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Week 1 - Accountability and Responsibility - Coggle Diagram
Week 1 - Accountability and Responsibility
How lawyers are perceived
according to Daicoff is that public opinion of lawyers and the legal system is low, with the lack of civility and ‘professionalism’ among lawyers frequently cited as contributing to the poor public image.
positives of the profession
● Defending the rights of those who are unable to defend themselves;
● Pursuing just causes;
● Unsung heroes ‘working competently for ordinary clients paying modest fees’ – P Bergman and M Azimow, Reel Justice: The Courtroom goes to the movies (1996, 1133);
● Protecting civil liberties and human rights;
● Lawyers as guardians or ‘park rangers’ of the legal system;
● Supporting the functioning of modern society under the rule of law; and
● Donating legal services to the public.
Legal education
It is not possible to be admitted to practice as a lawyer in Australia without having completed a course in professional responsibility and legal ethics.
Theories of Ethics
Moral philosophy has two broad approaches to moral issues
Teleological
‘A branch of philosophy that deals with ends or final causes. The theory that certain phenomena or acts are to be explained in terms of purpose or intention.’
Act utilitarianism
Choose behaviour in a particular situation that leads to the greatest good for the greatest number of people.
Deontological
‘The science of duty or moral obligation. The idea is to identify principles based on natural law, which are then defined in terms of rights or duties
Rule utilitarianism
Choose behaviour from a group of similar situations that leads to the greatest good for the greatest number of people.
Lawyers and ethical theories
R Wasserstrom sees the entire approach as unsatisfactory but ultimately does concede that ‘the benefit to clients from the amoral approach is balanced by the influence lawyers can have on their ethical behaviour.’
Ross (2014, p 35) summarises a series of writings exploring and critiquing the notion of a moral lawyer. Ross examines workplace issues flowing from the role of a moral lawyer, including:
● Stress;
● Failure to differentiate between home life and work life;
● Burnout;
● Family breakdown; and
● Issues with technology, monitoring and loss of personal contact.
law is a profession conducted in a difficult environment – an environment which throws up unexpected ethical issues which often do not have ready-made solutions prescribed by the rules.
two main theories
to determining who is a professional or what is a profession
The Trait Approach
Professions
are often analysed by identifying their characteristics, which are said to differ from other groups in society
Geoffrey Millerson said (in The Qualifying Associations: A Study in Professionalization, 1964) that sociologists find that
the main traits that determine a profession are
Testing the competence of members
Organisation
The Provision of Training and Education
For barristers, people must complete an LLB degree or the Legal Practitioners Admission Board Course, three bar exams, the Bar Practice Course, Reading with a tutor, and attend Continuing Professional Development (CPD).
For solicitors, people must complete an LLB degree or the Legal Practitioners Admission Board Course and a practical legal training program.
Testing the Competence of Members
tested prior to admission into the profession and
by the ability of any person to make a complaint against a practitioner
Organisation
Queensland
and other states where self-regulation has been removed in the face of continuing concern about its effectiveness, especially for aggrieved clients.
Law is not a totally self-regulating profession in Australia.
Certification can also be problematic – e.g. degree mills
An ethical code of conduct
Altruistic service
Code of Conduct
The precise code depends on your state and whether it has a fused or divided profession
Divided - In New South Wales and Queensland
1 more item...
Fused
2 more items...
Reasons for the development of codes of conduct include
● control and discipline practitioners;
● set limits on client expectations;
● raise client expectations on lawyer competency; and
● setting aspirations for practitioners.
Ross (2014, p 66) states ‘Codes of professional conduct are one of the most important characteristics of a profession’.
Altruistic service
Sir Daryl Dawson, ‘The Legal Services Market’ (1996) 5 Journal of Judicial Administration 147 argues
that public service was the subordination of personal aims and ambitions to the service of a particular discipline and the promotion of its function in the community.
Roscoe Pound in An Introduction to the Philosophy of Law (2nd ed, 1982)
There is much more in a profession than a traditionally dignified calling. The term refers to a group of men (women) pursuing a learned art as a common calling in the spirit of public service.
For lawyers, public service means serving the public by overcoming barriers such as race, religion, gender, financial etc
Skill based on theoretical knowledge
The provision of training and education
Gino Dal Pont in Lawyers’ Professional Responsibility in Australia and New Zealand ;
Entry to the legal profession has been, and continues to be, restricted to those who fulfiled certain academic and practical requirements…This serves to vest in lawyers a virtual monopoly on legal work, as persons who do not meet these requirements are prohibited by statute from carrying out legal work
.
In Queensland, this monopoly is maintained by Pt 2.2 of the Legal Profession Act 2007 (Qld)
The Act also creates the Legal Practitioners Admission Board and the requirement for a Practicing Certificate. See generally Part 2.3 of the Act, ‘Admission of Local Lawyers’
The trait theory found different traits that separated the legal field from other occupations and formed the basis of the occupation being considered a profession.
legal professional key traits are said to be
skill based on theoretical knowledge
the provision of training and education
testing the competence of members
organisation
an ethical code of conduct
altruistic service
Power and Resources Theory (has now largely replaced the trait theory)
What is the nature of the dominant class and how are the interests of the elite maintained? One such approach is the resources of power theory.
Terence Johnson, Professions and Power (1972) 45 who argues:
The resources of power available to any single occupational group are rarely sufficient to impose on all consumers its own definitions of the content of production and its ends, except where these resources are articulated with other and wider bases of power
.
Terence Johnson (1972, 52) perceives professionalism as:
A peculiar type of occupational control rather than an expression of the inherent nature of particular occupations. A profession is not, then, an occupation, but a means of controlling an occupation…
Ross and MacFarlane, Lawyers’ Responsibility and Accountability Cases, Problems and Commentary (LexisNexis, 2nd ed, 2002) 57 suggest:
[b]y exercising control over their clients and over their area of expertise occupations achieve the status of profession.
The traditional monopolies lawyers enjoy are also being lost to other challengers, e.g. licenced conveyancers or by schemes of compulsory insurance in fields such as traffic accidents and workcover.
Professional Codes of Conduct
The sources of ethical rules include:
● Bar Association of Queensland Barristers’ Conduct Rules 23 February 2018;
● Australian Solicitors Conduct Rules 1 June 2012;
● Legal Profession Act 2007 (Qld); and
● Legal Profession Regulation 2017 (Qld).
Major Themes of Contemporary Debates
Ethical rules as a form of protectionism and self-interest
Balancing the public interest with that of the client
Adequacy of professional indemnity insurance
National admission rules and the development of codes of ethics
Anti-Money Laundering
ChatGPT and generative AI models
Access to justice
Law, ethics and morality
Ross and MacFarlane, Lawyers’ Responsibility and Accountability Cases, Problems and Commentary (4th ed, 2012) 5 suggest the following definitions:
● Ethics – derives from the Greek ethos and ethikos; the former mean ‘character’ and the latter means ‘practice or custom of the community’. Aristotle defined ‘ethos’ in On Rhetoric as being the trustworthiness (or credibility) of the speaker. The modern definition is the science of morals or rules of conduct, or values and rules of individual conduct.
● Professional ethics – the values and rules of conduct of an occupational group.
● Morals – derives from the Latin word mores, meaning ‘custom or conventions of a social group’. The modern meaning includes distinguishing between right and wrong.
● Values – Principles or qualities, which we consider worthy or desirable.
● Beliefs – acceptance of an idea or statement of fact as being true.
● Conventions – unwritten rules and practices governing the behaviour of a social or professional group.
Ross Cranston, Legal Ethical and Professional Responsibility (1995) argues
Lawyers’ morality is not subservient to client interest. Professional codes are vague resulting in a need to look at higher morality.