Confidentiality v. Duty of Candor: The Ethical Dilemma in Lawyering
|關鍵字:||保密義務;真實義務;當事人虛偽陳述;提交虛假證據;訴訟詐欺;confidentiality;duty of candor;client perjury;client fraud|
The conflicting obligations of client confidentiality and candor to the court stems from the two distinct roles lawyers play during representation of a defendant. A lawyers as an advocate to his client, has to act in the sole interest of his client and provide him with zealous and loyal advocacy. An attorney can best serve his client and represents client interests only with full and frank disclosure between client and attorney; and freedom from fear of disclosure by the attorney fosters full disclosure of the client. Thus, the ethical rules forbid lawyers to disclose information relating the representation of a client unless the client gives informed consent or required by certain situations. However, lawyers as officer of the court, have specially duties to avoid conduct that undermines the integrity of the adjudication process, thus, the ethical rules also requires lawyers to take reasonable remedial measures if the lawyers comes to know that a client who is testify in trial or in a deposition has offered evidence that is false. The conflicting obligations of client confidentiality and duty of candor to the court creates an ethical dilemma for lawyers in situations like client perjury. When a lawyer comes to know his client intends to perjure himself, he has to choose from keeping the secret for his client and present his client’s testimony at trial in the ordinary way or reveal the incriminating information to the court. The client perjury controversy has been widely disputed in the U.S. Some suggested that client perjury rules, which requires lawyer to deliberately elicit incriminating information from the client without warning the client of the consequences in advance, violates the client's Fifth and Sixth Amendment rights, while others believed that only good faith communications can be protected, and the counsel's duty of loyalty to, and advocacy of, the defendant's cause is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. In order to cope with the distressing ethical dilemma in client perjury, many remedial measures have been developed in the U.S. These measures are taken by lawyers to ensure the jury will not be misled by false evidence, and at the same time, protect the client from presumption of prejudice. Through empirical studies, judges, prosecutors and lawyers in Taiwan are interviewed in order to find out how practitioners carry out their obligations of client confidentiality and duty of candor and to further develop remedial measures compatible to the legal system of Taiwan. The results of empirical study demonstrate that the lawyers’ duty of candor in Taiwan is very low. Technically speaking, as long as the lawyer does not commit subornation of perjury or unlawfully destroying or concealing documents which constitute criminal offence, the lawyer would be deemed to have fulfilled his duty of candor to the court. The lawyer has no obligation to report criminal or fraudulent conduct related to the proceeding. Yet, this extremely low duty of candor is not enough to rectify the proceeding undermining-behaviors, such as the recent judicial scandal of judges taking bribes from criminal defendants. Finally, through combining the theories and empirical research results, this thesis proposes that the ethical rules in Taiwan need to be revised to establish higher duty of candor on lawyers, requiring them to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, as a way to secure the legitimacy and integrity of the adjudicative process.
|Appears in Collections:||Thesis|
Files in This Item:
If it is a zip file, please download the file and unzip it, then open index.html in a browser to view the full text content.