Week 6 – Justice and Ethics
In this week, we considered what justice is, and how ethics ‘fits in’ with our prospective profession. In order to fully understand what justice… we need to examine the theories and ‘nature’ of justice. There are many theories…. natural law, divine command, consequentialism and mutual agreement… just to name a few. The common thread with most of these theories about justice is that the literal or purest form of each leaves much to be desired. Instead, a blend of several types is needed… and I can see traces of all four in the current system we have today. Then we have to consider the three ‘types’ of justice – distributive (fair and proper distribution of wealth, resources and power), procedural (fair hearing or trial) and retributive (‘proper’ response by the state to a wrongful act) justice Unfortunately, there was little mention of restorative justice, where the focus is healing the victim and reintegrating the offender back into the community. Homelessness and immigration detention were also raised as areas of social justice issues.
Then we considered the three areas of which prevent equitable access to justice. Firstly, although ignorance of the law is no defence, it is still a valid area, as no one individual can know all aspects of the law. It is inaccessible to the layperson. It is constantly changing. And it is exponentially increasing in volume. And the media is unrealistic in its portrayal of the legal system and profession. Then we consider the next major barrier – cost. Not everyone has the financial resources to afford a lawyer or legal advice. In some cases, access to legal advice would have prevented the legal proceedings in the first place! Then we have discrimination and disadvantage. Examples of this barrier include, gender inequality, Indigenous Australians and persons from a non-English speaking background. Society in general has significantly disadvantaged women in the past. Whilst many improvements have been made in recent years, many industries remain male dominated, and incur cases of sexual harassment of women. Indigenous Australians have been discriminated against numerous times by Australian Law since settlement. Whilst this has been greatly improved, it is still far from equitable. It is not uncommon for situations to arise where Indigenous Australians are unlawfully discriminated against, and no provision for the likelihood that they will not be able to afford access to legal aid or representation. Finally, as English is the dominant language of Australia, people who do not speak or read English are at an immediate disadvantage. And while there are some translation services, government funded services are limited, and other services are prohibitively expensive.
In order to combat these barriers, several different solutions have been adopted. Law firms advertise in order to help remedy the public ignorance of when it is appropriate to engage a lawyer, and what lawyers actually do. Government is drafting new legislation in Plain English, in order to make it more accessible, and is progressively re-writing old legislation also. Governments fund community centres and legal aid in order to try and provide legal advice and representation to people from low socioeconomic backgrounds. Lawyers will offer unpaid ‘pro bono’ services, and in fact are encouraged to do so by their respective societies. Conditional costs agreements (so called ‘no win, no fee’) exist which are another option. Due to changing procedures and self-help documents available at some courts, people are now able to self-represent. Finally, alternative dispute resolution provides several methods which can resolve an issue between two parties before it reaches court, lowering the costs and improving the chances of a satisfactory outcome for all parties.
The second part of the reading for this week was focused on ethics. What is ethics (the study of the principles that guides people into choosing what is write and what is wrong) and what are morals (the rules or principles for distinguishing between ‘right’ and ‘wrong’). We examined the different sources and theories informing ethics – from the Greeks, to religion, to secular religion, and finally modern ethics. In modern ethics, just like with the different justice theories, strict adherence to any of the ethics theories results in impractical or unreasonable outcomes. Again, all of the different theories in moderation appears to be the best approach. Although some, like the virtue ethics and ethics of care are very practical on their own.
But how does this relate to the legal profession. Well, the tradition approach was to throw the lawyers personal ethics out the window, as they had a duty of care to their client, regardless of their views and opinions towards them. More recent times, alternative views such as responsible lawyering, moral activist lawyering and ethic of care lawyering have taken over. Lawyers have a duty to the court, their client, the law and their colleagues. Four separate areas which they must ensure they are practicing professional ethics. In order to make this practical, each state has a set of ethical rules and a regulatory body. In Queensland, these are the Australian Solicitors Conduct Rules (2012). These rules provide a framework which a lawyer or solicitor can refer back to ensure they are fulfilling all of their obligations, and as a result, begin to practice in an ethical manner. However, as John Briton said, ‘mere compliance with the rules will [not] make you an ethical person… [r]eflect on what’s happening around you at work, and to you’ (John Briton, Ethics in the Real World, 2008)