Ethics, Law & Justice Notes:
Table of Contents:
Class 2: Justice, Theory and the Law……….. 4
Defining Justice ... 4
- Distributive justice - Procedural justice - Retributive justice Law and ‘obedience’ ……… 6
Structural Injustice ……….. 7
Asylum Seekers and access to Justice ……….. 9
Asylum Seekers & access to Justice ... 9
Class 3: Access to Justice – Economic Issues….………. 14
Different forms of legal payment ... 14
- Time Billing - No Win No Fee - Contingency Fee - Flat Fee Economic Challenges in the legal profession ... 16
Economic solutions in the legal profession ... 17
- Pro-bono - Legal aid - Community Legal services - Self-represented litigants - ADR
Class 4: Access to Justice – Social/Cultural Issues …………
Social/Cultural Access to Justice Challenges ... 24- Aboriginal & Torres Strait Islander People ……….….…… 24
- Culturally & Linguistically diverse people ……….….…..… 26
- Interpreters ………...….…… 28
- People with disabilities……….………...….… 29
Social/Cultural Access to Justice Solutions ... 32
- Community Legal Centres (CLCs) - Legal Education (law school) - Community Education (community centres) - Interpreters - Cultural Training - Affirmative action for lawyer/judge diversity
Class 5: Ethics, Theory and the Law ……….…………..…… 33
Morals and ethics ……….……….…...….… 33
Values and emotions ……….………..……...….… 35
• Lake Pleasant Bodies Case ……….………...……....….… 36
Ethical approaches ……….………..…………...….… 37 - Virtue ethics
- Deontological ethics - Consequentialist ethics
Lawyering approaches ……….……….………...….… 37
- Adversarial ……….……….…...….… 37
- Responsible lawyer ……….………...….… 39
- Social justice/ethics of care ………..………….………...….… 39
Class 6: Legal Players – Lawyers I ……….….. 40
Defining Lawyers ……….………...….… 40
- Solicitors and Barristers ………..………...….… 40
- The cab-rank rule ………..……..………...….… 41
- QCs and SCs ………..………...……...….… 43
Regulation of Lawyers ………..………...….… 44
- The bodies that regulate Lawyers: ………...….… 44
Law Society, Bar Association, Office of the Legal Services Commissioner (OLSC), Attorney General, Admissions Board and Supreme Court. - The ‘rules’ that regulate lawyers: ……….…………....….… 46
Conduct Rules (for both Barristers and Solicitors), Legal Profession Act 2004 (NSW), Legal Profession Regulations 2005 (NSW) and common law. - Disciplining Lawyers ………..……….…....….… 45
- Admitting Lawyers ………....………...….… 49
Competence ………...………....………...….… 53
- Remedies & Sanctions for Incompetence ….……….………...….… 55
- Disciplinary actions ……….……...………...….… 56
- Advocates Immunity ………....………...….… 56
- Improving Competence ………..………...….… 57
Class 7: Legal Players – Lawyers II (Professional Identity and Resilience)
Types of Lawyers ………..………....………....….… 59- Family Lawyers ………..………....………...….… 59
- Community Lawyers ………....………...….… 60
- Government Lawyers ………....………...….… 60
- Corporate Lawyers ………....………...………...….… 61
Profession v Business debate ………..…………..………...….… 63
- In-house Lawyers ……….………....………...…..… 65
Professional Identity ………....………...…………...… 68
Resilience ………...………...….… 73
Legal Players – Judges, Juries and Others ………..…….….. 76
Judges ………..………..…….. 76
- Role of judges………..………..…….. 76
- Appointing Judges ……….………..………..…….. 77
- Ethical dilemmas faced by judges ………..….……..…….. 81
- Disciplining Judges ………..………..…….. 82
Juries ………..………..…….... 84
- The role of juries ………..………..………..………..…….. 76
- Selecting jury members ………..………..……….………..………..…….. 86
- Jury exclusions ………..………..………..…………..…….. 86
Attorney General ………..…...…..…….. 88
Other Legal professions ………..………..…….. 88 - Law academics
- Law historians
- NSW and Australian Law reform commission
Class 8: Ethics and Criminal Law ………..……….….. 90
(Brief) The concept of lawyers’ duties ………..…...………...….. 90
The role of the Crown Prosecutor ……….…….………..…...………...….. 91
The role of the criminal defence lawyer ……….………....….. 95
Class 9: Integrity and the Law ………..………..….. 100
Duty to the Law ……….………..…...………...….. 100
- Duty of Candour ………..………..……….………….….. 101
- Duty of Integrity ………..………..……….……….…... 103
- Duty to respect the Court ………..………..………..…….. 104
- Independence ………..………..……….………….….. 105
- Duty to Clients ………..………..……….………..…….... 106
Tension between the fundamental Duties ………...……...….. 106
Duty of Confidentiality ……….…………...….. 108
Legal Professional Privilege ………...……….…....….. 112
Class 10: Duties to Client, Colleagues and Others ………...….. 114
Duty to Client ……….…….…..…...…….…...….. 114
- Retainer ………..……….…….………..…….………...….. 114
- The Fiduciary Relationship ………..….………..…....…….…...….. 116
Self-Interest ……….………...………..….. 116
Duty to Third Parties and Colleagues ………...…...………...….. 118
- Companies ……….……….………..…...………...….. 119
Civility/incivility ……….………..…...………...….. 121
Class 2: Justice, Theory and the Law
Defining Justice
- Distributive justice - Procedural justice - Retributive justice Law and ‘obedience’
Structural Injustice
New Lawyer à 406-412
‘While a relationship between law and justice may not be necessary, it is at least desirable.’ (New Lawyer, 407)
‘Justice, provides a standard against which particular laws, legal decisions and the legal system as a whole can be measured.’ (New Lawyer, 407)
- Justice as divine command - Justice as natural law - Justice as positive law - Justice as mutual agreement - Justice as consequentialism
Justice: A concept defined according to the particular philosophical school of the inquirer… Most definitions of justice can be categorised into one of two groups: one holding that justice has a transcendental nature and is determined by or oriented to God; the other maintaining that justice is a matter of convention determined by human judgment.
- LexisNexis Concise Dictionary, 358
Distributive Justice: An Aristotelian and Thomistic term referring to the relations of individual citizens to the whole body of the commonwealth. More generally, it refers to principles of taxation and redistribution or apportionment of the wealth of the
community. Principles of distributive justice are often used in legal theory to define the principles by which members of a community may be justly taxed.
- LexisNexis Concise Dictionary, 196
Ø Egalitarianism: resources should be distributed equally within the group or community, either in terms of equality of opportunity or equality of outcome.
Egalitarianism is consistent with the liberal ideal of equality
Ø Desert theory: resources should be distributed according to what each member of the group deserves, the basis of which is not equality but some other criterion such as need, talent or effort
Ø Utilitarianism: resources should be distributed so as to maximise the total or average happiness or welfare across all members of the group or community (New Lawyer, 408)
Rawls vs. Nozick (New lawyer, 409)
Rawls elucidated seminal notions of justice in ‘A theory of Justice’, which demanded an impartial distribution of resources and opportunities.
à Freedom to vote should be distributed equally, however the obligation to pay taxes should not be distributed equally, but rather progressively.
Nozick criticised Rawls conception of justice as it failed to account for the personal contexts and history of each individual’s entitlement to goods.
à Attempts at redistribution constitute ‘theft’.
Natural Justice (Procedural fairness): The right to be the subject of decision making which follows a fair procedure.
This presumption is twofold.
‘Hearing rule’ – requires that a person be given an opportunity to present their case with knowledge of any prejudicial material that might be taken into account by the decision maker.
‘Rule against Bias’ – the right to have a decision made by a decision maker who is neither biased nor might reasonably be apprehended to be so.
- ‘Concern of the area is to avoid practical injustice’
Denial of natural justice is a ground for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth)
- LexisNexis Concise Dictionary, 423
• Procedural justice is paramount for the sustenance of individual rights & the democratic process
Can be regarded as the cornerstone to the modern democratic process and is a clear manifestation of the rule of law.
(See New Lawyer, 410 – examples of procedural justice safeguards.)
Retribution (retributive Justice): The theory that the imposition of punishment under the criminal law is justified because a person who inflicts harm should receive a proportionate amount of harm in return.
- LexisNexis Concise Dictionary, 553
Retributive Justice: is the ‘proper’ response by the state to a wrongful act.
Desert Theory: punishment should be decided according to what the offender
deserves. Offenders must be dealt with as individuals, not as part of some calculation of overall welfare.
Utilitarianism: according to this approach, retributive justice, compensation and/or punishment tis justified if it maximises the overall welfare of the community by –
- Deterring other offenders - Rehabilitating existing offenders - Ensuring the law is complied with.
Retributive justice is diametrically opposed to restorative justice.
Restorative Justice: concerned with restoring or healing the victim and reintegrating the offender into the community.
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