Unauthorized Legal Practice - Essay Sample

Introduction

The cases of unauthorized practice of law are common in the world due to the frequent occurrence of legal challenges. The importance of ensuring there are no unauthorized legal practitioners is to reduce the errors committed by the ignorant people who practice legal proceedings without any training or experience (Steinhausen v. HomeServices of Nebraska, 2015). An example of such a case is the Florida Bar v. Fuentes which was decided in 1965. In this case, the Florida Bar filed a petition accusing Nicholas F. Fuentes with unauthorized practice of the law. He was accused of breaking the integration rule of the Florida Bar. The case involved several petitions filed before it and appointed a referee to receive and hear the evidence that was before the court. Honorable Paul D. Barns was given this role. One of the facts that came out was that the respondent was registered to practice law in Florida or in any other state and that he was an accountant and not even a stockbroker. He also admitted that he had prepared the articles of corporations for companies, he had also been involved in preparing Pre-incorporation Agreements and Subscriber Agreements, stockholders' agreements and stock certificates.

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The respondent had also participated in advising clients on the sale of the business and also prepared the necessary documents to facilitate the same. He had also participated in closing the sales on behalf of the clients and also prepared affidavits and notices of sale. He was also involved in the preparation of different transfer documents during the sale of properties. It is illegal to conduct legal procedures like preparing contracts for clients if one is not authorized to do so (Lathrup, Harden, & Hathaway, 2018). The court held that he had violated the law by practicing what he was not authorized to practice.

Confidentiality

Jaffee v. Redmond

Confidentiality is one of the main causes of ethical dilemmas in most professions. There are certain secrets that people should not disclose about their clients. For example, if one seeks medical attention from a specialist, their discussion about the diseases or conditions are protected by the law and the doctor or specialist cannot disclose them (Jacob, Decker, & Lugg, 2016). In the case of Jaffee v. Redmond, the respondent, Mary Lu Redmond, a police officer in Illinois, responded to a fight-in-progress call and found Ricky Allen chasing another person with a knife. She tried to make Allen surrender but she declined and so she shot him dead. When Allen's Estate filed a suit against Redmond, they sought to use some notes from a counseling session where Redmond had sought services from a counselor to analyze her. She objected this because it was against the law against her confidentiality rights.

The law states clearly that the patient-psychotherapist relationship is confidential and should not be disclosed to the public. The information that the therapists get from their clients is protected by the law and it cannot be used as evidence in court. In the case above, the court held that the use of the notes from the counseling session was a violation of the ethics law that protects the confidentiality of such an encounter (Sun & Wasser, 2017). The same is applied when a patient visits a doctor and it is illegal to disclose the information even for the purpose of accomplishing another court process. The law protects the data received willingly from a patient, a consultant or other form of clients who seek services from a specialist.

Conflicts of Interest-The Duty of Loyalty

Drabinsky v. KPMG

The cases of duty of loyalty and the conflicts of interest are common in businesses and other engagements and the law demands that loyalty and disclosure of information should be done within the law. Conflicts of interest occur when one person serves two people or client who have related and antagonizing interest (Criddle, 2016). In the case of Garth Drabinsky v. KPMG, an international accounting firm, the issue of conflict of interest and duty to loyalty was portrayed. It happened in 1998 when KPMG was hired by Livent Incorporated to conduct a thorough forensic investigation on the conduct of Drabinsky. Garth was a senior officer in this company and KPMG had been his personal accountants for over two decades. The plaintiff argued that having been his personal accountant for a long time, KPMG had adequate information about him and they also had a duty of loyalty that restricted them from investigating his conduct on behalf of their new client.

The case was decided in the courts that the plaintiff had a right to secure his confidentiality and that KPMG was breaking the law. Garth had been their client for a long time and they had gathered a lot of information about him. Livent was not a client to KPMG and had only been asked to conduct the investigations and Garth was the main target. The court reasoned that the relationship between the plaintiff and the respondent was beyond not disclosing the confidential information but it extended to a duty of loyalty and to act in good faith, not against the interest of the client (Hasnan & Hussain, 2015). The law requires the companies and individuals to avoid the conflict of interest and to maintain the duty of loyalty.

Advertising and Solicitation

Bates V. State Bar of Arizona (1977)

Ethical conducts are at the center of all professional proceedings and mostly in law. Legal practitioners are not allowed to advertise for their services via the media and they are required to maintain this as professional conduct. In the case of Bates V. State Bar of Arizona, the appellants were licensed legal practitioners and had a right to offer legal services. However, they placed an advertisement in the newspaper that explained their "legal clinic" and which explained their fees. The advertisement had specified the fees charged for different services and this concludes uncontested adoptions and divorces, change of name and personal bankruptcies. The court determined that they had violated the state's Supreme Court disciplinary rule that prohibits lawyers from advertising in any type of media. The court, in this case, ruled that the lawyers had misconduct and banned many other forms of solicitations (Moser & Freeman Jr, 2016). The ethical considerations, in this case, were that if allowed to use solicitation and advertisement, then cases of fraud and hucksterism would increase.

Professional ethics in law guides on the things that are likely to have negative impacts on the profession and the general public. In a contrasting view, the First Amendment grants people the rights to advertise and the rights of free speech. However, the use of solicitation and advertisements in law and in dental services is prohibited due to its final outcomes (Moser & Stevens, 2015). Such solicitation gives false confidence to the potential clients and makes them believe or get attracted to people who may not offer the right services. Fraud is also likely to happen and this reduces the professionalism of the practitioners.

Competence and Negligence

Martin F. D'Souza V. Mohd. Ishfaq

The competence and negligence of the professionals could lead to many adverse outcomes in many fields, and especially in the medical processes. An incompetent doctor is likely to offer the wrong services and this could lead to adverse outcomes and death. In the case of Martin F. D'Souza V. Mohd. Ishfaq, the patient, who was suffering from a chronic renal failure sought for medical services from Nanavati Hospital in Mumbai. H was treated and waited for a kidney transplant. However, he developed a severe fever and the doctor treated him with Amikacin injection for three days. One of the side effects of this treatment was that it led to deafness and he filed for compensation (Agrawal, 2016). The court decided that the doctor had an offense of professional negligence and was found liable. All professionals are expected to exercise all possible care and to ensure that all clients are not exposed to any possible negative outcomes.

In the case above, the doctor failed to consider the possible outcome s of using the medication. In his opinion, that was the only life-saving option that he had and he had to choose between letting the patient die or using the available options. In such cases, there are certain principles used to make the final conclusions. The principles are based on the differences between the knowledge of the doctors and the views of the judges who have no medical training (Rayamane & Chandrashekhar, 2015). The general understanding of the law is that any level of negligence is fatal to the clients and should be avoided. The courts used this reasoning to make the conclusions in the case. The same law is applied in other professions to protect the clients.

References

Agrawal, A. (2016). Medical negligence: Indian legal perspective. Annals of Indian Academy of Neurology, 19(Suppl 1), S9. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109761/

Criddle, E. J. (2016). Liberty in Loyalty: A Republican Theory of Fiduciary Law. Tex. L. Rev., 95, 993.\

Hasnan, S., & Hussain, A. R. M. (2015). Factors associated with financial restatements: Evidence from Malaysia. Journal Pengurusan (UKM Journal of Management), 44. Retrieved from http://ejournals.ukm.my/pengurusan/article/view/11143

Jacob, S., Decker, D. M., & Lugg, E. T. (2016). Ethics and law for school psychologists. John Wiley & Sons.

Lathrup, C. L., Harden, H. B., & Hathaway, S. K. (2018). Unauthorized Practice of Law Committee-Unauthorized Practice of Law Committee. Wyoming Law Journal, 19(2), 152-152.

Moser, H. R., & Freeman Jr, G. L. (2016). An Exploratory Study of Significant Differences in the Consumer Attitude toward Advertising by Chiropractors in Four Southern States in 2016: An Empirical Analysis by Demographical Characteristics. Insights to a Changing World Journal, 2016(2).

Moser, H. R., & Stevens, R. E. (2015). An Empirical Analysis Of Ethical And Professional Issues In Dental Advertising: A Comparative Cross-Sectional Study. Mustang Journal Of Business And Ethics Volume 8 (Spring, 2015), 17.

Rayamane, A. P., & Chandrashekhar, T. N. (2015). The doctrine of Res Ipsa Loquitur-Application in medical negligence cases. JS India Medicoleg Assoc, 7, 15-9. Retrieved from https://www.researchgate.net/profile/Anand_Rayamane/publication/273771233_Doctrine_of_ ipsa-loquitur-Application-in-medical-negligence-cases.pdf

Steinhausen v. HomeServices of Nebraska, 857 N.W.2d 816, 289 Neb. 927 (2015).

Sun, A. Y., & Wasser, T. (2017). Confidentiality and Privilege. In Psychiatry and the Law (pp. 21-33). Springer, Cham.