LAWS1006 Final Essay 85/100 High Distinction 2021 Sem 1 PDF

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LAWS1006 Final Essay
85/100 High Distinction
2021, Sem 1...

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510426165 LAWS1006

Final Essay

1 Introduction This essay seeks to assert that the rule of law is dependent on both the ethics of the legal profession, and the integrity and independence of judges. First, it will make the claim that the rule of law is founded on associative obligations, making its existence reliant upon the public choosing to obey the law because they believe the individuals comprising the judicial system care for them and the law1. Then, it will outline the reasons lawyers must obey their various ethical duties to the court and their clients and why judges must remain unmoving in the face of threats to their integrity. Thus, this essay purports to explain that if the members of the legal profession or judges fail to realise their respective obligations and lose sight of their utmost obligation to the rule of law, the public will lose faith in it, causing irreparable damage.

1.1 Legal Ethics

Legal ethics is defined as the "principles and values reflected in the conduct rules developed for the legal profession"2. In Australia, these conduct rules are known as the Australian Solicitors’ Conduct Rules 2011, developed by the Law Council of Australia3. These conduct rules outline a lawyer's obligations towards the court and their clients. Additionally, they assert that lawyers ought to act competently and with integrity in all their professional activities4. Because lawyers are professionals and thus bound to serve the community, it is

1 Cameron Stewart, ‘The rule of law and the Tinkerbell effect: theoretical considerations, criticisms and justifications for the rule of law’ (2008) 4(2004) Macquarie Law Journal 135. 2 Robin Creyke et al, Laying Down The Law (LexisNexis Butterworths, 10th ed, 2018) 105. 3 Law Council of Australia, ‘Australian Solicitor’s Conduct Rules’, Policy Agenda (Web Page)

4 Robin Creyke et al, Laying Down The Law (LexisNexis Butterworths, 10th ed, 2018) 105.

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vital that they remain faithful to these conduct rules, and that if they don’t, they will be punished5.

1.2 The Rule of Law and Public Faith The rule of law is a moral principle that plays a vital role in any democratic nation6. It lacks a precise definition, but at its essence, it protects citizens against arbitrary use of power7. Joseph Raz defines the rule of law as having two components: 1. All people, including government, should be ruled by the law and obey it, and 2. The law should be such that people should be able to be guided by it8.

1.3 Public Faith

Moreover, Dworkin claims that the rule of law is founded on "associative obligations". The state must demonstrate that they are making fair laws for the benefit of the community and that they will conduct themselves in accordance with those roles. The community, in turn, must believe that the state cares for them and agree to follow those laws9. Thus, the functioning of the rule of law depends on whether or not the members of the legal profession and judges conduct themselves with integrity and demonstrate a respect for the rule of law10. If they fail to do so and choose to manipulate the law for their own gain or the gains of their clients, the public will conclude that the judiciary and the state do not care for them11. As a 5 Andrew Dillion, ‘Ethical obligations of the government lawyer’ (2012) (226) Ethos: Official Publication of the Law Society of the Australian Capital Territory 20. 6 Jeffrey Jowell, The rule of law and its underlying values (Oxford University Press, 6th ed, 2007) ch 1. 7 Chief Justice Bathurst, ‘Challenges to the Rule of Law in Modern Society’ (Speech, Direct Court of New South Wales Annual Conference, 6 April 2021). 8 Cameron Stewart, ‘The Western Legal tradition and Rule of Law’ (Speech, Online lecture, 8 March 2021). 9 Cameron Stewart, ‘The rule of law and the Tinkerbell effect: theoretical considerations, criticisms and justifications for the rule of law’ (2008) 4(2004) Macquarie Law Journal 135. 10 Peter McFarlane, ‘The importance of ethics and the application of ethical principles to the legal profession’ (2002) 6(2) Journal of South Pacific Law 1. 11 Cameron Stewart, ‘The rule of law and the Tinkerbell effect: theoretical considerations, criticisms and justifications for the rule of law’ (2008) 4(2004) Macquarie Law Journal 135.

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result, the community will come to the reasonable conclusion that they do not have to obey their obligation to the rule of law either. They may even believe they must break this duty in order to protect themselves in the manner they believe the legal system will not12.

2 Lawyers and Their Duties

2.1 Duty to Court

An important aspect of a lawyer's duty to the court and thus to the administration of justice is the obligation to make responsible use of court processes by only taking on cases for which there is a legal basis for argument. A failure to do so undermines a key purpose of the rule of law13. In his recent speech, "Challenges to the rule of law in modern society", Chief Justice Bathurst stated that "The advancement of untenable legal arguments runs counter to the constraint of arbitrary power". His honour then gave the example of former president of the United States of America, Donald Trump, who had attempted to discredit the results of the 2020 US Election through the judicial system14. Indeed, the willingness of Trump's lawyers to represent and assist him in pursuing a case with no reasonable legal basis deeply undermined the rule of law, which is directed at protecting citizens against the use of arbitrary power15. Thus, a lawyer’s fidelity to their duty to make responsible use of court processes is integral to the rule of law.

2.2 Duty to Client

12 Marcia S. Krieger, ‘A Twenty-First Century Ethos for the Legal Profession: Why Bother?’ (2009) 86(3) Denver University Law Review 865. 13 Jeffrey Jowell, The rule of law and its underlying values (Oxford University Press, 6th ed, 2007) ch 1. 14 Chief Justice Bathurst, ‘Challenges to the Rule of Law in Modern Society’ (Speech, Direct Court of New South Wales Annual Conference, 6 April 2021). 15 William Gummow, ‘Statutory Interpretation II’ (Speech, Online lecture, 19 April 2021). 3

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Additionally, lawyers must realise their duty to act competently in their service of clients16 to avoid discouraging individuals from utilising their services. Recently, the number of selfrepresenting litigants in the court system has increased exponentially17. The percentage of single-justice hearings involving a self-represented litigant rose from 19 percent to 31 percent within a single year18. This creates a significant problem for the rule of law. The general public, when trying to pursue legal actions, need qualified professionals to help them protect themselves. When individuals do not have access to these professionals, they will fail to realise and exercise their rights, causing the protections provided to them under the law to become trivial19. Thus, it is necessary to understand the causes of this phenomenon. Reasons given by self-representing litigants who had consulted lawyers included general unhappiness with how lawyers failed to listen to the litigant, did not provide sufficient consultation, and were not transparent about fees. In addition, many of the people who choose to self-represent are doing so because they believe that the fees of lawyers do not reflect what the legal profession offers20. Hence, in order to avoid furthering the trend of self-representing litigants and in order to uphold the rule of law, lawyers must diligently obey their duty to act in their client's best interests by acting competently and with integrity21. They must also be open about pricing and remind themselves of the origins of the legal profession as being one of service and thus that interests in renumeration must never be their paramount motivation for practising22.

16 Robin Creyke et al, Laying Down The Law (LexisNexis Butterworths, 10th ed, 2018) 105. 17 Julie Macfarlane, The new lawyer: how clients are transforming the practice of law (UBC Press, 2nd ed, 2017) ch 1. 18 Robert Nicholson, ‘Can courts cope with self-represented litigants?’ (2005) 8(2) Flinders Journal of Law Reform 139. 19 Ross Ray, ‘Promoting and Defending the Rule of Law: The Role of Professional Associations’ (2008) (210) Ethos: Official Publication of the Law Society of the Australian Capital Territory 24. 20 Julie Macfarlane, The new lawyer: how clients are transforming the practice of law (UBC Press, 2nd ed, 2017) ch 1. 21 Peter McFarlane, ‘The importance of ethics and the application of ethical principles to the legal profession’ (2002) 6(2) Journal of South Pacific Law 1. 22 Robin Creyke et al, Laying Down The Law (LexisNexis Butterworths, 10th ed, 2018) 105.

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2.3 Public Faith in Lawyers The public’s faith in the legal profession is almost entirely dependent on the way in which lawyers conduct themselves, both in their daily lives and in their professional duties. When lawyers abuse their duty to the court by assisting their clients in presenting baseless arguments, the public will ask how such a case was able to be promoted. Moreover, when individuals consult legal professionals only to find that they are incompetent and do not clearly disclose their fees, a poor picture of the legal profession is painted. The public may well begin to believe that lawyers’ ethics can be easily overridden by their desires for renumeration and conclude that they will either not be able, or not be willing to exercise their skills to protect them from anything. Thus, the reciprocal obligation of the rule of law disappears. Moreover, if lawyers, who have been educated in the law, do not showcase a respect for it, there is no reason for the public to do so either23.

4 Judges

4.1 Separation of Powers

Although the ethics of the legal profession are indeed an important factor in the maintenance of the rule of law, the doctrine of Separation of Powers is also vital. It is of paramount importance that judges are independent and free to apply the law without pressures from the executive government24. The doctrine of Separation of Powers provides an indispensable counterbalance to the Executive's power and allows the judiciary to hold the government accountable for their actions25. This is a of primary importance in keeping the rule of law,

23 Marcia S. Krieger, ‘A Twenty-First Century Ethos for the Legal Profession: Why Bother?’ (2009) 86(3) Denver University Law Review 865. 24 Sir Gerard Brennan, ‘Judicial Independence’ (Speech, University House, Australian National University, 2 November 1996). 25 John White, ‘Lawyers and the Rule of Law’ (2013) 35(8) Bulletin of the Law Society of South Australia 8.

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which promises protection from arbitrary use of power, and states that governments can only conduct themselves within the bounds of the law26, alive.

4.2 Judicial Integrity

However, although the doctrine of separation is necessary for maintenance of the rule of law, judges must also conduct themselves with integrity, not allowing themselves to be corrupted by the rich and powerful. For example, in the American case Caperton v A. T. Massey Coal Co. ('Caperton')27, the chairman of a company donated $3 million to the campaign of an attorney who wished to be elected judge. The attorney was successful, and eventually sat on an appeal court that reversed the initial verdict of the chairman's case after refusing to disqualify himself three times28. Indeed, a judge whose integrity is able to be compromised by the powerful, allows the law to bought and manipulated. Thus the tenet of the rule of law which states that every individual will be held to the same standard, fails29.

4.3 Public Faith in Judges

The degree of success with which the rule of law governs a society is largely dependent on whether the general public believes that judges are giving out fair verdicts and ensuring justice is being served. As mentioned previously, reciprocity is the value upon which the rule of law is built. When the state creates laws, it expects that the citizens abide. In return, it promises to adhere to the rules that it creates30. In addition, the rule of law promises that every individual will be treated equally and has the same rights31. Thus, for the rule of law to 26 Jeffrey Jowell, The rule of law and its underlying values (Oxford University Press, 6th ed, 2007) ch 1. 27 Caperton v AT Massey Coal Co Inc (2009) 173 L Ed 2d 1208. 28 Robert S. French, ‘In praise of unelected judges’ (2009) 36(9) Brief 19. 29 Dylan Lino, ‘The Rule of Law and the Rule of Empire: A. V. Dicey in the Imperial Context’ (2018) 81(5) Modern Law Review 735. 30 Cameron Stewart, ‘The Western Legal tradition and Rule of Law’ (Speech, Online lecture, 8 March 2021). 31 Dylan Lino, ‘The Rule of Law and the Rule of Empire: A. V. Dicey in the Imperial Context’ (2018) 81(5) Modern Law Review 735.

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be upheld, it is of paramount importance that judges realise their commitments to hold the Executive, and powerful individual accountable for their actions in the court. If it is revealed that judges can be corrupted and coerced into giving out unjust verdicts, or that they can be pressured by the government, the reciprocity of the rule of law and the formal equality it promises, will collapse32. The public will see that the law is being manipulated and conclude that the judiciary and the state do not care for them33. As a result, the community may come to the reasonable conclusion that they do not have to obey their obligation to the rule of law either. They may even believe they must break this duty in order to protect themselves in the manner they believe the legal system will not34. Thus, misbehaviour of a judge in any way, or even the appearance of misbehaviour, must be avoided35 and public trust, influenced by the behaviour of judges, is paramount to the successful functioning of the rule of law.

5 Conclusion

Hence, it is concluded that, the rule of law is equally dependent on both the ethics of the legal profession and the integrity and independence of judges. Additionally, due to the associative nature of the rule of law, it is reliant upon the public’s trust that both lawyers and judges are acting out of a paramount interest to all individuals and the law. Thus, lawyers must act ethically, adhering to their duties to the court and clients. Similarly, judges must remain independent and unable to be compromised by the wealthy.

Word Count: 2475

32 Sir Gerard Brennan, ‘The Role of the Legal Profession in the Rule of Law’ (Speech, Supreme Court, Brisbane, 31 August 2007). 33 Cameron Stewart, ‘The rule of law and the Tinkerbell effect: theoretical considerations, criticisms and justifications for the rule of law’ (2008) 4(2004) Macquarie Law Journal 135. 34 Marcia S. Krieger, ‘A Twenty-First Century Ethos for the Legal Profession: Why Bother?’ (2009) 86(3) Denver University Law Review 865. 35 Devlin "Judges and Lawmakers" (1976) 39(1) Modern Law Review 1.

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