Professions and Professionalism Flashcards
What is a profession
A field of work that involves a group of people who have specialised knowledge, skills, and training in a particular area
What perspectives and models of law are becoming more attractive
Moral lawyering, the moral lawyer or the good lawyer
What should one think about when referring to legal ethics
How one should live in the context of law, or more specifically, how lawyers ought to act in the context of the profession
The term legal ethics is often used interchangeably with what words
Professionalism and professional responsibility
What is the dominant model of professionalism
Known as the traditional model
In this model the lawyer is to advance zealously the client’s cause with all legal means; to be personally neutral as to the result of the client’s case; and to leave the ultimate ethical, personal, economic and social bases of the decision to proceed in the hands of the client
What does the dominant model of professionalism suggest that lawyers reject
non-legal factors such as morality, popularity, religion, power, custom and be guided by only what the law allows
What is the main principle behind the dominant model on professionalism
Is one that champions a client’s freedom to arrange their affairs within the bounds of the law
Individual autonomy
Where is the dominant model of professionalism found in policy
The Canadian Bar Association’s code provides that when acting as an advocate “the lawyer must represent the client resolutely, honourably, and within the limits of the law”
What are the two duties that must be balanced within professionalism according to Florida State Judge David A Demers
- Zealous representation
- Services as an officer of the court
What is the basic point of departure from the dominant model of professionalism
The opportunity for, or obligation on, lawyers to be guided by extra-legal norms, such as morality, religion, politics, and custom, when representing their clients
What is the primary premise of the alternative models of professionalism
Lawyers, as self-regulated professionals, have been given the opportunity and responsibility to act not just in the interest of their client, but , more fundamentally, in furtherance of the “public interest”
What does the alternative models of professionalism require lawyers to do
To accept personal responsibility for the moral consequences of their professional actions
The lawyer should avoid doing harm by refusing to act if the lawyer thinks that the outcome of “winning” would be on balance a “bad thing” or “socially unfortunate”
Where are the alternative models to professionalism found in policy
The preface of the Canadian Bar Association’s code notes that its primary concern is the protection of the public interest
What are the four reasons why lawyers are so influenced by the dominant trend of professionalism
- The dominant model has been the model throughout history
- Dominant model has a one size fits all approach and has the ability to apply to all lawyers
- Law has increasingly become a competitive business driven by complex needs of powerful clients
- The other models have been presented in a weak way
What is the main difference between the dominant model of professionalism and the alternative model in regard to underlying interests
Dominant model - client maintains ultimate interest
Alternative - some version of justice or public interest is the primary interest at stake
Main point of disagreement is the number of relevant stakeholders
What does sustain mean
To uphold the validity or rightfulness of, or to keep a person or community from failing to giving away
A useful lens of sustainability must take into account what four main groups
- Client interests
- Lawyer interests
- ethical and professional interests
- Public interest
Explain the concept of sustainability through a clients interests
Any notion of professionalism must make robust space for the realisation of a client’s legal interests in a free and democratic society
Describe the two aspects of lawyer’s interest in regard to sustainability
- Pecuniary interests - lawyers want to get paid for the work they do
- Non pecuniary interests of the lawyer will also play a prominent role in a sustainable notion of professionalism- lawyers should expect to maintain a meaningful ability to pursue activities and interests that make for a full life
Describe sustainability through the ethical and professional interests
We must recognise the diversity of the bar
The law in Canada now demands adherence to the equality principle
Describe sustainability through the public interest
Lawyers have responsibility in the project of solving collective action problems
Protecting the public interest requires a theory of professionalism that contemplates a bar that is working toward meaningful access tot eh system for all members of society
Groia v Law Society of Upper Canada 2018
Main question was regarding whether the Law Society Appeal panels finding of professional misconduct was reasonable
The alleged misconduct was from his in-court behaviour
Groia’s mistaken allegations regarding admissibility of evidence were made in good faith and were reasonably based but the manner in which he raised them was improper
allow the appeal and set aside decision of Appeal panel
What are four sources that provide guidance on ethical conduct
- Case law and legislation
- Rules of professional conduct
- Law society disciplinary decisions
- The principles or norms of lawyering
What is the most significant doctrinal source for guidance on how to act ethically
Case law and legislation
What do rules of professional conduct cover generally
Matters relating to legal practice such as client selection, advocacy, competence, fees, conflict of interest, confidentiality and advising clients
What do disciplinary decisions set out
They set out the standard of proof for establishing that a lawyer has committed a professional misconduct
Define Virtue Ethics
Virtue ethics explains ethical action through the combination of human character, practical judgement and orientation towards human flourishing
Describe utilitarianism (consequentialism) in regard to ethics
The most ethical action is that which is likely to do the greatest good for the greatest number
Describe Kantian/Deontological theories of right action
If a rule applies to a circumstance then the rule must be applied regardless of the consequences
The only principles which should guide your actions are those which could also hold as universal law
Describe the postmodernism theory on ethics
It asserts that a person cannot be removed from their desires and impulses; a person may choose not to pursue them, but their existence will necessarily shape and inform that person’s analysis
It is impossible to assess consequences with any degree of objectivity or certainty
Define the pluralism theory on ethics
It assets both that there are various values, and, that there are various ways of identifying which values are important
What is the core moral requirement associated with legal practice
Loyalty
Three defining features of loyal advocacy
- That the lawyer be neutral towards the client’s goals
- That the lawyer not be morally accountable for the client’s goals
- That the lawyer act as a partisan to accomplish the client’s goals
What does loyal partisanship require
It requires the lawyer to place the interests of the client above those of other people
