Friday, 2. December 2022

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Professional Responsibility, a Question of Ethics

1. Criminal Law

I would not want to defend a murderer or rapist. At least not in the way that I plead „Not guilty“ although I know that the person committed the crime. In my opinion, a criminal should be punished according to the crime that he committed.

Criminal defense lawyers on the other hand argue the following way: A perpetrator may only be convicted if the prosecution can prove, with the means permitted by criminal procedure, beyond a reasonable doubt that (s)he committed the crime. But is that really just? Is it just to tell the young woman who has been raped by five men: „Sorry, but there is your word against the testimony of the five men that the sex was consensual, and that is not enough for a conviction“?

In my opinion it is an „imperfection“ when the legal evaluation and punishment cannot be based on the true facts as they actually occurred. This is the case when the court does not know beyond a reasonable doubt that the perpetrator in fact committed the murder or rape.

Now, this imperfection is of course – or probably – still better than torture or permanent total surveillance. But it still is an imperfection, a shortcoming, which leads to the result that a criminal cannot be punished according to the crime he committed.
This is the reason why I am not a criminal defense attorney.

2. Civil Law

And what is the situation with finding the truth in civil law?

a) Well, in a civil proceeding both parties – and their attorneys as well – have to speak the truth. That means that they are not allowed to lie in court. On the other hand, there are rules of evidence, and the court may base its judgment only on the facts that have been proven. This may lead to a conflict between the effective and zealous representation of your client on the one hand, and the requirements of professional responsibility and ethics on the other.

b) Let me tell you about the following case that I recently had to argue in court. Or let us rather call it the following fictitious case:

My client was in negotiations with a large German food chain concerning a particular project. The contract had not been signed yet, but the food chain still wanted my client to commence with its logistics services. In this situation, a manager of the food chain with (joint) commercial power for representation told my client: „If you start with your services right now, we will reimburse you as stipulated in the draft contract.“

Things turned out as they usually do: The contract negotiations failed, a contract was not signed, and my client sent the food chain an invoice for the services it had rendered during the period of negotiations. To our surprise, the opposing party in the ensuing lawsuit raised the objection that the person who had promised a reimbursement as stipulated in the draft contract had no authority to do so because he had only a joint power for representation. And, of course, they argued that he had not been authorized by the managing director of the food chain to make that promise. Therefore, the opposing party did not want to reimburse my client for the services rendered.

Everybody knew that the food chain manager did indeed have the full authorization of the managing director when he made his promise. In court, however, they disputed that.

Was that denial on the part of the food chain – and in particular on the part of their attorney – justified? Was it legally okay to do so?

In my opinion, it was not. The defendant won the case because the rules of evidence worked against us. We could not prove that the manager on the other side had sole power for representation or was authorized by the managing director when he made his promise. And the court rejected our line of argument that there was apparent authority (“Anscheinsvollmacht“). In my opinion, however, the rules of professional responsibility and legal ethics would have barred the food chain from denying that their manager had acted with the consent of the managing director and that his promise to pay had therefore been legally valid.

c) Conclusion: Counsel for the defense, who came up with the idea that the food chain manager did not have sufficient authority to promise payment, was clever. But did he also act professionally responsible and ethical? –  I will leave this for you to decide.

Dr. Wolfgang Gottwald
Attorney at Law

DR. GOTTWALD
Rechtsanwalt
Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13

w.gottwald@kanzlei-dr-gottwald.de