On the Materialization of Lawyers' Contractual Responsibilities—Using "Ethical Regualation of Lawyers" as a Practical Means in Taiwan
Date Issued
2004
Date
2004
Author(s)
Yen, Hua-hsin
DOI
zh-TW
Abstract
In recent days, litigable disputes involving possible legal malpractice have been on the rise in Taiwan. In order to protect the clients, including potential-clients from losses caused by lawyers’ misconduct, it is truly necessary to establish lawyers’ professional liability, which also makes it more efficient for lawyers to anticipate and manage probable liability risks in practice. Therefore, ideas and context of this Thesis are mainly purposed to answer one question: “In what way could we efficiently prevent the clients from possible damages caused by lawyers’ malpractice?” Also, the scope of the Thesis is limited in “Lawyers’ Contractual Liability”, the core of lawyers’ professional liability.
First of all, Chapter II of this Thesis talks about the detailed content of lawyers’ contractual responsibilities”. Lawyers’ contractual liabilities cannot be well defined without “materialization of lawyers’ contractual responsibilities” as the basis. However, the function of “client autonomy” in attorney-client relationship is crippled due to professional knowledge and attorneys’ independence required in practice. Thus legislative statues and judicial decisions have become the more important sources of lawyers’ contractual responsibilities.
Through comparison of the related theoretical and practical development in foreign jurisdictions, including Germany, England and the United States, it proved that the scope and content of attorneys’ professional responsibilities are basically the same both in continental legal systems and case-law jurisdictions. In terms of “Liability”, attorneys or lawyers should exercise “the skill and care that a reasonably competent lawyer would possess.” In terms of “Obligation”, lawyers have such duties as “diligence”, “confidentiality” and “avoidance of conflict of interest.”
Yet so far in Taiwan, the discussion of lawyers’ contractual responsibilities is mainly based on the regulations of Mandate Contract (Article 528~552, Civil Code). Fiduciary duties, which are generally introduced to regulate attorney-client relationship, are seldom mentioned either in theory or in practice. Although there seems little legal malpractice on the island, we ought not to under-estimate the possible litigation boom that a host of cases in lawyers’ disciplinary proceeding are very likely to turn into civil lawsuits. Thus, in search of the means to concretize lawyers’ contractual responsibilities in Taiwan, this Thesis argues that: “Ethical Regulations of Lawyers”, applied as legal grounds to determine whether the said lawyer committed misconduct in almost every disciplinary case, is supposed to function as a practical tool.
Accordingly, Chapter III starts by discussing the meaning and content of the written ethical regulations of lawyers. First, it is the “codification of legal ethics”. Although it raised doubt of propriety and justification while codifying ethical regulations into legal rules, codification of legal ethics is inevitable under requirements of professional autonomy and professional regulation. As a result, many countries like the U.S., Germany, or Japan have already drawn up such codes as “Model Rules of Professional Responsibilities” (the U.S.) or “Lawyers’ Ethics” (Japan), the scope of which is similarly focused on “attorney-client relationship.” “Ethical Regulations of Lawyers” in Taiwan is basically a legal transplantation of the above foreign codes.
Then, Chapter IV of this Thesis continuingly tries to prove that these codified ethical regulations are relevant to defining lawyers’ contractual obligations. After analyzing the interaction of both in other jurisdictions, this Thesis found the two have relevance in substance and in application. Take the U.S. for example. Specific rules of “Model Rules of Professional Responsibilities”, especially those related to attorney-client relations, are the reiteration of lawyers’ professional responsibilities which have earlier been developed in common law. Moreover, after the standards of professional conduct were codified, they began to draw attention in legal malpractice suits. The court did recognize the relevance to appeal to the codified legal ethics as evidence of professional standard of care despite its conservativeness and restrictiveness toward its use in practice.
Finally, Chapter V, by applying the conclusion of the former chapter to reality, discusses the possible controversies over the justification for the courts in Taiwan to use “Ethical Regulations of Lawyers” as the “law” in civil litigation to determine whether the lawyer’s misconduct breach his or her contractual responsibilities. Last but not least, from a policy-maker’s standpoint, this Thesis tries to draw the standardized terms of a lawyer-client contract on the basis of the specific rules of “Ethical Regulations of Lawyers”, and hopes to provide more positive thinking and constructive approaches in materialization of lawyers’ contractual responsibilities.
Subjects
律師倫理規範
職業管制
律師懲戒
律師契約義務
利益衝突
執業過失
專業倫理
律師民事責任
法律倫理
忠實義務
定型化契約條款
律師契約責任
專業過失
當事人自主權
善良管理人之注意義務
委任契約
Duty of Fiduciary
Discipline of Lawyers
Professional Regulation
Conflict of Interest
Model Rules of Professional Conduct
Client Autonomy
Legal Malpractice
Attorneys
Professional Negligence
Reasonable Skill and Care
Legal Ethics
Standard Form Contract
Professional Responsibility
SDGs
Type
thesis
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