Pub Date : 2023-07-18DOI: 10.1080/1460728x.2023.2235182
E. Mak
{"title":"A code of judicial ethics as a signpost and a beacon: on virtuous judgecraft and Dutch climate litigation","authors":"E. Mak","doi":"10.1080/1460728x.2023.2235182","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2235182","url":null,"abstract":"","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45403753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-13DOI: 10.1080/1460728x.2023.2235184
D. Hegger, P. Driessen, E. Stouthamer, Heleen L. P. Mees
{"title":"Facilitating professional normative judgement through science-policy interfaces: the case of anthropogenic land subsidence in the Netherlands","authors":"D. Hegger, P. Driessen, E. Stouthamer, Heleen L. P. Mees","doi":"10.1080/1460728x.2023.2235184","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2235184","url":null,"abstract":"","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43912411","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-13DOI: 10.1080/1460728x.2023.2235183
Thom Snijders
{"title":"Virtuous judges, politicisation, and decision-making in the judicialized legal landscape","authors":"Thom Snijders","doi":"10.1080/1460728x.2023.2235183","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2235183","url":null,"abstract":"","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46055271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-24DOI: 10.1080/1460728x.2023.2227554
K. Douglas, Lola Akin Ojelabi
{"title":"Lawyers’ ethical and practice norms in mediation: including emotion as part of the Australian Guidelines for Lawyers in Mediation","authors":"K. Douglas, Lola Akin Ojelabi","doi":"10.1080/1460728x.2023.2227554","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2227554","url":null,"abstract":"","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44765243","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/1460728x.2023.2235175
Laura Davies, Laura Magdalena Henderson
ABSTRACT Climate litigation presents specific challenges to judicial decision-making, related to uncertainties caused by the border-crossing nature of the applicable legal frameworks and the complexity of the climate system. Judiciaries around the world often turn to process-based review when dealing with such uncertainties. In process-based review, judges focus on ensuring that decision-making procedures are fair and inclusive of all relevant interests, instead of on substantive policy choices. However, in the case of climate litigation, it appears that where judges wish to use process-based review to avoid substantive judgments in the face of uncertainty, they cannot escape uncertainty about who to include and exclude from the processes. We argue that judges engaged in process-based review must develop an ethic of responsibility for those who are excluded from the democratic process by judicial decision. This ethic of responsibility focuses on the moment before and after the judicial decision, calling the judge's attention to her responsibility to become receptive to the ‘face of the other’ and to reflect on the ‘moral remainders’ caused by her decision. While the decision on exclusion remains based on uncertain grounds, this approach helps ensure it is taken responsibly.
{"title":"Judging without railings: an ethic of responsible judicial decision-making for future generations","authors":"Laura Davies, Laura Magdalena Henderson","doi":"10.1080/1460728x.2023.2235175","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2235175","url":null,"abstract":"ABSTRACT Climate litigation presents specific challenges to judicial decision-making, related to uncertainties caused by the border-crossing nature of the applicable legal frameworks and the complexity of the climate system. Judiciaries around the world often turn to process-based review when dealing with such uncertainties. In process-based review, judges focus on ensuring that decision-making procedures are fair and inclusive of all relevant interests, instead of on substantive policy choices. However, in the case of climate litigation, it appears that where judges wish to use process-based review to avoid substantive judgments in the face of uncertainty, they cannot escape uncertainty about who to include and exclude from the processes. We argue that judges engaged in process-based review must develop an ethic of responsibility for those who are excluded from the democratic process by judicial decision. This ethic of responsibility focuses on the moment before and after the judicial decision, calling the judge's attention to her responsibility to become receptive to the ‘face of the other’ and to reflect on the ‘moral remainders’ caused by her decision. While the decision on exclusion remains based on uncertain grounds, this approach helps ensure it is taken responsibly.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43353726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/1460728x.2022.2146965
J. Schulz, C. Forster, K. Diesfeld
ABSTRACT This article examines disciplinary proceedings about sexual misconduct by lawyers. Sexual misconduct in a professional relationship is harmful and unacceptable and should result in immediate disciplinary action to protect victims, future victims and the public. However, there is no explicit offence of sexual misconduct in Australian disciplinary legislation regarding lawyers. Rather, sexual misconduct must be linked to the statutory offences. While the Australian Solicitors’ Conduct Rules guide the interpretation of the offences, there is only express reference to sexual harassment. We examined tribunal and court legal disciplinary cases from 2000 to 2020 across all Australian jurisdictions in which sexual misconduct had occurred. Decision makers typically only considered sexual misconduct sufficiently egregious to meet the required standard of a disciplinary offence when accompanied by a criminal conviction. The conduct was often portrayed as a result of character flaws, rather than harmful to victims and the public. Thus, decision makers failed to locate the behaviour in the wider incidence of violence against women. The profession’s failure to acknowledge sexual misconduct reflects narrow professional norms which do not robustly protect victims. Explicit acknowledgement of sexual misconduct in disciplinary proceedings is essential. These amendments would signify the importance, frequency and impact of sexual misconduct.
{"title":"The discipline of, and failure to sanction, sexual misconduct by Australian legal practitioners","authors":"J. Schulz, C. Forster, K. Diesfeld","doi":"10.1080/1460728x.2022.2146965","DOIUrl":"https://doi.org/10.1080/1460728x.2022.2146965","url":null,"abstract":"ABSTRACT This article examines disciplinary proceedings about sexual misconduct by lawyers. Sexual misconduct in a professional relationship is harmful and unacceptable and should result in immediate disciplinary action to protect victims, future victims and the public. However, there is no explicit offence of sexual misconduct in Australian disciplinary legislation regarding lawyers. Rather, sexual misconduct must be linked to the statutory offences. While the Australian Solicitors’ Conduct Rules guide the interpretation of the offences, there is only express reference to sexual harassment. We examined tribunal and court legal disciplinary cases from 2000 to 2020 across all Australian jurisdictions in which sexual misconduct had occurred. Decision makers typically only considered sexual misconduct sufficiently egregious to meet the required standard of a disciplinary offence when accompanied by a criminal conviction. The conduct was often portrayed as a result of character flaws, rather than harmful to victims and the public. Thus, decision makers failed to locate the behaviour in the wider incidence of violence against women. The profession’s failure to acknowledge sexual misconduct reflects narrow professional norms which do not robustly protect victims. Explicit acknowledgement of sexual misconduct in disciplinary proceedings is essential. These amendments would signify the importance, frequency and impact of sexual misconduct.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46507415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/1460728x.2023.2206291
Deanne Sowter
ABSTRACT It seems to be commonly understood that sometimes a family lawyer’s advocacy can go too far; however, absent disciplinary proceedings or a claim in negligence, it is not always easy to identify exactly what line a lawyer has crossed. A lawyer’s role, properly understood, is to pursue their client’s interests within the bounds of legality. In this paper, I examine the positivist conception of the bounds of legality in the context of family law. My examination includes consideration of adversarial and non-adversarial advocacy, how much resolve a lawyer can properly use as an advocate, and the means of a lawyer’s craft – both substantive and procedural tactics. In doing so, I provide a theoretical mapping of the bounds of legality, demonstrating that they are insufficient in family law. My aim is to provide the theoretical tools to help inform change to family law, and the law and professional rules governing lawyers.
{"title":"The bounds of legality: an exploration of the limits on ethical advocacy in family law","authors":"Deanne Sowter","doi":"10.1080/1460728x.2023.2206291","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2206291","url":null,"abstract":"ABSTRACT It seems to be commonly understood that sometimes a family lawyer’s advocacy can go too far; however, absent disciplinary proceedings or a claim in negligence, it is not always easy to identify exactly what line a lawyer has crossed. A lawyer’s role, properly understood, is to pursue their client’s interests within the bounds of legality. In this paper, I examine the positivist conception of the bounds of legality in the context of family law. My examination includes consideration of adversarial and non-adversarial advocacy, how much resolve a lawyer can properly use as an advocate, and the means of a lawyer’s craft – both substantive and procedural tactics. In doing so, I provide a theoretical mapping of the bounds of legality, demonstrating that they are insufficient in family law. My aim is to provide the theoretical tools to help inform change to family law, and the law and professional rules governing lawyers.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43184298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/1460728x.2023.2208964
Anna Cody, Sandra Noakes
ABSTRACT Currently, most legal professions are not representative of the communities which they serve. They do not proportionally include diverse members of the community, nor ensure there are diverse practitioners represented in all areas of practice and at senior levels. This impacts on access to justice, a key premise of the law and legal system. One step to make the legal profession more diverse is for law schools to ensure that diverse law students are both admitted and enabled to succeed in their law degrees. While transition to university by diverse students has been analysed over the last 20 years, there remains a disjunct, with students’ cultural capital not being recognised, and students being expected to assimilate into the university, rather than their law studies moulding around them. Using a theoretical model of ‘transition as becoming’, this article analyses first-year law students at Western Sydney University Australia and their responses to a reflection survey. The study identified three key factors which enhance diverse law students’ success: recognising the family, work and caring responsibilities of students; enhancing peer support; and making study expectations explicit. In this way, the curriculum can become a vehicle for ensuring successful transition to law study by diverse students.
{"title":"Valuing diverse students: an ethical response to building success in first-year law students and broadening the legal profession","authors":"Anna Cody, Sandra Noakes","doi":"10.1080/1460728x.2023.2208964","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2208964","url":null,"abstract":"ABSTRACT Currently, most legal professions are not representative of the communities which they serve. They do not proportionally include diverse members of the community, nor ensure there are diverse practitioners represented in all areas of practice and at senior levels. This impacts on access to justice, a key premise of the law and legal system. One step to make the legal profession more diverse is for law schools to ensure that diverse law students are both admitted and enabled to succeed in their law degrees. While transition to university by diverse students has been analysed over the last 20 years, there remains a disjunct, with students’ cultural capital not being recognised, and students being expected to assimilate into the university, rather than their law studies moulding around them. Using a theoretical model of ‘transition as becoming’, this article analyses first-year law students at Western Sydney University Australia and their responses to a reflection survey. The study identified three key factors which enhance diverse law students’ success: recognising the family, work and caring responsibilities of students; enhancing peer support; and making study expectations explicit. In this way, the curriculum can become a vehicle for ensuring successful transition to law study by diverse students.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49563990","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/1460728x.2022.2111153
J. Ching, G. Ferris, J. Jarman
ABSTRACT This paper takes as its starting point the phenomenon of young lawyers in ethical crisis. The teaching of ethics in the classroom and the ethos and environment of the law firm have created dissonance: knowing what it is right to do but being unable to do it. In examining this phenomenon, we develop the idea of commitment as a source of duty, loyalty, and courage that enables someone to accept and overcome reluctance to act ethically. Our conceptual framework combines two models: Fineman’s radical view that vulnerability is universal, but ameliorated by the assets available to the individual, and Rest’s four component model that provides a taxonomy of precursors for ethical action and resilience. We consider how the structures and the relationships between law schools, regulators and law firms, acting in combination, support or degrade ethical resilience and development of a commitment to ethical action. We close by considering how changes to the structure planned by one regulator in England and Wales deplete the assets available to the young lawyer and thereby the profession.
{"title":"‘To act is to be committed, and to be committed is to be in danger’: the vulnerability of the young lawyer in ethical crisis","authors":"J. Ching, G. Ferris, J. Jarman","doi":"10.1080/1460728x.2022.2111153","DOIUrl":"https://doi.org/10.1080/1460728x.2022.2111153","url":null,"abstract":"ABSTRACT This paper takes as its starting point the phenomenon of young lawyers in ethical crisis. The teaching of ethics in the classroom and the ethos and environment of the law firm have created dissonance: knowing what it is right to do but being unable to do it. In examining this phenomenon, we develop the idea of commitment as a source of duty, loyalty, and courage that enables someone to accept and overcome reluctance to act ethically. Our conceptual framework combines two models: Fineman’s radical view that vulnerability is universal, but ameliorated by the assets available to the individual, and Rest’s four component model that provides a taxonomy of precursors for ethical action and resilience. We consider how the structures and the relationships between law schools, regulators and law firms, acting in combination, support or degrade ethical resilience and development of a commitment to ethical action. We close by considering how changes to the structure planned by one regulator in England and Wales deplete the assets available to the young lawyer and thereby the profession.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44299017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/1460728x.2023.2208967
Lijana Valanciene, D. Valančienė
ABSTRACT This article explains the main theoretical aspects of legal ethics, identifies the nature and intellectual structures of legal ethics research, and examines the occurrences, relationships, interconnections, developments and emerging trends of the topic of legal ethics in global legal research, using one of the methods of scientometrics – bibliometric analysis. The annual growth of legal research outputs indexed by Scopus was about 7% over the entire period of study (1991–2020). The most popular type of research outputs in the field of legal ethics are research articles. A multidisciplinary scope of scholarly sources on legal ethics reveals the scholarly development of each field/scientific branch that is both unique and integrated with law and legal ethics, unfolds multifaceted perspectives of legal ethics research, and a contextual sociolegal approach to legal ethics as a social, societal, and political expression. Legal ethics is a much broader and more complex phenomenon than simply a set of codes/rules of ethics and requires integrated research: from an understanding of the particular impact and significance of legal education, ethical rules, and personal morality to ethical decision-making processes, cognitive and social factors.
{"title":"Trends in legal ethics research: a bibliometric analysis","authors":"Lijana Valanciene, D. Valančienė","doi":"10.1080/1460728x.2023.2208967","DOIUrl":"https://doi.org/10.1080/1460728x.2023.2208967","url":null,"abstract":"ABSTRACT This article explains the main theoretical aspects of legal ethics, identifies the nature and intellectual structures of legal ethics research, and examines the occurrences, relationships, interconnections, developments and emerging trends of the topic of legal ethics in global legal research, using one of the methods of scientometrics – bibliometric analysis. The annual growth of legal research outputs indexed by Scopus was about 7% over the entire period of study (1991–2020). The most popular type of research outputs in the field of legal ethics are research articles. A multidisciplinary scope of scholarly sources on legal ethics reveals the scholarly development of each field/scientific branch that is both unique and integrated with law and legal ethics, unfolds multifaceted perspectives of legal ethics research, and a contextual sociolegal approach to legal ethics as a social, societal, and political expression. Legal ethics is a much broader and more complex phenomenon than simply a set of codes/rules of ethics and requires integrated research: from an understanding of the particular impact and significance of legal education, ethical rules, and personal morality to ethical decision-making processes, cognitive and social factors.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45496095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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