Pub Date : 2018-01-02DOI: 10.1080/1460728x.2018.1509042
Suzanne M. Le Mire
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Pub Date : 2018-01-02DOI: 10.1080/1460728x.2018.1503004
Rachel Spencer
ABSTRACT Courts are starting to keep data about the numbers of litigants who personally file court documents and appear without counsel. The growth in numbers of unrepresented litigants is aptly described as a phenomenon and can be attributed to various causes. Whether or not it is a ‘problem’ however, is arguable. This article explores the concept of the unrepresented litigant in a strange and unnavigable milieu and the ethical duties of lawyers as officers of the court in that context. Focussing on Australian examples, the primary aim of the article is to highlight the lack of guidance in both codes of ethical conduct and judicial commentary on ethical issues for lawyers faced with an unrepresented opponent. Ethical issues at various stages of the dispute resolution process are discussed, including the complexities involved with unbundled legal services. The author argues that as an officer of the court, counsel should assist the judicial officer and consider the situation through a lens of ethical reasoning, while recognising the dilemma this can pose for lawyers who must respect their duties to their own clients. The article concludes that lawyers must abide by their ethical responsibilities whether or not the opponent has representation, while acknowledging that this may be challenging for a variety of reasons. It also suggests that the absence of any reference to unrepresented litigants in ethical codes of conduct should be addressed.
{"title":"Deferring to the ‘unlearned’ friend: professional ethics and the unrepresented litigant","authors":"Rachel Spencer","doi":"10.1080/1460728x.2018.1503004","DOIUrl":"https://doi.org/10.1080/1460728x.2018.1503004","url":null,"abstract":"ABSTRACT Courts are starting to keep data about the numbers of litigants who personally file court documents and appear without counsel. The growth in numbers of unrepresented litigants is aptly described as a phenomenon and can be attributed to various causes. Whether or not it is a ‘problem’ however, is arguable. This article explores the concept of the unrepresented litigant in a strange and unnavigable milieu and the ethical duties of lawyers as officers of the court in that context. Focussing on Australian examples, the primary aim of the article is to highlight the lack of guidance in both codes of ethical conduct and judicial commentary on ethical issues for lawyers faced with an unrepresented opponent. Ethical issues at various stages of the dispute resolution process are discussed, including the complexities involved with unbundled legal services. The author argues that as an officer of the court, counsel should assist the judicial officer and consider the situation through a lens of ethical reasoning, while recognising the dilemma this can pose for lawyers who must respect their duties to their own clients. The article concludes that lawyers must abide by their ethical responsibilities whether or not the opponent has representation, while acknowledging that this may be challenging for a variety of reasons. It also suggests that the absence of any reference to unrepresented litigants in ethical codes of conduct should be addressed.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2018.1503004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45728783","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 : 2018-01-02DOI: 10.1080/1460728x.2018.1502965
N. Ries
ABSTRACT Elder abuse is a serious and under-detected problem. Law reform agencies and legal profession regulatory authorities have called for action to ensure that lawyers meet their ethical obligations to older clients, including identifying and acting on risk factors for abuse. Screening tools to detect situations of elder abuse exist, but they are targeted mainly at health and social care practitioners. Drawing on international literature, this article identifies and discusses screening tools that could be adapted for use by legal professionals. Three general categories of screening are relevant for lawyers who serve older clients: (1) elder abuse screening tools that cover all domains of abuse or target specific behaviours, such as financial exploitation; (2) screening for decision-making capacity, especially taking account of the impact of abuse or neglect on capacity; and (3) screening to probe the suitability of a person to act in a formal decision-making role for an older person. The article emphasises the importance of implementing screening processes and follow-up actions in a manner that fosters a therapeutic relationship between the older client and the lawyer. It concludes with recommendations for further research in this important area.
{"title":"Elder abuse and lawyers’ ethical responsibilities: incorporating screening into practice","authors":"N. Ries","doi":"10.1080/1460728x.2018.1502965","DOIUrl":"https://doi.org/10.1080/1460728x.2018.1502965","url":null,"abstract":"ABSTRACT Elder abuse is a serious and under-detected problem. Law reform agencies and legal profession regulatory authorities have called for action to ensure that lawyers meet their ethical obligations to older clients, including identifying and acting on risk factors for abuse. Screening tools to detect situations of elder abuse exist, but they are targeted mainly at health and social care practitioners. Drawing on international literature, this article identifies and discusses screening tools that could be adapted for use by legal professionals. Three general categories of screening are relevant for lawyers who serve older clients: (1) elder abuse screening tools that cover all domains of abuse or target specific behaviours, such as financial exploitation; (2) screening for decision-making capacity, especially taking account of the impact of abuse or neglect on capacity; and (3) screening to probe the suitability of a person to act in a formal decision-making role for an older person. The article emphasises the importance of implementing screening processes and follow-up actions in a manner that fosters a therapeutic relationship between the older client and the lawyer. It concludes with recommendations for further research in this important area.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2018.1502965","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49358350","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 : 2018-01-02DOI: 10.1080/1460728x.2018.1503005
Anna Cody
ABSTRACT Legal ethics teaching can be enriched and deepened when students experience legal practice through, for example, client interviews. Further, many legal educators are committed to encouraging their students’ commitment to contribute to the community through making the law and legal system fairer. One means of achieving this goal is by introducing a clinical component into a legal ethics course. Empirical research conducted with current students in Australia, analyses students’ changing understandings of ethical values and practice when conducting legal interviews. The article discusses the relationship between an ‘ethic of care’ and concepts of ‘justice’, examined through students’ experiences of client interviewing. It also examines students’ commitment to the justice system, including the finding that their commitment to making law fairer is reinforced through working with disadvantaged clients.
{"title":"Interviewing real clients and the ways it deepens students’ understandings of legal ethics","authors":"Anna Cody","doi":"10.1080/1460728x.2018.1503005","DOIUrl":"https://doi.org/10.1080/1460728x.2018.1503005","url":null,"abstract":"ABSTRACT Legal ethics teaching can be enriched and deepened when students experience legal practice through, for example, client interviews. Further, many legal educators are committed to encouraging their students’ commitment to contribute to the community through making the law and legal system fairer. One means of achieving this goal is by introducing a clinical component into a legal ethics course. Empirical research conducted with current students in Australia, analyses students’ changing understandings of ethical values and practice when conducting legal interviews. The article discusses the relationship between an ‘ethic of care’ and concepts of ‘justice’, examined through students’ experiences of client interviewing. It also examines students’ commitment to the justice system, including the finding that their commitment to making law fairer is reinforced through working with disadvantaged clients.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2018.1503005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48848790","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 : 2018-01-02DOI: 10.1080/1460728X.2018.1493070
L. Barry
ABSTRACT Lawyers are increasingly called upon to deal with older clients and have ethical responsibilities to attest to their capacity for legal decision-making. As witnesses to enduring documents, the making of wills and other significant advance planning transactions, lawyers play a role in preventing elder abuse and in upholding the rights of older people. To date however, there has been very little empirical research examining how lawyers assess an older person’s legal decision-making capacity. This article presents research examining three years of capacity complaints made to the New South Wales Office of Legal Services Commissioner. Four case studies from the complaint files expose some common failings in the way that lawyers interact with older clients who have experienced cognitive impairment. The process of capacity assessment is viewed through the theoretical lens of vulnerability to highlight how the actions of lawyers and regulators can exacerbate the inherent and situational vulnerability of older people with a cognitive impairment. The author argues that improvements in capacity guidelines, legal education and robust enforcement of ethical rules are required to safeguard the rights of older clients and help prevent abuse. The findings will have implications for lawyers and regulators everywhere dealing with an ageing population.
{"title":"‘He was wearing street clothes, not pyjamas’: common mistakes in lawyers’ assessment of legal capacity for vulnerable older clients","authors":"L. Barry","doi":"10.1080/1460728X.2018.1493070","DOIUrl":"https://doi.org/10.1080/1460728X.2018.1493070","url":null,"abstract":"ABSTRACT Lawyers are increasingly called upon to deal with older clients and have ethical responsibilities to attest to their capacity for legal decision-making. As witnesses to enduring documents, the making of wills and other significant advance planning transactions, lawyers play a role in preventing elder abuse and in upholding the rights of older people. To date however, there has been very little empirical research examining how lawyers assess an older person’s legal decision-making capacity. This article presents research examining three years of capacity complaints made to the New South Wales Office of Legal Services Commissioner. Four case studies from the complaint files expose some common failings in the way that lawyers interact with older clients who have experienced cognitive impairment. The process of capacity assessment is viewed through the theoretical lens of vulnerability to highlight how the actions of lawyers and regulators can exacerbate the inherent and situational vulnerability of older people with a cognitive impairment. The author argues that improvements in capacity guidelines, legal education and robust enforcement of ethical rules are required to safeguard the rights of older clients and help prevent abuse. The findings will have implications for lawyers and regulators everywhere dealing with an ageing population.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728X.2018.1493070","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48693133","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 : 2017-12-13DOI: 10.1080/1460728X.2017.1415113
A. Dodek
Lawyers do not ‘do change’ particularly well. Canadian lawyers and the Canadian legal profession are especially averse to change. On this front we in the Canadian legal academy share more in common...
{"title":"Challenge and change in the Canadian legal profession","authors":"A. Dodek","doi":"10.1080/1460728X.2017.1415113","DOIUrl":"https://doi.org/10.1080/1460728X.2017.1415113","url":null,"abstract":"Lawyers do not ‘do change’ particularly well. Canadian lawyers and the Canadian legal profession are especially averse to change. On this front we in the Canadian legal academy share more in common...","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728X.2017.1415113","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47027139","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 : 2017-07-03DOI: 10.1080/1460728x.2017.1405782
Matthias Kilian
On 1 January 2018 an omnibus law dealing with issues ranging from construction law to the use of digital seals for the land register will introduce changes to the federal law on the constitution of the courts (Gerichtsverfassungsgesetz). It will establish specialised chambers at the High Courts (Landgerichte) and specialised senates at the Courts of Appeal (Oberlandesgerichte) for a number of areas of law. Specialisation is one of the defining developments of the German legal profession of the past decades. It will for the first time make significant inroads into the courts of general jurisdiction (Gerichte der ordentlichen Gerichtsbarkeit). Disputes arising from banking and financial transactions, from construction and architectural contracts, from therapeutic treatments by health professionals and arising from relationships governed by insurance contracts will henceforth be heard at specialised chambers and senates every court has to establish pursuant to the new law. While special branches of the courts of general jurisdiction were established in the past – the family court (Familiengericht), the insolvency court (Insolvenzgericht), the criminal court (Strafgericht) – because of their specific procedural rules, no similar rationale existed for the specialisation within the main branch of the courts of general jurisdiction that hears cases according to the Code of Civil Procedure (Zivilprozessordnung). While some informal specialisation was possible through the assignment of cases to a specific chamber or senate, this was a decision each court would make independently and could alter on an annual basis. The general idea was, however, that judges should be able to hear all kinds of civil cases. This approach pretty much was in line with the traditional concept of legal practice and legal education in Germany: Well into the twentieth century, being a lawyer meant for most practitioners being a generalist dealing with various areas of law. This was, to a certain degree, the logical continuation of the philosophy behind legal education in Germany: With a state legal examination instead of university degrees in law (which typically allow students some specialisation on preferred subjects) and a post-graduate legal clerkship (Rechtsferendariat) that covers the practice of all the main legal professions
2018年1月1日，一项涉及从建筑法到土地登记数字印章使用等问题的综合法律将对联邦法院宪法进行修改（Gerichtsverfasungsgesetz）。它将在高等法院（Landgerichte）设立专门的分庭，并在上诉法院（Oberlandesgerichte）设立多个法律领域的专门参议院。专业化是过去几十年来德国法律职业的决定性发展之一。它将首次在具有一般管辖权的法院取得重大进展（Gerichte der ordentlichen Gerichtsbarkit）。银行和金融交易、建筑和建筑合同、卫生专业人员的治疗以及保险合同管辖的关系引起的争议，将在每个法院必须根据新法律设立的专门分庭和参议院进行审理。虽然过去设立了具有一般管辖权的法院的特别分支机构——家庭法院（Familiengericht）、破产法院（Insolvenzgericht，根据《民事诉讼法》（Zivilprozessordnung）审理案件的一般管辖法院的主要分支内部不存在类似的专门化理由。虽然可以通过将案件分配给特定的议院或参议院来进行一些非正式的专门化，但这是每个法院将独立做出的决定，并且可以每年进行更改。然而，总的想法是，法官应该能够审理各种民事案件。这种方法在很大程度上符合德国法律实践和法律教育的传统概念：早在二十世纪，作为一名律师，对大多数从业者来说意味着成为一名处理各种法律领域的多面手。在某种程度上，这是德国法律教育背后哲学的逻辑延续：通过国家法律考试而不是大学法律学位（通常允许学生在首选科目上有一些专业化），以及涵盖所有主要法律职业实践的研究生法律文书（Rechtsferendariat）
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Pub Date : 2017-07-03DOI: 10.1080/1460728x.2017.1397402
P. Baron, L. Corbin
ABSTRACT A lawyer's behaviour derives from their own principles and values, the norms of professionalism, the professional conduct rules and the common law. In the past, much emphasis has been placed upon the first two sources as they formed the basis of self-regulation and influenced the development of legal ethics. Recently, the Australian codes of ethics explicitly detail an increasing range of duties which might reasonably have been thought to be implicit characteristics of sound ethical values and professionalism, for example, a duty to be civil, and an explicit prohibition against harassment, intimidation and bullying. Such additions have been deemed necessary as a response to increasing concerns about lawyer incivility and empirical reports detailing high levels of harassment, intimidation and bullying within law firms. We suggest that the expansion of duties in the codes raises intriguing and troubling questions: Does the expansion of duties in the codes suggest that lawyers, as a group, need rules to act virtuously and professionally? And if so, has this always been the case, or have external factors such as an increasingly complex environment, the rise of commercialism and an increasingly diverse profession, changed the way lawyers see themselves both as moral agents and as professionals?
{"title":"The unprofessional professional: do lawyers need rules?","authors":"P. Baron, L. Corbin","doi":"10.1080/1460728x.2017.1397402","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1397402","url":null,"abstract":"ABSTRACT A lawyer's behaviour derives from their own principles and values, the norms of professionalism, the professional conduct rules and the common law. In the past, much emphasis has been placed upon the first two sources as they formed the basis of self-regulation and influenced the development of legal ethics. Recently, the Australian codes of ethics explicitly detail an increasing range of duties which might reasonably have been thought to be implicit characteristics of sound ethical values and professionalism, for example, a duty to be civil, and an explicit prohibition against harassment, intimidation and bullying. Such additions have been deemed necessary as a response to increasing concerns about lawyer incivility and empirical reports detailing high levels of harassment, intimidation and bullying within law firms. We suggest that the expansion of duties in the codes raises intriguing and troubling questions: Does the expansion of duties in the codes suggest that lawyers, as a group, need rules to act virtuously and professionally? And if so, has this always been the case, or have external factors such as an increasingly complex environment, the rise of commercialism and an increasingly diverse profession, changed the way lawyers see themselves both as moral agents and as professionals?","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2017.1397402","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41716968","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 : 2017-07-03DOI: 10.1080/1460728x.2017.1402450
T. Moqbel
The study of comparative ethics helps to provide insights into the ethical categories used by scholars of other traditions,1 and shows how ethical theories converge and diverge. This comment presen...
{"title":"The moral interpretation of law: comparative remarks on Dworkin’s legal principles and Islamic law’s Maqāṣid","authors":"T. Moqbel","doi":"10.1080/1460728x.2017.1402450","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1402450","url":null,"abstract":"The study of comparative ethics helps to provide insights into the ethical categories used by scholars of other traditions,1 and shows how ethical theories converge and diverge. This comment presen...","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2017.1402450","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47942237","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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