Pub Date : 2017-07-03DOI: 10.1080/1460728X.2017.1405781
B. Cooper
{"title":"Technological competence and the duty to safeguard confidential information in the USA","authors":"B. Cooper","doi":"10.1080/1460728X.2017.1405781","DOIUrl":"https://doi.org/10.1080/1460728X.2017.1405781","url":null,"abstract":"","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.2017.1405781","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46912567","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.2017.1397401
B. Wolski
ABSTRACT This article critically examines the practice and ethical underpinnings of Collaborative Law (CL), one of the newest processes in the ADR suite of options available to parties in dispute. CL has been described as mediation without the mediator. The parties and their lawyers agree to negotiate in good faith and in a cooperative non-adversarial manner without the assistance of a mediator. However, controversially, they also agree that if settlement is not reached, the lawyers are to withdraw and be disqualified from representing the parties in any subsequent litigation. The parties must engage new lawyers and often new expert witnesses if they wish to proceed with litigation. In this article, the author highlights the potential for CL lawyers to exert undue pressure on their clients as the goal of settlement is given priority over the interests of the clients. The article describes the main features of CL, its contractual supports, its potential benefits and the potential for its abuse.
{"title":"Collaborative Law: an (un)ethical process for lawyers?","authors":"B. Wolski","doi":"10.1080/1460728x.2017.1397401","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1397401","url":null,"abstract":"ABSTRACT This article critically examines the practice and ethical underpinnings of Collaborative Law (CL), one of the newest processes in the ADR suite of options available to parties in dispute. CL has been described as mediation without the mediator. The parties and their lawyers agree to negotiate in good faith and in a cooperative non-adversarial manner without the assistance of a mediator. However, controversially, they also agree that if settlement is not reached, the lawyers are to withdraw and be disqualified from representing the parties in any subsequent litigation. The parties must engage new lawyers and often new expert witnesses if they wish to proceed with litigation. In this article, the author highlights the potential for CL lawyers to exert undue pressure on their clients as the goal of settlement is given priority over the interests of the clients. The article describes the main features of CL, its contractual supports, its potential benefits and the potential for its abuse.","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.2017.1397401","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47917613","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.2017.1397403
G. Ferris, N. Johnson
ABSTRACT Political rule depends upon public discourse as it requires negotiation and compromise of conflicting interests. Public discourse includes activities that can be described as cause lawyering, lobbying, and rule entrepreneurship. The rule of law supports public discourse through, inter alia, the right to petition. The right to petition requires identification of those engaged in public discourse through petition. This requirement reflects a principle of general application. Solicitors owe an ethical duty to support the rule of law, including the right to petition. Lawyers without a specific duty to uphold the rule of law have ethical duties to maintain the reputation of the legal system and their legal profession. Lawyers, including solicitors, are frequent contributors to public discourse. Lawyers sometimes resist identifying the clients or client groups they represent in public discourse on the ground of the need to protect client confidentiality. This resistance is not ethically well reasoned, and lawyers should recognise a duty to disclose the identity of a client or client group for whom the lawyer is making representations in any public arena, understanding public arena to include both representations to public office holders (lobbying) and contributions to reform campaigns or consultations (cause lawyering or rule entrepreneurship).
{"title":"Should lawyers acknowledge whom they represent in public discourse?","authors":"G. Ferris, N. Johnson","doi":"10.1080/1460728x.2017.1397403","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1397403","url":null,"abstract":"ABSTRACT Political rule depends upon public discourse as it requires negotiation and compromise of conflicting interests. Public discourse includes activities that can be described as cause lawyering, lobbying, and rule entrepreneurship. The rule of law supports public discourse through, inter alia, the right to petition. The right to petition requires identification of those engaged in public discourse through petition. This requirement reflects a principle of general application. Solicitors owe an ethical duty to support the rule of law, including the right to petition. Lawyers without a specific duty to uphold the rule of law have ethical duties to maintain the reputation of the legal system and their legal profession. Lawyers, including solicitors, are frequent contributors to public discourse. Lawyers sometimes resist identifying the clients or client groups they represent in public discourse on the ground of the need to protect client confidentiality. This resistance is not ethically well reasoned, and lawyers should recognise a duty to disclose the identity of a client or client group for whom the lawyer is making representations in any public arena, understanding public arena to include both representations to public office holders (lobbying) and contributions to reform campaigns or consultations (cause lawyering or rule entrepreneurship).","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.2017.1397403","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47887609","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 : 2017-03-24DOI: 10.1080/1460728x.2017.1292623
Andrew Higgins
ABSTRACT This article critically examines the value and scope of the cab rank rule in England and Australia. Despite the laudable non-discrimination principle underpinning it, the cab rank rule is subject to so many exceptions it is debatable whether the rule has any effect, positive or negative, on access to justice. On the other hand, when the rule is followed, it has the potential to unnecessarily distort the legal services market. Despite legitimate questions about its continued relevance, the paper argues that the rationale for the cab rank rule remains critically important in an age where most people are unable to afford private legal representation and are ineligible for public legal assistance. The cab rank rule could play a greater role in delivering access to justice for all, by ‘rebooting’ it as a limited universal service obligation to provide legal representation for all who genuinely need it but cannot obtain it privately. In practice this would involve the creation of a compartmentalised public cab rank in which all practising lawyers dedicate a small percentage of their billable hours to representing eligible clients for a regulated fee.
{"title":"Rebooting the cab rank rule as a limited universal service obligation","authors":"Andrew Higgins","doi":"10.1080/1460728x.2017.1292623","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1292623","url":null,"abstract":"ABSTRACT This article critically examines the value and scope of the cab rank rule in England and Australia. Despite the laudable non-discrimination principle underpinning it, the cab rank rule is subject to so many exceptions it is debatable whether the rule has any effect, positive or negative, on access to justice. On the other hand, when the rule is followed, it has the potential to unnecessarily distort the legal services market. Despite legitimate questions about its continued relevance, the paper argues that the rationale for the cab rank rule remains critically important in an age where most people are unable to afford private legal representation and are ineligible for public legal assistance. The cab rank rule could play a greater role in delivering access to justice for all, by ‘rebooting’ it as a limited universal service obligation to provide legal representation for all who genuinely need it but cannot obtain it privately. In practice this would involve the creation of a compartmentalised public cab rank in which all practising lawyers dedicate a small percentage of their billable hours to representing eligible clients for a regulated fee.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2017.1292623","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46516627","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 : 2017-03-23DOI: 10.1080/1460728x.2017.1295509
R. Wu
ABSTRACT This article investigates empirically the ethical values of law students in Hong Kong in their final two years of legal education. It first analyses the demographics of these law students before examining their responses to different ethical dilemmas. The findings suggest that feminisation has taken place in Hong Kong law schools. The study also found that a new generation of law students is emerging in Hong Kong that put more emphasis on the value of work-life balance. Finally, the article argues that common law education has enhanced the professionalism of law students in Hong Kong and has contributed to their development of such professional values as ‘professional integrity’, ‘obedience to the law’ and ‘civil duty’.
{"title":"An empirical study of Hong Kong law students’ ethical values: Does common law education enhance their professionalism?","authors":"R. Wu","doi":"10.1080/1460728x.2017.1295509","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1295509","url":null,"abstract":"ABSTRACT This article investigates empirically the ethical values of law students in Hong Kong in their final two years of legal education. It first analyses the demographics of these law students before examining their responses to different ethical dilemmas. The findings suggest that feminisation has taken place in Hong Kong law schools. The study also found that a new generation of law students is emerging in Hong Kong that put more emphasis on the value of work-life balance. Finally, the article argues that common law education has enhanced the professionalism of law students in Hong Kong and has contributed to their development of such professional values as ‘professional integrity’, ‘obedience to the law’ and ‘civil duty’.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2017.1295509","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47213462","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 : 2017-01-02DOI: 10.1080/1460728X.2017.1346550
A. Woolley
On March 8, 2017, the Canadian Judicial Council (“CJC”) recommended that Justice Robin Camp – who asked a complainant in a rape trial, “Why couldn’t you just keep your knees together?” – be removed from the bench. Camp resigned that day, becoming only the third federally appointed judge in Canadian history to do so. This comment, an abbreviated version of which is forthcoming in Legal Ethics, sets out the background for the complaint to the CJC, summarizes the process before the CJC and its decisions, and offers some broader context and reflections.
{"title":"The resignation of Robin Camp: background and reflections from Canada","authors":"A. Woolley","doi":"10.1080/1460728X.2017.1346550","DOIUrl":"https://doi.org/10.1080/1460728X.2017.1346550","url":null,"abstract":"On March 8, 2017, the Canadian Judicial Council (“CJC”) recommended that Justice Robin Camp – who asked a complainant in a rape trial, “Why couldn’t you just keep your knees together?” – be removed from the bench. Camp resigned that day, becoming only the third federally appointed judge in Canadian history to do so. This comment, an abbreviated version of which is forthcoming in Legal Ethics, sets out the background for the complaint to the CJC, summarizes the process before the CJC and its decisions, and offers some broader context and reflections.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728X.2017.1346550","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48620195","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 : 2017-01-02DOI: 10.1080/1460728x.2017.1348007
R. Mortensen
ABSTRACT Australia has recently experienced what many regard as its greatest judicial crisis. The appointment of Timothy Carmody QC as Chief Justice of Queensland in 2014 emerged from a process that was tainted by the state government’s willingness to break confidences gained in the course of consultation for the appointment. Equally, a strongly negative and heterodox reaction to the appointment by the whole Queensland Supreme Court bench meant that, together, politicians and judges brought on a collapse of the traditional ethics surrounding judicial appointments. Nevertheless, the extreme circumstances of the Carmody affair suggest that, where judges have a legitimate concern that a judicial appointment might put a fundamental constitutional value like judicial independence at risk, a court may be justified in publically expressing concern about the appointment.
{"title":"How many chief justices? Judicial appointments and ethics in Queensland","authors":"R. Mortensen","doi":"10.1080/1460728x.2017.1348007","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1348007","url":null,"abstract":"ABSTRACT Australia has recently experienced what many regard as its greatest judicial crisis. The appointment of Timothy Carmody QC as Chief Justice of Queensland in 2014 emerged from a process that was tainted by the state government’s willingness to break confidences gained in the course of consultation for the appointment. Equally, a strongly negative and heterodox reaction to the appointment by the whole Queensland Supreme Court bench meant that, together, politicians and judges brought on a collapse of the traditional ethics surrounding judicial appointments. Nevertheless, the extreme circumstances of the Carmody affair suggest that, where judges have a legitimate concern that a judicial appointment might put a fundamental constitutional value like judicial independence at risk, a court may be justified in publically expressing concern about the appointment.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2017.1348007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43171784","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 : 2017-01-02DOI: 10.1080/1460728x.2017.1326433
G. Appleby
As the heat of the 2016 election campaign between Donald Trump and Hillary Clinton was dialling up, US Supreme Court Justice Ruth Bader Ginsburg made a surprise – and arguably unprecedented – inter...
{"title":"Justice Ginsburg, President Trump, and the need for judicial disqualification reform","authors":"G. Appleby","doi":"10.1080/1460728x.2017.1326433","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1326433","url":null,"abstract":"As the heat of the 2016 election campaign between Donald Trump and Hillary Clinton was dialling up, US Supreme Court Justice Ruth Bader Ginsburg made a surprise – and arguably unprecedented – inter...","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2017.1326433","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43434448","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 : 2017-01-02DOI: 10.1080/1460728x.2017.1352207
Ameze Guobadia
ABSTRACT The power to appoint judges and the formal procedure for judicial appointments in Nigeria have been examined by writers, particularly in the context of separation of powers. Shortcomings in the conduct of some judicial officers and the poor performance of some courts continue to generate questions about the suitability of the current appointments process in the quest for a sound judiciary founded on integrity and competence. The article argues that what is missing is due regard for ethics in the appointments process. This point, often overlooked or down played by writers, should be considered by the key players in the appointments process. The article examines the ethical dimensions of the judicial appointments process within the dynamics of the composition and operation of the special judicial bodies and other groups from which these bodies receive nominations for judicial appointments.
{"title":"Ethical considerations in judicial appointments in Nigeria: the role of special judicial bodies*","authors":"Ameze Guobadia","doi":"10.1080/1460728x.2017.1352207","DOIUrl":"https://doi.org/10.1080/1460728x.2017.1352207","url":null,"abstract":"ABSTRACT The power to appoint judges and the formal procedure for judicial appointments in Nigeria have been examined by writers, particularly in the context of separation of powers. Shortcomings in the conduct of some judicial officers and the poor performance of some courts continue to generate questions about the suitability of the current appointments process in the quest for a sound judiciary founded on integrity and competence. The article argues that what is missing is due regard for ethics in the appointments process. This point, often overlooked or down played by writers, should be considered by the key players in the appointments process. The article examines the ethical dimensions of the judicial appointments process within the dynamics of the composition and operation of the special judicial bodies and other groups from which these bodies receive nominations for judicial appointments.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2017.1352207","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41310103","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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