Responsibilities Of Lawyers Research Articles

ПРАВО АДВОКАТА НА СВОБОДУ ВИРАЖЕННЯ ПОГЛЯДІВ У ПРАКТИЦІ ЄВРОПЕЙСЬКОГО СУДУ З ПРАВ ЛЮДИНИ

The article considers some issues of normative regulation of lawyers' right to freedom of expression in correlation with the right to respect for private life in the context of potential harmonization of domestic legislation with European standards in the field of human rights and freedoms, which indicates the relevance of this study. The presented scientific work analyzes in detail the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, relevant international documents, as well as the case law of the European Court of Human Rights on this topic. Based on a thorough study of the current legislation of Ukraine and existing case law, the exceptional role of lawyers and their professional associations in the administration of justice has been clarified. An integral part of the article is a general description of the rights and responsibilities of lawyers, guarantees of their activities, with a strong emphasis on the constitutional right of a person to freedom of expression in various spheres of life and a specific algorithm for its implementation. In the course of scientific research, the need to strictly follow the special procedure for bringing a lawyer to disciplinary responsibility for violating the oath of a lawyer of Ukraine and the rules of lawyer's ethics has been repeatedly emphasized. The proposals formulated in the article are aimed at further improving the outlined provisions of the current thematic legislation of Ukraine in terms of regulation of the convention rights of members of the legal community to freedom of expression and respect for privacy in their professional duties in various categories of justice. Substantiated recommendations are provided on the optimal application of certain provisions of national legislation, which indicate the practical significance of the results of the study.

World Lawyers’ Pledge on Climate Action†

The World Lawyers’ Pledge on Climate Action is an open letter from and to the global legal community, calling for the mainstreaming of climate concerns throughout the law and legal profession. It seeks to rethink and redefine the role and responsibilities of lawyers in the climate crisis, and invites lawyers of all kinds —including practitioners, judges, scholars, civil servants, law students, and lawmakers—to integrate climate concerns into their respective areas of expertise and work. The magnitude and urgency of the climate crisis require all lawyers, not just environmental lawyers, to be part of the solution and contribute to climate-protective legal development. The Pledge can be endorsed and signed at http://www.lawyersclimatepledge.org.

Statistical Interpretation of DNA Evidence in the Judicial Practice of Montenegro

Implementation of scientific methods in establishing facts relevants for criminalistics and legal proceedings can no longer be imagined without involving forensic examination of biological traces through analysis of DNA molecules. Legal norms for reaching a verdict bases on DNA evidance must be clearly set, and the interpretation and presentation of DNA evidence in court must be improved. Also, judges, prosecutors, lawyers must be constantly acquainted with and educated on the basics of forensics and the use of scientific evidence, in order to properly understand the DNA result and make correct judgments. Missing out some statistic-related facts and probability theory have led to certain legal omissions in both recent and past experience.
 Our goal with this article is to emphasize the importance of probability theories and statistics in forensic examination, particularly in interpretation of DNA results. Judges and lawyers accept the evidence based on their sense of reasoning. A necessary part is their greater participation and understanding of forensic reports and with the way of interpreting the evidence itself. It is responsibility of lawyers, judges and prosecutors is to understand the statistical evidence as much as possible. Standards of admissibility in court must be legally determined, and statistics and probability theory should be explained in detail to judges so they can make valid judgments.

Legal regulation of lawyers’ activities according to Justinian’s Digests

The article examines the normative regulation of the lawyers’ activities in accordance with the Digests as part of the Codifi cation carried out during the reign and under the leadership of Emperor Justinian the Great. This study is the continuing research on legal regulation activities of lawyers in accordance with the norms of the Code as the main legislative part of the Codifi cation, taking into account that that the legal regulation of public relations by norms of Digests was subsidiary to the regulation of their norms of the Code, but, nevertheless, the norms of Digests had an independent legal signifi cance. It outlines the main aspects, the regulation of which is contained in the Digests — the grounds and measures of disciplinary responsibility of lawyers, misdemeanors for which lawyers were subject to responsibility, grounds for appointing lawyers at the initiative of the court, issues of fee practice — and the norms regulating these aspects. All these issues are discussed in details in the context of the relationship between the advocacy and administrative justice system of the Roman Empire that had a signifi cant importance, since the bar, without having an independent corporate organization, was subordinate to the offi cials, governed administrative-territorial units Empires of various levels. At the same time, the importance of the rules under consideration is emphasized, which represent the opinions of lawyers that have received the force of law and provide an opportunity for conducting a comparative legal study of the problems of the advocacy.

Many Voices in China’s Legal Profession: Plural Meanings of Weiquan

Figuring prominently in prevailing portraits of activism and political contention in contemporary China are weiquan [rights defense] lawyers. Outside of China, the word weiquan emerged in the early 2000s and had achieved near-hegemonic status by the late 2000s as a descriptive label for a corps of activist lawyers—who numbered between several dozen and several hundred—committed to the cause and mobilizing in pursuit of human rights protections vis-à-vis China’s authoritarian party-state. This article challenges the dominant nomenclature of Chinese activism, in which weiquan in general and weiquan lawyers in particular loom large. A semantic history of the word weiquan, traced through an analysis of four decades of officially sanctioned rights discourse, reveals its politically legitimate origins in the official lexicon of the party-state. Unique survey data collected in 2009 and 2015 demonstrate that Chinese lawyers generally understood the word in terms of the party-state’s official language of rights, disseminated through its ongoing public legal education campaign. Because the officially-sanctioned meaning of weiquan, namely “to protect citizens’ lawful rights and interests,” is consistent with the essential professional responsibility of lawyers, fully half of a sample of almost 1,000 practicing lawyers from across China self-identified as weiquan lawyers. Such a massive population of self-identified weiquan lawyers—approximately 80,000 in 2009 assuming that the sample is at least reasonably representative—makes sense only if local meanings of the term profoundly diverge from its dominant English-language representations. Concluding speculations consider and call for further research on why this word was appropriated and redefined by activist Chinese lawyers in the first place.

N. R. Madhava Menon: A Global Justice Educator’s Approach to Training Clinical Law Teachers

This article describes one aspect of Dr N. R. Madhava Menon’s lifelong commitment to bringing ‘socially relevant legal education’ to India and around the world, whereby lawyers would be trained not just in the rules of law but also in the social and ethical responsibilities of lawyers to the society at large. Over the course of more than 25 years, the author collaborated with Dr Menon in training of law teachers in clinical methods and, in particular, in the incorporation of social justice into law school clinical and legal aid programs. A key element of their collaboration was the development of the concept of a clinical method for training clinical law teachers that could be used in training-of-trainers (TOT) workshops throughout the world, including those run by national, regional, and international clinical organizations. The result was a model for the training of clinical law teachers based on what the author and Dr Menon described elsewhere as three defining qualities of the global clinical movement: Its professional educational mission, its methodology, and its commitment to reforming legal education by reorienting it toward educating lawyers for social justice. The article concludes with a description of their model that emphasizes the setting for the training, preparing the trainee teachers for the training, the use of training by doing, and the importance of reflection and critique in the successful generalization of students’ clinical learning.

Rhetorical Criticism as Essential Legal Skill: Some Thoughts on Developing Lawyers as 'Public Citizens'

The Model Rules of Professional Conduct for lawyers, upon which nearly all fifty state supreme courts base their legal ethics codes, direct lawyers to pursue the public good in their role as "public citizen[s] with special responsibility for justice." Yet, the lawyer as a public citizen is undertheorized in the literature and is not the focus of legal education. And even if this role is deemed important, questions remain of what, exactly, is the lawyer's responsibility as a "public citizen" and what skills a lawyer should possess to fulfill this role.This talk first describes how the Model Rules of Professional Conduct — the lawyer's ethical rules — rhetorically construct the public citizen role but offer little on how the lawyer should implement this role in her professional life. It then offers how others have attempted to put flesh on the bones of the "public citizen" role so as to have as complete a view as possible of what that role means for lawyers. It explains the generally well-accepted view that law schools have largely failed to teach skills and instill values related to lawyers' roles as public citizens. And, finally, it argues that teaching rhetorical criticism skills in law school can play a central part in giving lawyers the intellectual skills to perform their roles as fiduciaries of the rule of law and participatory democracy and to understand themselves as moral actors in the public sphere.

On the responsibility of lawyers for breach of contractual obligations to provide legal assistance

On the responsibility of lawyers for breach of contractual obligations to provide legal assistance

The Debate over Open Communion in the Episcopal Church: Ecclesiastical Disobedience or Lawlessness?

Lawyers and priests are both vested in their office by a licensing authority and take oaths to obey the law, whether civil or ecclesiastical, that governs. Within these similar settings, the appropriate authority may need to judge disobedience by the lawyer or priest. If obedience is not enforced, respect for the law will decline and lawlessness ensues. In the Episcopal Church, it is black-letter law that only the baptised may receive communion. Notwithstanding the law, priests in ever-increasing numbers are inviting all to the table. Against what standard is such conduct to be judged? The Constitution and Canons are silent. Is the standard therefore to be merely the fact that the priest thinks he or she is following the dictates of the Holy Spirit? Or is there a real standard for judgment? Perhaps the gloss around civil disobedience and the rules of professional responsibility of lawyers may provide a more objective guide. This article discusses the debate over open table and the current black-letter law, and considers ecclesiastical disobedience under the guidance of the standards for legitimate civil disobedience. In addition, it considers the apparent desire of the bishops for the best of all possible worlds – having a law that the greater Church will appreciate, but then not enforcing it. The result may be more table fellowship but also anarchy.

The Future of Food Law & Policy: The Responsibility of Lawyers in the Academy and Beyond

Food Law & Policy is a flourishing legal field that is fast approaching the tenth anniversary of its inception. The field boasts several key milestones. The first Food Law & Policy course was taught in 2004. The first scholarly journal devoted to the field was created in 2005. And, the first Food Law & Policy legal clinic was established in 2010. Today, interest in the field among legal scholars and law students alike is so widespread that a 2013 news article reported “there may be no hotter topic in law schools right now than food law and policy.” Food Law & Policy incorporates elements from the study of traditional food and drug law as well as elements from the study of traditional agricultural law. It intersects with a new approach to agricultural law studies that involves a more holistic approach including sustainability and a food systems analysis.This article was prepared for the Yale University Food Systems Symposium. It was written by faculty members at several law schools that have made commitments to Food Law & Policy, and it describes their programs and their approach.

BOOK REVIEWS

Books reviewed in this issue. Visions of America PAUL AUERBACHGood Capitalism, Bad Capitalism and the Economics of Growth and Prosperity, by William J. Baumol, Robert E. Litan and Carl J. Schramm.The Challenge of Affluence Self‐control and Well‐being in the United States and Britain since 1950, by Avner Offer. A great world disorder Andrew Gamble Global Challenges for Leviathan: A Political Philosophy of Nuclear Weapons and Global Warming, by Furio Cerutti. Let's do it by lot Andrew Blick The Athenian Option: Radical Reform for the House of Lords, by Anthony Barnett and Peter Carty. A People's Parliament, by Keith Sutherland. The lawyer's responsibility Caroline Fournet Torture Team: Deception, Cruelty and the Compromise of Law, by Philippe Sands. The journalist's responsibilities John Lloyd Why Democracies Need an Unlovable Press, by Michael Schudson. Red in tooth and claw Dick Pountain The Predator State: How Conservatives Abandoned the Free Market and Why Liberals Should Too, by James K. Galbraith. The quandaries of the Nazi empire Richard Mullender Hitler's Empire: Nazi Rule in Occupied Europe, by Mark Mazower. The colour‐coding of American elections Gianfranco Pasquino Red State, Blue State, Rich State, Poor State: Why Americans Vote the Way They Do, by Andrew Gelman. Organising warring parties John Ramsden Parties at War: Political Organisation in Second World War Britain, by Andrew Thorpe. The United States since Vietnam: a life on the wire Vassilis K. Fouskas World Out of Balance: International Relations and the Challenge of American Primacy, by Stephen G. Brooks and William C. Wohlforth.

Choosing and Instructing the Mental Health Expert Witness: A Lesser Known Aspect of Trevorrow

Apart from its significance as the first case to recognise that a member of the “stolen generation” had a cause of action against the government, Trevorrow v State of South Australia (No 5) [2007] SASC 285 is also a pertinent reminder of the extent to which a court will be assisted by an expert, especially when the expert is providing evidence that, whilst within their general training in psychiatry or psychology, is nonetheless outside the expert's clinical or academic experience. The situation becomes worse when experts are inadequately instructed. This article will consider the responsibilities of lawyers when choosing and instructing mental health experts. It will be argued that if the civil jurisdiction rules of court in relation to expert witnesses are followed, then there should be no real need on most occasions to call mental health experts to give oral testimony, except where a pre-trial conference does not lead to the resolution of differences of opinion between the experts.

Monetary Caps on Damages Due to the Liability of Auditors for Audit Failures in Publicly Listed Companies - Subtitle: A Comparative Legal Analysis between Common Law and Civil Law Regimes in Countries, Which Have Capping Damage Awards of Auditors

Monetary Caps on Damages Due to the Liability of Auditors for Audit Failures in Publicly Listed Companies - Subtitle: A Comparative Legal Analysis between Common Law and Civil Law Regimes in Countries, Which Have Capping Damage Awards of Auditors

The Lawyer's Responsibility for Foreign Law and Foreign Lawyers

Lawyers are increasingly called upon to advise concerning, and to assist in the structuring of, transactions touching on the laws of more than one legal system. Such duties pose special, and too often little appreciated, problems for lawyers who are, very typically, trained and certified in only a single system of laws. The fundamental difficulty is that the lawyer, a licensed specialist of one legal system, is confronted with legal questions pertaining to other (call them foreign) laws. This article addresses the responsibility of U.S. lawyers, in a non-litigation setting, for foreign law and the work of foreign lawyers. As a framework for analysis, three choices are examined below. First, the choice of disclaiming responsibility for foreign law is rejected. Second, the choice of handling foreign law oneself is critically treated. Third, the choice of retaining foreign counsel is recommended, but hedged with suggestions that the lawyer may still have responsibilities with respect to the choice and continuing work of foreign lawyers. Finally, it is submitted that lawyers should be more regularly and extensively trained in foreign law.

Legal Knowledge, the Responsibility of Lawyers, and the Task of Law Schools

A former colleague of mine recently asked me whether being Dean left me time for any serious legal research and writing. Putting aside any question of intellectual impairment caused by decanal duties, and assuming also that one is on the right side of that well-known equation in which accumulated experience keeps one just ahead of one’s biological decline, I mentioned that I had gravitated to shorter, more reflective pieces. In particular, I had just written a piece of extreme brevity - only a page and a half of printed text - with which I was nevertheless very pleased. It explored the phenomenon of deep antinomies in the law, particularly the tension between the concept of law as an autonomous body of knowledge and the notion of law as comprehensible only by reference to its context, especially its political, social, economic, and historical context. He said to me, ‘Why am I not surprised? The theme of all of your writing seems to be the irreconcilable tension between competing ideas!’

Failing Justice: Charles Evans Whittaker of the Supreme Court, by Craig Alan Smith

Failing Justice: Charles Evans Whittaker of the Supreme Court, by Craig Alan Smith REVIEWED BY ALAN C. KOHN Is there any value injudicial biographies? Is not the time of educators better spent writing on other matters, cutting edge issues which can have a significant impact on important questions of the day? Some time ago, Judge Richard A. Posner apparently espoused that view.1 Judges decide cases andwrite opinions. It is the responsibility of lawyers and judges to read those opinions carefully and then decide whether issues raised by the facts ofthe matter before them are ruled by those opinions. Biographical information about the writer of an opinion is irrelevant. It makes no difference whether the opinion’s author is an immigrant who came over on a boat in 1882 or whether the author’s ancestors came over on a boat in 1620. Either way, the opinion has the same value. By analogy, do we need to know about Frank Lloyd Wright’s personal life to know that his prairie and Usonian houses are archi­ tectural masterpieces? Is it necessary to read Mozart’s biography to appreciate his Jupiter Symphony? Do we need to know who really wrote Shakespeare’s plays to appreciate the fact that Hamlet is a great play worthy ofstudy and enjoyment? Judicial opinions, like archi­ tecture, music and theatre, are the result of a creative process and should be taken at face value. Biography is beside the point. Professor Melvin I. Urofsky has taken a different view.2 He argues that judicial biog­ raphy, especially of Supreme Court Justices, enables us to understandbetterthejudicialpro­ cess and the Supreme Court and its role as one ofthree branches of government. As a lawyer, I tend to agree with Judge Posner, but I doubt he would disagree with the law of supply and demand. Remarkably, there have been only 110 Justices in the 217 years of the country’s existence, and the citizenry is curious about them, especially as it more fully realizes that some opinions of the Court can have a definite and immediate influence on their lives. Add to that the need to “publish 92 JOURNAL OF SUPREME COURT HISTORY Justice Charles Whit­ taker's forte was “finding the law”: applying the facts of the case to that law and then coming up with a reasoned and fair decision. Unfortunately, Whittaker (pictured in his chambers), who lacked a liberal arts education, had great difficulty deciding cases where there was no existing applicable law. or perish,” which affects educators every day. The net result is that an academic, if he can find a publisher who believes there is money to be made, cannot be faulted for trying to en­ hance his career and also make a little extra cash by writing the biography of a Justice of the Supreme Court. Ifsuch a biography is to be written, should it not be written about a Justice who belongs in the Pantheon of Supreme Court Justices? In the last fifty years, Chief Justice Earl Warren and Justices Hugo L. Black, William J. Bren­ nan, William O. Douglas, Felix Frankfurter and John Marshall Harlan are good candidates for biography. They are the relatively recent, highly regarded Justices who have caught the attention of the public and of constitutional scholars alike. But the biographies ofPantheon Justices have either already been written or are about to be written and published. That brings us to Failing Justice: Charles Evans Whittaker of the Supreme Court, by Craig Alan Smith.3 Justice Whittaker is not well known, and he has been trivialized and de­ meaned by many constitutional scholars. Who will buy such a book? The publisher is un­ doubtedly hoping for quite a few sales. I am sure the author has the same hope. Supreme Court cognoscenti, many Missouri lawyers and judges, and libraries will probably want a copy. Is this a book worth reading? If so, why? Justice Whittaker’s Horatio Alger story is re­ markable and interesting. An impoverished WHITTAKER BIOGRAPHY 93 Kansas farm boy, at age twenty, quits plow­ ing the fields and trapping small animals and heads forKansas City, Missouri. He simultane­ ously goes to high school, attends law school, and serves as...

The Coming Wave of Transparency Reform: A Tidal Shift

Over the past year, a series of international financial scandals have highlighted significant gaps in the global system which seeks to regulate and enforce global norms to protect the integrity of financial markets and services. Some of these scandals, such as the press allegations about billions of dollars being laundered from Russia through the Bank of New York, are still unfolding, and it may be some time before we can draw conclusions about what actually took place. Regardless, the information already public is accelerating already rapidly moving efforts by the USA, the G7 and other key stakeholders in the global system to close those gaps. These efforts do not relate solely to the main regulated financial services industries and to jurisdictions perceived to be underregulated or uncooperative. They also take on the possibility of applying new standards relating to the responsibilities of lawyers, accountants, auditors, company formation agents and notaries to the governments that license them and to their fellow citizens, in addition to those responsibilities they have to the private‐sector clients who have engaged them. The development of these and the other new standards is still in progress and will require intensive consultations in the months to come between governmental institutions and those in the private sector most affected by such standards. But inside the government, the debate is not whether we will build broader protections against financial crime, but how far to go, and whom we will hold responsible for undertaking the work.

The betrayed profession: lawyering at the end of the twentieth century

This examination of the legal profession, written by a leading US lawyer, offers guidelines for a renewed professionalism among attorneys. It argues that most lawyers have lost touch with the idea that they belong to a public profession, and that the lawyer's responsibility is not simply to the client, or to the highest fee obtainable, but to the court. The bar association is seen as a trade union for lawyers, with the public as the loser.

Ethics and the professional responsibility of lawyers

“Applied ethics” is sometimes understood on the engineering model: As engineers “apply” physics to human problems, so philosophers apply ethics to dilemmas of professional practice. It is argued that there is nothing in ethics comparable to physics. Using legal ethics as an example, it is suggested that political philosophy provides a better approach to understanding professional ethics. If, for example, the adversary system is a legitimate social institution, and if attorneys must adhere to certain principles in order for that institution to fulfill its purposes, then attorneys may be said to be subject to those ethical principles.

Ethics and the professional responsibility of lawyers (commentary)

I begin my comments with a "lawyer joke" not to ridicule the profession I share but because the extensity, and intensity, of legal humor testifies to the serious need to cope with the ethical ambiguities of the law. Professor Kipnis' analysis is valuable because it confronts and, in part, dissolves those ambiguities. Drawing legal ethics from political philosophy and not "general" ethical theory, Pro fessor Kipnis reminds us that the law is a complex social institution dedicated to the just resolution of disputes. As a complex institution, the legal profes sion assigns to lawyers in particular cases tasks whose relationships to general societal goals appear con tradictory. Professor Kipnis then illustrates the logic of controversial professional standards by tracing the functional bases for confidentiality and advocacy. An accountant greeted her lawyer friend one day, asking how things were in the "justice 'biz.'" The lawyer responded that he was in the law rather than the justice business; moreover, it was a profession and not a business at all.2 What is curious about this