As a lawyer there is sometimes a clash between what the lawyer wants to achieve and between what the client wants to achieve – and the methods or ways involved. Quite often, it is mainly a matter of the different knowledge and perspectives of lawyer and client.
Sonetimes it can be quite the juggling act, both acting in the client’s best interests at law (which can manifest itself in a strange way to the layman) and taking their instructions, and carrying out what the client has asked the lawyer to deliver on. For the lawyer, in some cases that can be a complete contradiction. However, clever trickery and linking disparate concepts and ideas can actually achieve both. With a labyrinthine and serpentine logic, it is possible to link, connect and achieve both.
A good example here could be a blog writer wanting to write about the recent shock election of Donald Trump as President of the United States – but being instructed by an editor to write about accident at work law. How to link those two together?
To take the President Elect first – much has already been written and said about Mr Trump. After eight years of Democratic rule under President Obama, January will see a new version of Republican rule enter the White House. After all the advances in issues such as international relations (re-opening Embassies in Iran and Cuba for example), withdrawing from Afghanistan, tackling (admittedly with mixed success) domestic issues such as race relations, poverty, and a stagnant economy, the fear for many is that Mr Trump will belligerently pursue an agenda which will take America backwards under the guise of taking America forward.
However, since the shock election he has been noticeably less vocal; it is as if the reality that he will soon be President is fully sinking in. Instead of a brash, loud buffoon Mr Trump is not being as characteristically outspoken as he appoints his top team; his appointments in themselves are worthy of more mention, but word length will not permit such a digression. Maybe the slightly subdued President Elect is what will be seen in the White House.
With control over Senate and the Representatives, and a Supreme Court Justice to appoint, Mr Trump will be in an enviable position, unlike many other Presidents before him, to push legislation through, and to accomplish things without gridlock in Congress. Elected on a mandate to effect change, and to move away from the traditional politics of Washington DC, it is unlikely that he will actually effect the change the voters wanted, given vested political interests, and the power of the lobbyists in Washington DC. What dramatic change he might effect will probably only serve to divide America further, and in seeking to pursue economic protectionism he will probably only succeed in the long term in causing more economic and social issues in an increasingly isolationist America. Given the spectre of a rising China and a formidable Russia, the world will be devoid of American leadership just at a time when it is needed the most to counter those two growing super powers.
What US media and commentators have also picked up on is the sheer scale of Mr Trump’s business interests and holdings globally. As President, how will this impact upon his foreign and economic policies? Mr Trump himself has only responded by contradictory statements, and seeking to avoid the matter, hoping it will go away of its own accord. Putting his businesses into blind trusts administered by his family is an option he has so far mostly declined to do – despite many Presidents before him doing just that. Legally and otherwise unaware of how their assets and businesses are being run and organised, such an arrangement avoids (for the most part) conflicts of interest between the Oval Office and private business concerns. There are other measures, such as stepping down from his companies for the duration of his Presidency, which could also avoid any embarrassment.
The intriguing thing here is that Mr Trump will also still be considered legally as an employer unless he divests himself of his businesses. As such, he will have liabilities and responsibilities, just like every other employer. He will be held accountable under law for providing a workplace free from discrimination and harassment, adequate training of staff – and a workplace that is safe to work in. Mr Trump, and the management of his various companies, will be held responsible under law for taking all reasonable measures to ensure a workplace that is safe to work in. Any accident at work is often held to be due to the negligence of the management, with that management being held liable, and often having to admit their negligence and pay out compensation for any accidents at work. It would be more than slightly embarrassing if the Oval Office was implicated in any workplace accident compensation claims.
Admittedly it is highly unlikely for any such compensation claim to extend as far up as Mr Trump personally – it is not impossible legally. It is also not impossible for a political adversary to use such workplace issues or claims at one of the President’s many businesses to score a political point.
In British law, an employee can claim compensation for injuries they received in an accident at work that occurred within the last three years that was not their fault. Additional criteria would include the traditional personal injury criteria under tort law, such as duty of care (often implied under Employer Liability), breach, causation (always complicated), remoteness (The Wagon Mound), and so on. American law is different for personal injury – as is personal injury law in other jurisdictions. It would be so easy for the Trump holding companies based in the US to be tangled in employment related litigation in a foreign jurisdiction. If the President were to take certain “unrelated” diplomatic actions in relation to that country – then his impartiality would be more than called into question.
For those and many other reasons Mr Trump needs to divest himself of his business interests, just for the next few tears. Such a necessity is well known to those officials who have actually held any elected public office in the US. A failure to do so could probably result in impeachment hearings in the Senate for conflicts of interests: as if Mr Trump’s existing and predicted actions are not probably going to lead to impeachment already.
What this further demonstrates – is that it is perfectly possible by clever rhetoric and argument to link two disparate ideas and concepts. As such, the lawyer can fulfil both their professional duties, and their duties to their client, which are not always one and the same.