This paper seeks to answer three sets of questions relating to investigation that may involve legal elements concepts associated with the analysis and conclusions, which will be justified, defined, and explained. Concepts are discussed with due consideration of their legal significance, and as part of strategy to investigation by the persons duty-bound to do the same in relation to given case facts.
The first question deals with distinguishing two legal concepts with the objective of understanding their legal consequences. The second question talks about the duty of a paralegal involving a potential new client who makes an appointment to see a supervising attorney but said paralegal, having done a conflict check prior to the new client’s arrival, had the knowledge about the conflict as against the attorney instruction to conduct an interview with the objective of getting as much information as possible.
The third question involves the strategy as the choice of witnesses, the types of questions to be asked, the wisdom of telling or not telling the nature and purpose of investigation and the types of things to find out from witnesses in doing a canvass in the neighborhood about a dog bite case, where the client-complainant was a five-year-old boy, who was playing in his front yard. 2, Analysis and Discussion 2. 1 Describe the difference between a witness and a client.
A witness is any one who can perceive and can make know his or her perceptions in court. One could be one’s witness or a witness of the other side in a court case (The Rules of Evidence provide in Rule 130, Secs. 20 and 21, 2001). He or she could be a friendly witness or an adverse witness. His or her role is to testify in court as to the truthfulness of statements made in relation to the case at issue and this makes his or her credibility of paramount importance.
A client, on the other hand, who must be witness to the case as either a complaining witness or a defending witnesses. A complainant becomes a witness by force because he or she must file complaint in court and his complaint will have to be cross-examined in order to establish the truth of the claims. A defendant must plead in defense unless he or she waives his or her right to do so and the statement executed will have to be established as to its truthfulness by a cross examination by the opposing side.
A practicing attorney, who has a witness to become a client, will create the so-called attorney client relationship (Deusen, 1998) which will produce legal consequences like the rule of confidentiality or the privileged nature of communication between the lawyer and the client. From this definition, it could thus be inferred that not all witness will become a client of a party in a case but definitely, a client will be a witness. Since witnesses could be classified into defending or complaining witness, a separate relation of attorney client relationship (Beard, 1997) will be created for each.
However, there are also witnesses that will simply testify for and against a case in issue without really becoming a client of either party. 2. 2 Describe the duties of a paralegal in the following situation: A potential new client makes an appointment to see your supervising attorney. Because you did a conflict check prior to the new client’s arrival, you have learned that she is actually the defendant in your current suit. The attorney asks you to conduct an interview of this potential new client, get as much information as possible, and then bring the attorney the notes.
Thereafter, the attorney wants you to go back in and tell the potential client that your firm cannot represent her because the other side in the case has already retained you. What do you do in this situation? What are your options? When the potential new client makes an appointment to see a supervising attorney, she expects to know as early as possible if the opposing party is also the client of the law firm. The potential new client could not be left waiting to be informed latter after giving relevant information about the case that she is the opposing party of a client of the firm.
Not all information given by the potential client however will be necessary to create a duty on the part of the paralegal not to hear from the potential new client for purposes of rejecting a potential on the ground of conflicting interest of the case. Since case facts say that I did a conflict check prior to the new client’s arrival, and that I have learned that she is actually the defendant in our current suit, I should tell the supervising attorney immediately about the situation.
That should inform the supervising attorney of the consequences of the latter’s instruction to “conduct an interview of this potential new client, get as much information as possible, and then bring the attorney the notes. ” I should not conduct the interview as get as much information but only such information that could help me in deciding to form a decision whether or not to recommend cancellation of the potential engagement to the supervising attorney because of conflict of interest.
Common sense will tell that I cannot thereafter, go back in and tell the potential client that our firm cannot represent her because we have already been retained by the other side in the case after taking some information which may be relevant and damaging to the case of the potential client.. Legal ethics prohibit the practice of taking clients of the opposing side after engagement contract has been made with the other side as the lawyer or the law firm would be placed in very unjustly advantageous situation because of the knowledge of the facts on the other side including the evidence of the case.
Although there is the attorney-client relationship (Kramer, 1999) that could be invoked had I accidentally taken information from the client before I discovered that she is a defendant of a case of an already existing client, a big responsibility lies on the law firm’s part to be careful about the treatment of the information. It must be made clear that the law firm has already established an attorney client relationship previously with the opposing client. The law firm of which I am a part is charged with knowledge of the cases of pending clients that would cause any potential conflict of interest in accepting cases of potential clients.
To protect the client from the possibility of encountering this problem, the potential client must not give any evidence of her case until she gets assured that the law firm is not also a lawyer of the opposing side. In answer therefore to the questions on what do you do in this situation as well as the options available, I would go for telling the potential client that she cannot become a client of the firms since there is already an engagement of the opposing side.
If therefore I have knowledge that the opposing party is our client, I should advise immediately the supervising attorney that the interview could not be conducted. If after my discovery of the fact of attorney-client relationship of the opposing side happened after I have conducted the interview with the potential client, I must also tell the supervising attorney that such was a fact and it should the supervising attorney’s job to explain to the potential client that development of the events was not intended and that it happened only by accident.
If the event really happened accidentally the law firm could choose even terminate relationship with the first client because of the possibility that the law firm would in an unethical situation with conflict of interest because of the accidental situation of knowing the details and evidences of the contending sides.