“ Lawyers are always experiencing challenging cases with ethical issues, which could jeopardize the solicitor’s career and disorients their client’s arrangement, if not given a keen moral scrutiny ”1. Approaching an ethical issue from all angles could promote the arrival of the best model of action when determining the case concerning an ethical issue. With a full consideration of an ethical issue, the solicitor stands a better chance of explaining the issue to an investigator the reason for adopting a particular course of action. Enough knowledge from the client should be gathered to ensure the course of action decided on covers all the needs of the client. It is unethical to settle on a course of action in a case dealing with ethical issues without a well-researched reason. To avoid the complications of dealing with subjects involving ethical issues, the Queens land law society has given an outline to guide solicitors in proper consideration as illustrated below. The case to be addressed concerns a parking Bonanza as it seeks to get its debtors to pay their dues. For the debt to be serviced, they have the sort of my help as a private practice solicitor at NSW, and I need to determine the course of action.
What is the ethical issue concerning you?
The ethical issue concerning me in this context is to represent a private company in a case against its defaulting debtors. The parking Bonanza operates its parking services at designated places like shopping complexes like Malls and retail outlets. The company wants me to represent them in the court of law to compel the defaulters to pay them in the form of liquidated damages. The private company other hand have not been applying the legally standardized measures for collecting revenues as they offer their services. They offer the terms of the contract, and I realize they will tie my services to their advantage. The private company has been mal-practicing, and although their actions may be explained by legal limits, they risk the adjournment of their business, and this will jeopardize my client and render my practice not reliable and incompetent in legal battles. Now the ethical issue leads to an ethical dilemma, where I am supposed to take up the contract or not to sign for it.
What options can you identify?
As an NSW solicitor, I am expected to “display maximum competence and diligence when handling client’s cases ”2. For this reason, a solicitor is expected not to share a personal interest in the client for the case being presented. The best option is to sort the interest or not choose to display. According to NSW statement of ethics, a solicitor is expected to serve the interests of justice as the core motivation for legal practice. In this context, the parking Bonanza has presented their case and terms of contract with an aspect of retainer exclusive. In a retainer exclusive contract, the lawyer is tied to the client’s contract and may not benefit any monetary agreement if they fail to deliver. In this context, the parking Bonanza is introducing the aspect for it has realized that from my service to their firm I might get a lot of revenues and so retainer exclusive is to keep me in check, to ensure they get their liquidated damages. In these terms I suspect the Bonanza lacks trust and confidence in my service, and for that reason my interest are not catered for. I would alternatively not sign to the deal, or they change the terms to make them flexible in case the case may not be successful. The Bonanza has not been offering their services as stipulated in the law. For instance, they have been fining motorists, which is illegal. For this reason, an investigator mandated by the court may scrutinize the Bonanza service providing system and once faults have been identified it will face legal punishment.
What are the relevant interests in this situation?
In this step, the solicitor gets the opportunity to consider the relevant interests in the case and seek guidance on how to decide on it. “The solicitor is the protector of justice as stipulated the NSW ethical statement and for this reason, should have sufficient knowledge and guidance so as not violate their core mandate ”3. The relevant interest in question during representation should not be found to be outside the legal limits, and if outside legal limits there should be a professional advice to guide before a course of action is chosen. The parking Bonanza, interest is to recover their liquidated damages. They have been using means that are not set legally to ensure their clients owe them and that when they charge them in accumulated fines, they will get more revenue. It like the Bonanza is the ones inducing the debts and claiming them later. My duty is to represent the companies interests as my duty as a solicitor. To represent the Bonanza in a legal battle, the private corporation has presented the binding contract with not favorable outcome; I will be the potential loser if the deal does not materialize. I decided to seek deeper insight into many issues are ethical, and there is a possibility of impropriety in the course that the case is following. Under the NSW, the solicitors rules and regulations aspects of ethics are outlined, in an ethics education session that is offered at the CPD education. The guidance ethics committee at NSW will help in guiding for choosing the best course of action.
Guidance can you derive from sources of authority
In this step, a consideration of broader ethical aspect is taken into account. At this stage, the misconduct as a legal practitioner is not enough for consideration but also the effect of a lawyers conduct. The effects that a solicitors desired course of action may have to other people not related to the case. Personal consideration whether the mode of action was moral enough as per personal standards. The parking Bonanza has not been conducting themselves according to the legal provisions and is now seeking legal help to recover their lost revenue. From my angle, their conduct has not been as per the law and so doesn’t deserve to charge any payment defaulters any fine. The Bonanza has explained their means of getting more revenue, but the procedure is illegal. They have offered the contract, and the terms are not favorable and may cause a collision between my practice and my client. According to the legal responsibilities for solicitors as stated by NSW, the lawyer should “ present their client within honest limits”4. In this context, I will not be honest by representing the bonanza. NSW also states that where the client and the lawyer share interest, the solicitor should not take the case. I would decline the case until they revise their terms of the contractual agreement in their case representation. I would also ask the Bonanza to take time and consider their terms of operation before they opt for a legal battle.
Broader ethical considerations to consider
This step seeks to exhaust all the ethical concerns that may have been overlooked in the previous process conduct scrutiny. Without obtaining insight of all the ethical, issues from various perspectives, one is not capable of being objective in the process of determining the appropriate course of action. To achieve my goal I intended to consult parties who are totally not aware of the case that I am supposed to deliberate upon. I would seek fellow solicitors at NSW whom I presume may be more experienced than I am. NSW had senior legal advisers and experts I would sort for their opinion to help me realize another ethical perspective in my case that I would have forgotten. With the proper guidance for experts, I would be ready for the anticipated outcome and know how to design my course of action. I would use the same knowledge in the court process just in case it will be heard in the court of law.
Whom you have consulted or discussed this issue with And the advice they offered
From my consultations with a fellow solicitor with more experience in legal matters and senior legal experts at NSW, I got the following advice. If I agreed to sign a retainer, then I don’t perform as expected, and the client demands a refund of the retainer if I try to use my solicitor influence the situation will be considered a breach of contract. Breaching a retainer, would mean that my practice is unethical and that my conduct is unprofessional. In cases of unprofessionalism, a solicitor stands to lose their license to practice. The solicitor may face a disciplinary action from the body they work under, and in case one works under NSW they may have their names stricken out of the solicitors roll. I was advised that the client may land me in legal problems associated with representation of a dishonest client. As the custodian of justice, I am expected to at any time say the truth. The client is scheming on extorting money from its clients. They have applied the actions elsewhere in Australian and it has worked for them, and the same reason they want to use the bonanza in collecting the fines, which clients are not aware of their crime. Such a firm should first comply with legal requirements in running their business, before seeking legal support in following their defaulters.
The likely consequences following opinions guiding course of action
Following the advice that I have acquired, I would professionally decline the contract until the terms are revised. The client has legal obligations that the Bonanza has not complied to as legally stipulated. It would be a risk of my career and work. I have decided to advise the client on the steps to ensure they are legally bounded. They should start by placing tickets at the entrance. They should stop finding the motorists. Once they met the necessary legal requirements and not binding me to the contract with the retainer, I will offer my services without fear of violating ethics protected by the law. I would save my career and save the parking Bonanza business in case of a request for scrutiny of the business by the court to determine how ethical they have been in offering the relevant services that they are offering.
Best course of action in this case
The preferred course of action will involve declining the contract signing and not represent the client in the court of law. With the advice from the NSW fellow solicitors and legal experts, I would confidently take the offer on my terms. I will not be willing to risk my career and, for this reason, I will choose to advise the client to reconsider their ideas about taking its clients to the law and yet they have not kept the same laws. They will risk closure on the realization that they are not legally compliant as expected.
Summarizing the reasons for deciding on this course of action?
The reason for taking this course of action is marely for the purpose of keeping up with my working ethics. I don’t want to represent the client in a dishonest manner. I would not like to breach a retainer for I have perceived a probability of the debtors being informed and upon presentation in court, the firm may be at a risk of closure and as a lawyer I would have failed my client. I would like to display professionalism in my service delivery. I am interested in keeping the interests of justice and for that reason I would represent the Bonanza once they are fully legally compliant.