WK 3 - communication, advocacy, cross cultural communication, aboriginal clients and witnesses, criminal law practice PDF

Preview

Summary

wk 3...

Description

WK 3 - CHAPTER 6 – ETHICAL CONSIDERATIONS INVOLVING AUSTRALIAN LAWYERS AND SOCIAL MEDIA USE.

Background on professional conduct 

In Australia, the common law, court rules and professional conduct rules advise lawyers on how to behave ethically and are a guide on how to behave ethically.



In 2010 the Law Council and the Australian Bar Association released new uniform draft professional rules: the Legal Profession National Rules: Solicitors Rules 2011

Benefits to lawyers using social media 

There are several benefits to lawyers using social media.



Social media can be a useful marketing tool to lawyers for little or no cost.



Social media can be used to recruit staff



Social media can be used as a networking tool to connect with other lawyers



It can educate the public and other lawyers

Dangers of lawyers using social media 

Social media allows lawyers to communicate frequently informally, without many restrictions. This increases the chance that a lawyer may post something that will breach the Professional Rules.



Some lawyers do not use the same discretion as they do when making decisions in a professional context. This increases the possibility that they will make a mistake on social media, such as writing something inappropriate.



This could potentially lower the lawyers reputation or point to a breach of the Solicitors Rules to act with integrity. Sarah El-Ahmad 18572201



If a lawyer writes something inappropriate on social media, a legal regulatory body may take action against him or her.



Ethical guidelines may educate lawyers on the use of social media to prevent indiscretions.

Ethical situations lawyers may experience while using social media Unintended or faulty retainers 

The word ‘retainer’ refers to a contract between a lawyer and client for the lawyer to provide legal services.



If a retainer exists then the lawyer owes a fiduciary duty to the client. This includes confidentiality.



If a lawyer lacks knowledge or expertise required for the lawyer to complete work pursuant to the retainer, then the lawyer should refuse work and refer to another lawyer.



A lawyer cannot accept a retainer if it conflicts with his or her duties to another current or former clients interests.



A lawyer may create an unintended retainer with a client via social media



If a potential client asks a lawyer a question on social media and the lawyer answers the question generally, a client still may assume that a retainer was created by the lawyers mere answering of the question.



If the lawyer does not intend to enter into the retainer, the lawyer should refuse to answer the question or should ask the person to make an appointment with the firm.

Lawyers duty to the court

Sarah El-Ahmad 18572201



A lawyer has a duty to the court that is paramount, even if a client gives contrary instructions.



The essence of this duty is the requirement for lawyers to act professionally, with scrupulous fairness and integrity and to aid the court in promoting the cause of justice.



A lawyers duty to the court includes acting with candour, honesty and fairness.



One of the purposes of a lawyers duty to the court is to protect the administration of justice by allowing judicial officers to enforce lawyers behaviour to ensure that lawyers act appropriately.



The Solicitors Rules state that a lawyers duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.



The Rules also state that lawyers must act with integrity and they must not in their professional or personal lives act in a way that lowers the publics confidence in the administration of justice or bring the profession into disrepute.

Lawyers duty of confidentiality 

Lawyers have a duty to keep information that their clients tell them confidential.



This duty encourages the client to tell the lawyer everything about the matter.



If a lawyer breaches confidentiality it may be considered professional misconduct and it is a cardinal sin.



The Solicitors Rules and the Barrister Rules in each Australian State and Territory discuss the duty of confidentiality.

Sarah El-Ahmad 18572201



The rules generally state that a lawyer may not provide anyone outside their firm with any confidential information obtained from a client unless the client gives permission or the lawyer is required to give information by law.



The solicitors rules and the Barristers Rules do not define what information is confidential, but the commentary to the Solicitors Rules states that the following are classes that may be confidential a) Information of a former client that is directly related to a matter for an existing client b) Information of relevance to a competitor, such as product pricing or business models; c) In some circumstances, particularly intimate knowledge of a client, its business and personality and strategies.

Ethical guidelines for social media 

Written ethical guidelines are necessary for Australian lawyers about social media, despite how often technology changes. Technology does not change so quickly that general ethical guidelines about social media use would become obsolete over night.



Clear ethical standards for Australian Lawyers about social media use can prevent lawyers from breaching the Solicitors Rules and Barristers Rules and other professional rules.



It is recommended that there be a uniform set of guidelines for lawyers nationwide because of the professions current stance towards uniformity.

Weekly questions 1. What are the possible benefits and detriments for lawyers using social media?

Sarah El-Ahmad 18572201

Benefits:

Marketing tool for business, recruiting staff, networking with other lawyers, educating the public.

Detriments: Damaged reputation, loss of integrity, legal action may be taken if post was inappropriate. 2. What are particular ethical situations that lawyers might experience whilst using social media? Unintended retainers – clients may think just because they asked a question that they have formed a retainer. 3. Why does the author argue that uniform, standalone and national guidelines for lawyers social media use are necessary? The author argues that clear ethical standards for Australian Lawyers about social media use can prevent lawyers from breaching the Solicitors Rules and Barristers Rules and other professional rules.

CHAPTER 7 - CROSS CULTURAL COMMUNICATION Introduction: Languages and Cultures

Sarah El-Ahmad 18572201



In everyday communications, a great deal remains tacit, assumed background, covert often realised.



Miscommunications do occur, sometimes through misunderstanding the spoken or written word, often through mismatch of intentions or assumptions between the speaker and the hearer.



Such potentials of miscommunications or under communication are magnified by differences in language behaviour and in culture – differences of which are often unaware, particularly with speakers from cultures other than our own.



There are atleast five dimensions to the meaning of utterance which are relevant to this current discussion 1. Formal, grammatical and semantic – the meanings of the individual words and phrases 2. Pragmatic – the way we organise old and new information in phrases, sentences and texts, and how we manage the speech acts that we realise through different words and phrases, for instance, “order” “promise” “persuade” and others. 3. Metalinguistic – Aspects performed with the voice, but which are not part of the core structure of the forms / grammar / semantics or pragmatics of language. These phenomena include tone of voice, intonation, volume, speed or clarity of enunciation and others. 4. Non-linguistic – Body language, gesture, facial and other expression, proximity, touching, eye contact and others.

Sarah El-Ahmad 18572201

5. Contextual and cultural – The factors of the physical and cultural environment.

Codrens Case and its Implications 

Kelvin Condren, an Aboriginal man who was found guilty of murder in a complicated hearing in 1987.



The case of the prosecution rested heavily on what police produced as a “confession”, claimed to be a verbatim record of Condren admitting his guilt.



Condren protested his innocence. Defence counsel consulted an expert linguist in Aboriginal English, Dr Diana EDES.



Dr Diana concluded that it was highly unlikely that Condren could have spoken as recorded in the confession. The English was inconsistent with the language on the confession. It contained a number of Aboriginal features which made it difficult, if not impossible for him to represent a fair account if his actions in English language.



The Aboriginal system of linguistic, sociolinguistic and cultural values and practice is sharply different from Anglophone norms.



Among many traits which present problems for the equitable practice of the law are: o “Gratitutious concurrence” – the practice of Aborigines to agree with Anglo-Australians as the easiest way of avoiding stressful or unpleasant situations o eye contact, especially sustained eye contact, often taken by AngloAustralians as a confirmation of sincerity or truthfulness, but in Aboriginal societies is considered rude and challenging.

Sarah El-Ahmad 18572201

o Aborigines do not usually impart valuable information on demand in confrontational situations. o Responses like “I don't know” may not indicate lack of knowledge of the issue, but rather a reaction like, this is is not appropriate way for me to provide information. o Silence is a regular part of Aboriginal conversations and is accepted as a regular way of using time to assemble ones thoughts. o Hesitations or dysfluencies, not recorded in court transcripts, can be a basic presentation of the presentation of information by Aborigines.

Intercultural communication 

Condren case shows several important issues of communication across cultural boundaries.

Weekly questions 1. How does the possibility of a break down in communication increase in interlingual and intercultural communication?

Sarah El-Ahmad 18572201

5 dimensions to the meaning of utterance. P.171

2. How does Condren case help us to understand the difference in values between Aboriginal and Anglophone norms?

The Condren case helps us to understand the difference in values by outlining the difference between Anglophone and Indigenous norms. 3. Explain how the politeness, body language, power dynamics, metalinguistic factors and individualistic and collectivist cultures may affect intercultural exchanges.

CHAPTER 8 – LEGAL PRACTITIONERS WORKING MORE EFFECTIVELY WITH ABORIGINAL CLIENTS: PROMISING NEW CULTURAL COMPETENCY TRAINING BY LEGAL AID NSW.

Sarah El-Ahmad 18572201

Introduction



In 2011 Legal Aid NSW identified the need to provide legal practitioners with training that would assist them in providing services to Aboriginal clients.



In mid 2012, Legal Aid sought expressions of interest from consultants who could provide cultural competency training with a focus on practical skills to work effectively with Aboriginal clients.

Background to the training 

This was seen to represent a major gap in ensuring that all LANSW services were being provided in a culturally sensitive manner.



Cultural competency training aims to prepare a workforce that can begin to address the disparities in the access to services that continue to impact on Aboriginal clients.



It also challenges individuals to improve the competency of the firms / agencies in which they are employees or principals.



This model includes three factors that contribute to cultural competency: attitudes, skills and knowledge – cultural sensitivity relates to the individual practitioners knowledge.



A culturally competent practitioner comes to appreciate that separating Aboriginal clients legal issues from social / cultural matters may be neither possible or desirable.



Not suggesting that practitoners should be quasi social workers, rather, adopt an attitudinal shift by accompanied skills and knowledge about Aboriginal community services.

Sarah El-Ahmad 18572201



This includes the ability to make a ‘warm referral’ (where the legal practitioner personally makes the phone call and speaks directly to the other service provider while the Aboriginal client is present)

Challenging issues arising in the training sessions 

Stereotypes about Aboriginal people were identified – often in the role plays and these had to be dealt with sensitively.

Weekly questions 1. How do the authors define a culturally competent practitioner? A culturally competent practitioner comes to appreciate that separating Aboriginal clients legal issues from social / cultural matters may be neither possible or desirable.

2. What were the stereotypes identified by the authors during the conduct of cultural competency training? 

Aborginal male violence is ubiquitous



Drug and alcohol dependence



‘White race privlege’

CHAPTER 9 – ABORIGINAL CLIENTS AND WITNESSES

Evidence, Procedure and Law

Sarah El-Ahmad 18572201



The primary immediate causes of Indigenous over-representation in the criminal justice system are the higher rates of policing, arresting and charging.



However, the subsequent police interrogation, court procedures and the formulation and application of the criminal law rules exacerbate the potential for injustice.

Questioning Indigenous defendants and witnesses 

A number of factors may impede effective communication if it is not recognised and accommodated.



First, there are differences between English and Aboriginal languages, pidgins and creoles.



Cooke (2002) notes that “courts commonly fail to account for the suggestibility and linguistic manipubility of Non-English speaking background Aboriginal witnesses through regulating how they are questioned, particularly in reference to how they are questioned and leading questions.



Second, there are significant differences between standard Australian English and Aboriginal English. Aboriginal English is recognised as a distinct dialect with significant grammatical and semantic differences



Third, there are also differences in body languages and gestures.

Problems confronting Indigenous people before the courts 

Aboriginal people have many difficulties in understanding and coping with the courts.



First is the language problem. People don't understand court language and procedures, and they make mistakes which have to be corrected and then they feel embarrassed.

Sarah El-Ahmad 18572201



Aboriginal people are severely limited in their English. Court language is very hard for them to understand, and most people don't understand the charges put forward against them. Interpreters sometimes cant interpret because they don't understand aswell.



The same problem applies in the police station. This lack of understanding of what is going on leads to considerable fear.



They use English differently. If they are asked “did you do that?” they will say yes meaning “yes I did not do it”



Then there is the fear of the court situation. As soon as Aboriginal people enter the court room, they feel different, they become afraid.



Cross questioning confuses the people, especially about details of time and place.



Aboriginal people cant understand why they should be arrested for fighting, even if there was an injury.

Cross examination of Aboriginal children, the Pikenba case: 

In the Brisbane Magistrates Court in February 1995, three Aboriginal boys gave evidence as prosecution witness in the committal hearing of six police officers charged with deprivation of liberty.



The committal hearing concluded with the magistrates finding that there was insufficient evidence for the matter to go to trial. He reportedly concluded that the boys “had no regard for members of the community, their property or the justice system”

PINKENBA CASE

Sarah El-Ahmad 18572201

Facts: 

Just after midnight on May 10 1994, Three boys aged 12,13 and 14 were ordered into a police car by the six officers in Brisbanes Fortitude Valley.



Each boy was driven by a separate patrol car into a swampy area.



They were dumped about 14 kms away where they had to make their own way back.



The boys were not charged with any criminal offence, nor were they taken to the police station.



A point was made in the case that was by counsel of the police. That the boys knew their rights and thus their liberty to get into a police vehicle did not deprive their liberty.



At the hearing communication difficulties were occurring as a result of the language barriers.



The boys were culturally disadvantaged by the pressured question- answer sessions.

Outcome: 

Following an investigation by the Criminal Justice Commission, the Public Prosecutor laid charges against the police for deprivation of liberty.



The charges were dropped after a magistrate found the boys agreed to go with the police officers, however, the police officers were put on probation for one year by the police service, not as a court sentence.

Another illustration of the serious injustice which can result from the failure of the criminal justice system to address cultural differences is the case of Robyn Kina. Robyn Kina

Sarah El-Ahmad 18572201



Kina was convicted in 1988 of the murder of her de facto husband Anthony Black, and spent five years in prison.



She did not give any evidence at the trial and no evidence was called on her behalf.



She appealed unsuccessfully, the QLD court of appeal rejected a submission that the trial judge should have allowed the issue of provocation go to the jury.



Neither at the trial or appeal was the court fully aware of the circumstances which had surrounded Ninas Killing of Black.



Kina had been sexually and physically abuse...