Introduction

Professionals are expected to be socially responsible. They cannot be oblivious to the impacts of their actions. Part of the trust placed in professionals assumes that they can justify the implicit public pledge to consider the good of other members of the community when helping clients.² Arguably, if the role is good, there will be a justifi­able balance between the benefit a profession achieves for society, and the harm it does.

Lawyers are subject to three basic but competing duties owed to different parties. These are loyalty to clients, candour towards the court and fairness towards third parties.³ Obligations to others inevitably limit what can be done for clients. This is why third party obligations tend not to figure large in the codes of ethics of legal professions. Where they do appear, they tend to be negative obligations, rather than positive ones. Apart from the few, specific obligations to regard third party interests, other obligations to third parties are arguably reflected in overarching standards of behaviour, such as core duties.

Obligations deriving from very broad standards are, by their nature, difficult to specify. Therefore, an obligation to be honest or fair could be applied very narrowly, say, only to clients. It could also be interpreted broadly, so as to benefit third parties. In order to see what obligations third parties are owed, it is necessary to look at the practice of the courts or the rules of conduct. These sources suggest that there is no general principle covering third party obligations owed by lawyers. Rather, there are narrow areas in which obligations have been found to exist.

¹ C Menkel-Meadow, ‘Is Altruism Possible in Lawyering’ (1992) 8(2) Georgia State University Law Review 385, at 387.

² D Koehn, The Ground of Professional Ethics (London and New York, Routledge, 1994) ch 4.

³ LR Patterson, ‘On Analysing the Law of Legal Ethics: An American Perspective’ (1981) 16(1) Israel Law Review 28, at 33.

Situations in which lawyers’ duties to third parties have been recognised can be broken down into two categories; responsibilities assumed by lawyers and those imposed on law­yers. Imposed responsibilities tend to be collective. They include the duty not to mislead the court and not to participate in money laundering. These topics are dealt with in the next chapter. Responsibilities assumed by lawyers fall into two groups, collective respon­sibilities accepted by the profession and responsibilities assumed by individual lawyers.

An example of an assumed collective responsibility to third parties is, potentially, a duty owed to prospective clients, as opposed to actual clients. This is illustrated by the cab rank rule. An example of a duty assumed by individual lawyers is a promise to a third party in litigation or in a transaction. The promise may be intended to facilitate a transaction or court process. Such promises are usually proffered in the interests of clients, for example, to advance the efficiency and speed of legal business. Nevertheless, the third party is entitled to hold the lawyer to the promise.

II.