The Nature of Interests
A. Material and Personal Interests
In this chapter interests means benefits or advantages which a person may wish to assert, acquire, defend or promote. Typically interests have a material dimension, being valued as pecuniary assets.
Material interests include sources of income, financial or property interests. Other interests may be purely personal, such as maintaining good family relations. Sometimes material and personal interests intersect. Examples include business relationships, or maintaining certain unpaid public offices. While these may not appear to have a material dimension, they may hold the key to pecuniary advantage.Obligations to respect or defend people’s interests assume that these are identifiable. Individuals may be able to identify and articulate what their interests are. Where a lawyer represents a child or an incompetent person it is clear that the person in front of them is the client, but who instructs the lawyer or decides what the best interests
2 D Luban, Lawyers and Justice: An Ethical Study (Princeton and New Jersey, Princeton University Press, 1988) at xx and 57.
3 SL Pepper, ‘The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities’ (1986) 11(4) American Bar Foundation Research Journal 613 and the response by D Luban, ‘The Lysistratian Prerogative: A Response to Stephen Pepper’ (1986) 11(4) American Bar Foundation Research Journal 637. of the client are? Institutions or corporations are made up of many individuals and interests and it may be less easy to identify them all or to prioritise them.4
The difficulty of determining organisational interests is illustrated by the example of the prosecution lawyer. Is the prosecutor’s client the Crown or the Crown Prosecution Service? Are the interests of each organisation different? Do they share an ‘interest’ in maximising convictions or particular dispositions of cases? If not, what are their interests? Sir Herbert Stephen wrote that the role of the prosecutor was ‘not to get a conviction without qualification, but to get a conviction only if justice requires it’. In similar vein, the CPS Statement of Purpose and Values (1993) required prosecutors to treat defendants ‘fairly’.5 Therefore, it is fair to say that the CPS has interests other than merely gaining convictions.
B. Moral Interests
It is arguable that lawyers have an interest in maintaining their personal moral standards. This interest may conflict with the interests of clients. A clash of moral standards between lawyer and client is not usually treated as a conflict of interests. Were it to be so, it could be a basis for a lawyer refusing representation. Generally however, lawyers are only able to escape their professional obligations when the client requires illegal conduct or conduct specifically forbidden by rules. A good example is the duty not to deceive the court.
IV.
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