A Definition of Conduct
In contrast to conduct, which generally refers to the action, behavior, or the manner of either, "conduct" carries with it a legal connotation. The court may deem conduct that is unlawful or immoral detrimental to either the parties involved or to the lawsuit at hand . Conduct as identified by the court system may come in two categories—prejudicial and non-prejudicial. Any conduct that may be deemed prejudicial could have a significant impact on the future of a case, such as with a judgment or settlement offer, while non-prejudicial conduct will typically be of little consequence with regard to a ruling.
Ways That Conduct is Used
There are several types of legal conduct. Lawful conduct is that type of conduct that the law allows; which is not prohibited by law and is not illegal. For example, it is lawful to shop at a store; to enter or to leave your home; and to drive a car or operate machinery.
Unlawful conduct is that type of conduct that is prohibited by law; that is an infringement of the rights of others or breaking the law. For example, it is unlawful to steal from someone else; to trespass onto someone else’s property for the purpose of vandalizing it, destroying it or otherwise interfering with it; to sexually assault someone and to physically harm someone.
Criminal conduct is that type of unlawful conduct where you infringe on the rights of other members of our society and have some intent to do so. A criminal does not have a lawful excuse for his unlawful conduct and he has the appropriate state of mind – knowingly or willingly – to do the criminal act.
Conduct in Criminal Law
Conduct, in the realm of criminal law, refers to a person’s personal actions or behavior that is essential in determining whether a criminal activity has occurred. Criminal conduct must be considered either actively engaged in a prohibited act or passively failing to act when there is a legal duty to do so. While most criminal offenses require an individual to engage in a specific physical act, there are certain crimes that hinge on the defendant’s failure to act in accordance with the law.
Criminal liability generally requires a specific mental state contributing to the defendant’s prohibited physical acts, in addition to the action or inaction. In most cases, committing a crime (actus reus) also requires criminal intent (mens rea), or a guilty mind. For example, in a drug possession case, a defendant must (1) possess a controlled substance, and (2) have done so purposely, knowingly, or recklessly.
Conduct is particularly critical in crimes involving conspiracy or solicitation to commit a crime, where the defendant may not have committed an act or omission constituting the fundamental element of the alleged offense, but his criminal conduct is nonetheless necessary to establish guilt. Under the Model Penal Code, "an agreement to commit a crime is itself an act." Prosecutors may prove an agreement to commit a crime through circumstantial evidence including where the defendant and another person both participated in certain crimes and thereafter adopted a common scheme in which all were committed. The crime of conspiracy punishes not only those who commit crimes, but also those who agree to commit them. The agreement itself serves as a basis for liability.
In State v. Cromedy, the defendant was convicted of second-degree robbery in connection with an October 2006 two-person robbery of a seafood deliveryman by gunpoint. Criminal conduct includes not only where a defendant aids and abets another in the commission of a crime, but also establishes liability for the underlying offense based on the defendant’s agreement to commit the crime if the substantive offense requires it. Thus, a person is guilty of the crime of robbery where that person agrees with another person that one or more members of the group would engage in conduct constituting robbery, and when one or more of those persons actually engage in such conduct, the defendant is also guilty of robbery.
Similarly, in State v. Gore, the defendant and her boyfriend were charged with murder for their part in the death of a Jersey City man. The defendant was alleged to have assisted her boyfriend in his murder of the victim by obtaining a knife when he said that he wanted to kill the victim.
Criminal liability will be imposed on defendants where the prosecution establishes the requisite mental state and physical act or omission requiring proof of criminal conduct.
Conduct in the Civil Context
Conduct refers to the voluntary or intentional acts or behavior of a person. It encompasses the way that people act, make decisions, and behave in society around others. Conduct includes the actions undertaken by people, as well as the outcomes of those actions. Many people focus on the definition of conduct in terms of its criminal implications, but there is an equally important civil implications of the concept of conduct.
How does conduct lead to civil liability? The acts of individuals can have serious consequences on the lives of others. For example, someone who gets behind the wheel while intoxicated may injure or kill a person in a car accident. A doctor who misdiagnoses a serious and obvious condition may cause someone’s medical condition to worsen. In cases such as these, the conduct of the offending party can lead to civil lawsuits.
In addition to wrongful conduct in the forms of negligent and intentional acts, conduct can also refer to non-compliance with laws and regulations that govern people’s behavior. For example, businesses are expected to abide by certain rules set forth under federal labor laws. A company that fails to do so may face civil action from employees who believe their rights under those laws were violated.
The enforcement of these laws is primarily done through private civil cases brought to the courts. For example, an employee injured in a car accident caused by a drunken driver may file a personal injury claim against the driver. Alternatively, beginning in relative obscurity in the late 1800s, the federal courts have vastly expanded their enforcement of statutory rights through costly and relatively easy to file civil actions seeking damages and penalties against because of alleged statutory retaliation against persons taking action in relation to workplace safety, civil rights, environmental laws, etc.
Conduct in the Courtroom
Courts are likely to assess conduct in terms of the specific allegations being made against a party to proceedings. An employer may be accused of having a discriminatory recruitment policy. On the other hand, an employee may be accused of having adopted a discriminatory approach to performance management. In determining the truth of such an accusation, the question of whether the recruitment policy was discriminatory is unlikely to be divorced from the question of whether the approach to performance management was discriminatory. Courts will also be concerned to ask whether the conduct was intentional and whether there are objective criteria to be applied in assessing the impugned conduct. That is not to say that a subjective test will not apply. It may , for example, be necessary for the party alleging that conduct was discriminatory to show that a qualified comparator acted differently (and not discriminately) to the claimant. It may also be necessary to look at the protected or otherwise protected characteristic and examine not only in what way it gave rise to a difference but also whether this difference is material. Courts are likely to reach so-called ‘proportionality’ tests. For example, was the reason for the selection of a particular candidate for promotion reasonable in the circumstances?
Conduct and Your Defense
In legal contexts, the term "conduct" can reference many different types of actions, behaviors or demeanor before or during legal proceedings. Depending on the type of case being litigated, defense lawyers may seek to build a strong case around a client’s own conduct—or lack thereof—in an effort to gain leverage against opposing counsel. In some cases, the way that one party conducts itself in the lead-up to a lawsuit may be considered as a valid factor by courts in determining liability in the matter. When filing a complaint against an opposing party, they’re liable for everything that took place throughout the entire time leading up to the lawsuit. Thus, if the defendant was conducting themselves in malicious, negligent or otherwise questionable ways prior to the complaint being filed, the plaintiff can use that to their advantage in their case. Thus, your conduct is subject to scrutiny the moment you get sued, and if you’ve been smart about the way you’ve conducted yourself, you’ve gotten a head start on building a solid case in your favor. An example of this might come into play with regard to a contract breach: if you have proof that the other party was conducting itself in a way that demonstrated they would not be meeting their contractual obligations, this might give you grounds to break the contract without penalty, since the other party had already breached the contract prior to your official allegation. The concept of conduct is a critical one in issues of negligence. If it can be proven that the other party manifested an extreme or sudden deviation from what a "reasonable person" would have done in any given situation, then legal penalties can be administered. This is commonly seen in car accidents—if the other driver violated traffic laws, was distracted or used any other negligent behavior, they may have a difficult time getting the case dropped against them. When you’re involved in a court proceeding, your lawyer must be able to examine the conduct of both you and the other party prior to your lawsuit, as well as that of the other parties involved in the case overall. They must be able to establish the conduct of everyone who’ll be on the stand, including police officers, friends, family members, witnesses, doctors, nurses, accountants, etc. Even conduct that isn’t directly related to the issue at hand can determine big picture matters of liability in the case. That means that even if you were performing your profession as intended you still might be held liable for conduct that played a role in the matter.
Reforming Conduct Statutes
While the new liberal statement of conduct is now found in the 2012 National Law and the rules and guidelines made under that law, the reforming activity did not stop there. Indeed, under both the old and new Acts there has been extensive debate about the relationship between conduct standards and criminal behaviour. The problem is that while in some cases breach of a conduct standard may be a criminal offence it is not always. Further, even where it is an offence there may be significant substantive differences between the two. In such a situation it is not uncommon for the conduct standard and the criminal law to overlap and interact two different purposes and processes. This difficulty has been obvious in a number of cases but perhaps most so in the context of the offences falling under section 99(3)(c) of the former National Law. This was the offence of "improper or dishonourable dealing". In a number of cases, particularly of insolvency advisors, the courts have tended to treat the conduct standard and the offence as seeking to fill the same hole in the conduct fabric. That was despite the conduct standard covering not only the substantive issues which may constitute criminal activity but also other conduct such as breach of fiduciary duty. It was thought that there would be an improvement in this area under the new National Law particularly by the introduction of a single statutory duty for directors et al. to act in good faith and for a proper purpose, this being stated to be unpaid by the civil and criminal laws upon them. It was thought that there would be an improvement by recognition that whilst there were overlaps between the conduct standard and the criminal laws the offences were separate and there was no need to draw analogies. Even so , there was provision for references between the two sets of laws. However, sub-section 180(2) of the 2012 National Law still provides that anything done under the existing criminal law can be used in disciplinary proceedings whilst sub-section 180(3) states that the National Law does not limit any Commonwealth, State or Territory law that imposes a duty or standard of conduct on an officer. It is not immediately clear if this does or does not extend to the defences in the criminal code. There is also the possibility of argument that matters which amount to criminal offences under one statute may lead to the imposition of penalties under the new law. For example, there is nothing to prevent the fact that a person who breaches his/her legal obligations may be liable under two different risk provisions. As well as reference in the Explanatory Memorandum to the fact that the criminal courts might place emphasis on the matter, the commentary that led to the introduction of the single duty of a director, the Australian Company Law Review Panel Final Report December 1997, illustrated this dichotomy of issues. However, the review panel managed to reconcile the competing theoretical models by introducing specific proposals thereby providing certainty to the role this section has. I suspect however that the patchy and even ad hoc way in which these reforms have arisen will continue to lead to problems in the future. Indeed, it is something of a concern that the ongoing review of the Corporations Act by the Australian Government which began new in 2014, called the "Ramsay Review", has little comment on the link between the two areas of conduct regulation. Given the significance of this area it may be that this should be one of the issues that this reform process addresses.