justice. The use of the ethical rules to educate lawyers to their moral responsibility falls squarely within the purposes of the ethics codes.

Lawyers must continue to be additionally educated, constantly, either by formal education centres, which is obligation by employers according to the rules, or upon own initiative and interests in particular work area.

Bibliography

  • Hofstra University, School of Law, Legal Studies Research Paper Series no. 12-19, Law as a Profession: Examining the Role of Accountability
  • Code of Attorneys Ethics of Federation of Bosnia and Herzegovina issued by Bar Association of Federation Bosnia and Herzegovina on 17 September 2005;
  • Code of Attorneys Ethics of Republic of Srpska issued by Bar Association of Republic of Srpska
  • Responsive Law, The Consumers Voice in the Legal System, Washington DC
  • Constitution of Bosnia and Herzegovina (Annex IV of the General Framework Agreement for Peace in Bosnia and Herzegovina), dated 14 December 1995.
  • Thomas Bivins, Responsibility and Accountability, Page 21.

 

 

[1] Article I, Item 16 of the Code of Attorney’s Ethics of Federation of Bosnia and Herzegovina issued by Bar Association of Federation Bosnia and Herzegovina on 17 September 2005, and Article 1, para. 6 of the Code of Attorney’s Ethics of Republic of Srpska issued by Bar Association of Republic of Srpska  on 11 and 12 March 2005.

[2]Attorney’s Secret: Code of Attorney’s Ethics of Federation of Bosnia and Herzegovina issued by Bar Association of Federation Bosnia and Herzegovina on 17 September 2005 and Code of Attorney’s Ethics of Republic of Srpska issued by Bar Association of Republic of Srpska on 11 and 12 March 2005; Thomas Bivins, Responsibility and Accountability, Page 38.

[3]Constitution of Bosnia and Herzegovina (Annex IV of the General Framework Agreement for Peace in Bosnia and Herzegovina), dated 14 December 1995.

[4]Code of Attorney’s Ethics of Federation of Bosnia and Herzegovina issued by Bar Association of Federation Bosnia and Herzegovina on 17 September 2005 and Code of Attorney’s Ethics of Republic of Srpska issued by Bar Association of Republic of Srpska on 11 and 12 March 2005.

[5]Code of Attorney’s Ethics of Federation of Bosnia and Herzegovina issued by Bar Association of Federation Bosnia and Herzegovina on 17 September 2005 and Code of Attorney’s Ethics of Republic of Srpska  issued by Bar Association of Republic of Srpska  on 11 and 12 March 2005.

[6]Thomas Bivins, Responsibility and Accountability, Page 21.

[7]Hofstra University, School of Law, Legal Studies Research Paper Series no. 12-19, Law as a Profession: Examining the Role of Accountability

[8]Article I, Item 16 of the Code of Attorney’s Ethics of Federation of Bosnia and Herzegovina issued by Bar Association of Federation Bosnia and Herzegovina on 17 September 2005; Article 1, Paragraph 6 of the Code of Attorney’s Ethics of Republic of Srpska issued by Bar Association of Republic of Srpska  on 11 and 12 March 2005

[9]Responsive Law, The Consumer’s Voice in the Legal System, Washington DC

[10]Responsive Law, The Consumer’s Voice in the Legal System, Washington DC

[11]Responsive Law, The Consumer’s Voice in the Legal System, Washington DC

[12] Law as a Profession, Examining the Role of Accountability, Susan Saab Fortney, Page 199.