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Ethics in practice in asylum law: asylum legal aid lawyers’ moral reasoning in respect of ‘hopeless cases’ 庇护法实践中的伦理:庇护法律援助律师对“无望案件”的道德推理
IF 1 Q3 Arts and Humanities Pub Date : 2022-07-03 DOI: 10.1080/1460728x.2022.2124068
T. Butter
ABSTRACT The aim of this paper is twofold: first, it seeks to provide a better understanding of lawyers’ ethics in practice in the field of publicly funded asylum law. It does so by examining Dutch asylum legal aid lawyers’ moral reasoning in respect of the ethically challenging issue of ‘the hopeless case’, employing a version of Christine Parker’s four approaches to moral reasoning in legal practice: adversarial advocacy, responsible lawyering, moral activism and relational lawyering. Second, it aims to demonstrate the applicability of Parker’s taxonomy, developed in a common law country (Australia), to a civil law country (The Netherlands). This paper shows, in line with what Parker argued, that lawyers may apply a combination of approaches – different ethical considerations carry different in weight in different circumstances. It provides illustrations of situations in which approaches coexist and compete and the circumstances in which one prevails over the other in the area under review.
摘要本文的目的有两个:第一,旨在更好地了解公共资助庇护法领域律师的道德实践。它通过研究荷兰庇护法律援助律师在“无望案件”这一具有道德挑战性的问题上的道德推理来做到这一点,采用了克里斯汀·帕克在法律实践中的四种道德推理方法:对抗性辩护、负责任的律师、道德激进主义和关系律师。其次,它旨在证明在普通法国家(澳大利亚)发展起来的帕克分类法对大陆法系国家(荷兰)的适用性。这篇论文表明,与帕克的观点一致,律师可以采用多种方法——不同的道德考虑在不同的情况下具有不同的分量。它举例说明了在所审查的领域内,各种方法共存和竞争的情况,以及一种方法战胜另一种方法的情况。
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引用次数: 0
The corporate general counsel who respects human rights 尊重人权的公司法律总顾问
IF 1 Q3 Arts and Humanities Pub Date : 2021-10-07 DOI: 10.1080/1460728x.2021.1979731
John F. Sherman III

ABSTRACT

Global soft law (notably the 2011 UN Guiding Principles on Business and Human Rights ‘UNGPs’), multistakeholder norms, the business practices and policies of leading companies, the expectations of investors and stakeholders, and hard law in a growing number of jurisdictions, all expect that businesses should respect human rights in their operations and in their value chains. The COVID 19 pandemic has made it urgent for corporate legal departments, led by the general counsel, to support the company’s commitment to respect human rights. This means using human rights due diligence to improve human rights performance, rather than as a paper exercise intended primarily to avoid legal liability. This paper provides practical guidance on how corporate general counsel can help their companies conduct authentic and robust human rights due diligence by acting as technical legal experts, wise counsellors, and leaders.

摘要全球软法(尤其是2011年《联合国工商业与人权指导原则》)、多利益相关方规范、领先企业的商业实践和政策、投资者和利益相关方的期望,以及越来越多司法管辖区的硬法,都要求企业在其运营和价值链中尊重人权。新冠肺炎疫情使得以总法律顾问为首的企业法律部门迫切需要支持公司尊重人权的承诺。这意味着使用人权尽职调查来改善人权表现,而不是作为主要旨在避免法律责任的书面作业。本文提供了关于公司法律总顾问如何作为技术法律专家、明智的顾问和领导者,帮助其公司进行真实而有力的人权尽职调查的实用指导。
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引用次数: 0
Agency over technocracy: how lawyer archetypes infect regulatory approaches: the FCA example 机构凌驾于技术官僚之上:律师原型如何影响监管方法:以FCA为例
IF 1 Q3 Arts and Humanities Pub Date : 2021-07-03 DOI: 10.1080/1460728x.2022.2059742
T. Clark, R. Moorhead, S. Vaughan, A. Brener
ABSTRACT In this article, we look at the contested role of in-house lawyers in regulated organisations in the financial sector. A recent Financial Conduct Authority consultation on whether to designate the head of legal of banks, insurance companies and other financial firms as ‘Senior Managers’ and the decision which flowed from it, reflected a flawed view of lawyers as a neutral technocracy of mere legal technicians; we show how the FCA’s decision is potentially damaging to the public interest and failed to take into account that in-house lawyers are often important decision-makers and influencers within their organisations. We put the case for an alternative view; that in-house lawyers are professionals, with agency that requires them to act in accordance with ethical norms and means they should be made more accountable for their conduct.
摘要在这篇文章中,我们将探讨内部律师在金融行业受监管组织中的争议角色。金融行为监管局最近就是否将银行、保险公司和其他金融公司的法律主管指定为“高级管理人员”以及由此产生的决定进行了磋商,反映了一种有缺陷的观点,即律师是一个纯粹由法律技术人员组成的中立技术官僚;我们展示了FCA的决定如何潜在地损害公众利益,并且没有考虑到内部律师通常是其组织中的重要决策者和影响者。我们提出了另一种观点;内部律师是专业人士,该机构要求他们按照道德规范行事,这意味着他们应该对自己的行为更加负责。
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引用次数: 1
The grey zone: the implications of the ageing legal profession in Australia 灰色地带:澳大利亚法律职业老龄化的影响
IF 1 Q3 Arts and Humanities Pub Date : 2021-07-03 DOI: 10.1080/1460728x.2022.2027118
A. Melville, V. Caines, Marcus Glenn Walker
ABSTRACT Lawyers in many jurisdictions are ageing, and yet there is little information concerning the age profile of the legal profession. This paper presents the first consideration of the age profile of lawyers outside of the US, showing that Australian lawyers are ageing and delaying retirement. These findings have serious implications. Problems associated with a growing proportion of older lawyers include an increasing risk of lawyers suffering from age-related cognitive and physical impairment, and the related rise of complaints and malpractice claims against older lawyers. It is also clear that the Australian legal profession is unprepared to address these problems. The legal profession has ignored important gender-specific implications of ageing, such as female lawyers experiencing menopause and the lower savings of female lawyers moving into retirement. Regulatory regimes have not considered the impact of the profession's ageing profile, and there is no mandatory reporting of lawyers suffering from age-related impairment or provisions should a lawyer die. The profession also has not provided strategies to positively transition lawyers into retirement, and there is a lack of flexible working arrangements and succession planning, especially in firms located outside urban centres.
摘要:许多司法管辖区的律师都在老龄化,但关于法律职业的年龄分布信息却很少。本文首先考虑了美国以外律师的年龄状况,表明澳大利亚律师正在老龄化和延迟退休。这些发现具有严重的影响。与越来越多的老年律师相关的问题包括律师患与年龄相关的认知和身体损伤的风险增加,以及针对老年律师的投诉和渎职索赔的相关增加。同样显而易见的是,澳大利亚法律界对解决这些问题毫无准备。法律界忽视了老龄化对性别的重要影响,例如女性律师经历更年期,女性律师退休后储蓄减少。监管制度没有考虑到该行业老龄化状况的影响,也没有强制报告律师患有与年龄相关的损伤,也没有规定律师死亡时的准备金。该行业也没有提供积极过渡律师退休的战略,也缺乏灵活的工作安排和继任规划,尤其是在城市中心以外的公司。
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引用次数: 0
‘Fit and proper’ coders? How might legal service delivery by non-lawyers be regulated? “合适的”程序员?如何监管非律师提供的法律服务?
IF 1 Q3 Arts and Humanities Pub Date : 2021-07-03 DOI: 10.1080/1460728x.2022.2049522
Felicity Bell, Justin Rogers
ABSTRACT With an upsurge of interest and investment in new legal technologies comes consideration of who is making them and whether these individuals or entities should be subject to regulation. This article looks at how such regulation might function in light of the existing regulatory regimes governing lawyers and the capacities of legal regulators. It considers the ramifications both of maintaining the existing system, or in extending some form of regulation to these new entrants to the legal services market.
随着对新法律技术的兴趣和投资的高涨,人们开始考虑是谁在制造这些技术,以及这些个人或实体是否应该受到监管。本文着眼于根据现有的管理律师的监管制度和法律监管机构的能力,这种监管可能如何发挥作用。它考虑了维持现有制度,或将某种形式的监管扩展到这些新进入法律服务市场的人的后果。
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引用次数: 1
Editorial 社论
IF 1 Q3 Arts and Humanities Pub Date : 2021-07-03 DOI: 10.1080/1460728x.2022.2096179
L. Webley
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引用次数: 0
Soft law, legal ethics and the corporate lawyer: confronting human rights and sustainability norms 软法、法律伦理和企业律师:面对人权和可持续性规范
IF 1 Q3 Arts and Humanities Pub Date : 2021-01-02 DOI: 10.1080/1460728x.2021.1979729
S. Seck, Richard F. Devlin, S. Quigg
We are all familiar with the old adage that hard cases make for bad law. This symposium riffs off that idea to inquire whether soft law can make for (great) ethical lawyering? To interrogate this question, the Schulich School of Law at Dalhousie University, Canada, hosted the 30th annual Wickwire Lecture and invited several scholars from different jurisdictions to share their reflections on the complicated, but increasingly common, challenges of the relationship between emerging soft law norms and the ethical obligations of corporate lawyers. Soft law norms for corporate actors emerge from a variety of sources, and a bright line between ‘hard’ and ‘soft’ law is often not obvious. For example, from the international human rights law sphere, the United Nations Guiding Principles on Business and Human Rights (UNGPs) were endorsed by the member states of the UN Human Rights Council in 2011. The UNGPs were developed over a number of years through many multi-stakeholder processes that included input from states, business actors, and non-governmental human rights organisations, as well as corporate lawyers. Often referred to as the authoritative global standard on business and human rights, the UNGPs are comprised of three pillars: 1) the state duty to protect human rights in accordance with existing international human rights law; 2) the business responsibility to respect human rights as a reflection of social expectations; and 3) the need for effective access to remedy for victims of business-related human rights abuses, whether through judicial, non-judicial, state-based, or non-state-based processes, including company-level grievance processes. Particularly, pillar two further provides that corporate actors should adopt human rights policies, engage in human rights due diligence throughout the business enterprise, and both prevent and account for human rights impacts that they identify, among other conduct. However, while the point of reference
我们都熟悉这句古老的格言:棘手的案件导致糟糕的法律。本次研讨会借用了这一观点来探讨软法律是否能造就(伟大的)道德律师?为了探究这个问题,加拿大达尔豪斯大学舒利希法学院举办了第30届年度Wickwire讲座,并邀请了来自不同司法管辖区的几位学者分享他们对新兴的软法律规范与公司律师的道德义务之间关系的复杂但日益普遍的挑战的思考。针对企业行为者的软法律规范有多种来源,“硬”法和“软”法之间的界限往往并不明显。例如,在国际人权法领域,2011年联合国人权理事会成员国批准了《联合国工商业与人权指导原则》。《联合国指导原则》是多年来通过许多多方利益攸关方进程制定的,其中包括国家、商业行为者、非政府人权组织以及公司律师的投入。通常被称为工商业与人权方面的权威全球标准,《联合国全球指导原则》由三个支柱组成:1)根据现有国际人权法,国家有义务保护人权;2)企业尊重人权的责任是社会期望的反映;3)与企业有关的侵犯人权行为的受害者需要有效获得补救,无论是通过司法、非司法、基于国家或非国家的程序,包括公司一级的申诉程序。特别是,支柱二进一步规定,公司行为者应采取人权政策,在整个商业企业中进行人权尽职调查,除其他行为外,预防和解释其确定的人权影响。然而,虽然参考点
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引用次数: 0
Be careful what you wish for: a European perspective on the limits of CSR in the legal profession 小心你的愿望:从欧洲人的角度看待法律界企业社会责任的局限性
IF 1 Q3 Arts and Humanities Pub Date : 2021-01-02 DOI: 10.1080/1460728x.2021.1979732
Birgit Spiesshofer
ABSTRACT Law firms, bars and lawyers associations qualify as ‘enterprises’ in the sense of all international CSR norms such as the UN Global Compact, the UN Guiding Principles, the OECD Guidelines for Multinational Enterprises and ISO 26000 Guidance on Social Responsibility. Thus, these CSR norms apply to law firms and lawyers in principle. Lawyers are, however, not only service providers. They have also an official function based on human rights and rule of law guarantees of access to justice and the courts. Therefore, the application of CSR norms has to be adapted to the specific role and duties of the lawyers. This applies in particular to their capacity (1) as enterprises and suppliers of services, (2) as gatekeepers concerning the ‘CSR-compliance’ of their clients, and (3) as ‘legal’ advisors. An important element is lawyers’ independence. Besides certain legally defined responsibilities, lawyers are not to be identified with their clients and their deeds. A more far-reaching responsibility, based on ‘social expectations’ in line with the UN Guiding Principles, risks undermining the independence of the attorneys and their role in the administration of justice as the examples from the Nazi regime and McCarthy era show. Be careful what you wish for.
摘要律师事务所、律师协会和律师协会在所有国际企业社会责任规范(如《联合国全球契约》、《联合国指导原则》、《经合组织跨国企业准则》和《ISO 26000社会责任准则》)的意义上都被称为“企业”。因此,这些企业社会责任准则原则上适用于律师事务所和律师。然而,律师不仅仅是服务提供者。他们还有一项基于人权和法治保障的官方职能,即诉诸司法和法院。因此,企业社会责任规范的适用必须适应律师的具体角色和职责。这尤其适用于他们的能力(1)作为企业和服务供应商,(2)作为客户“企业社会责任合规”的看门人,以及(3)作为“法律”顾问。一个重要因素是律师的独立性。除了某些法律规定的责任外,律师不应被视为其客户及其行为。正如纳粹政权和麦卡锡时代的例子所表明的那样,基于符合《联合国指导原则》的“社会期望”的更深远的责任有可能破坏律师的独立性及其在司法中的作用。小心你的愿望。
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引用次数: 0
Professional responsibility and the defence of extractive corporations in transnational human rights and environmental litigation in Canadian courts 加拿大法院跨国人权和环境诉讼中采掘公司的专业责任和辩护
IF 1 Q3 Arts and Humanities Pub Date : 2021-01-02 DOI: 10.1080/1460728x.2021.1979730
Amy Salyzyn, Penelope Simons
ABSTRACT Lawyers defending extractive corporations in transnational human rights and environmental cases tend to reflect the dominant ‘resolute advocacy’ model of litigation, which directs lawyers to aggressively pursue clients’ interests though all available means. Is a different vision of advocacy more appropriate in this context? In answering this question, we look to the rule of law foundation of the ‘resolute advocacy’ model and note the ways in which rationales for aggressive litigation behaviour are pragmatic, contextual and contingent. From this observation, we propose a model of ‘moderated resolute advocacy’. We ground this claim in the background context generated by the United Nations Guiding Principles on Business and Human Rights and the Sustainable Development Goals and in the barriers that plaintiffs face. The model we propose would not only emphasise existing obligations on lawyers not to generate unreasonable costs, create undue delay or advance unfounded legal claims but also promote an approach to litigation oriented towards the efficient determination of substantive claims on their merits. To operationalise this model, we propose a two-pronged approach that includes the development of a voluntary litigation code of conduct alongside legislative action to remove some of the legal obstacles for plaintiffs bringing these cases.
在跨国人权和环境案件中为采掘公司辩护的律师往往反映出占主导地位的“坚决倡导”诉讼模式,这种模式指导律师通过一切可能的手段积极追求客户的利益。在这种情况下,一种不同的倡导观点是否更合适?在回答这个问题时,我们着眼于“坚决倡导”模式的法治基础,并注意到积极诉讼行为的理由是务实的、背景的和偶然的。根据这一观察,我们提出了一种“温和的坚决倡导”模式。我们基于《联合国工商业与人权指导原则》和《可持续发展目标》的背景,以及原告面临的障碍,提出了这一主张。我们提出的模式不仅将强调律师的现有义务,即不产生不合理的费用、造成不当的延误或提出没有根据的法律索赔,而且还将促进一种面向根据其是非事实有效确定实质性索赔的诉讼方法。为了实施这一模式,我们提出了一种双管齐下的方法,包括制定自愿诉讼行为准则,同时采取立法行动,消除原告提起这些案件的一些法律障碍。
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引用次数: 2
Reflection and clinical legal education: how do students learn about their ethical duty to contribute towards justice 反思和临床法律教育:学生如何学习他们为正义做出贡献的道德责任
IF 1 Q3 Arts and Humanities Pub Date : 2020-07-02 DOI: 10.1080/1460728x.2020.1799303
Anna Cody
ABSTRACT This article analyses teaching reflection skills as a means to inculcate students’ capacity to contribute to justice. Arising out of understandings of professionalism, the rule of law, as well as model codes of conduct for solicitors, lawyers have an ethical duty to contribute to building the justice of law and the legal system. Learning how to reflect is an essential part of being able to fulfil this duty, and clinical legal education as a method within legal education is an effective means to teach students how to reflect. They learn how to deal with ‘disorienting moments’ and to make sense of the complexity of legal practice through a process of self-reflection and reflection on law and the legal system. The article discusses the range of ways in which reflection can be taught to emphasise the integration of values, emotions, thinking and analytical skills in forming lawyers who are well- rounded lawyers. A growth mindset which recognises the ability of brains to constantly change and grow is a radical and positive development in our understanding of intelligence which supports the nurturing of lawyers’ ability to reflect and continue to fulfil their ethical duty to work towards justice in some form.
摘要本文分析了反思技能作为一种手段来培养学生为正义做出贡献的能力。出于对专业精神、法治以及律师行为准则范本的理解,律师有道德义务为建立法律公正和法律制度做出贡献。学习如何反思是履行这一职责的重要组成部分,而临床法律教育作为法律教育中的一种方法,是教学生如何反思的有效手段。他们学习如何应对“迷失方向的时刻”,并通过对法律和法律体系的自我反思和反思来理解法律实践的复杂性。本文讨论了在培养全面律师的过程中,反思可以被教授的一系列方式,以强调价值观、情感、思维和分析技能的结合。认可大脑不断变化和成长能力的成长心态是我们对智力理解的一个根本和积极的发展,有助于培养律师反思并继续履行其道德义务的能力,以某种形式努力实现正义。
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引用次数: 1
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Legal Ethics
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