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On the Missing Discourse Concerning Legal Professions
ČUROŠ, P.: On the Missing Discourse Concerning Legal Professions. Právny obzor, 103, 2020, special issue, pp. 23-49.
Keywords:
Introduction
Until recently, the legal professions managed to stay under the radar, with public discourse on the role of the profession in society being minimal to non-existent. However, the topic of a lawyer's role within society is now slowly becoming part of the academic curriculum.
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The dominant view has been that a lawyer is above all bound by the stated will and interests of the client.
2)
This view depicts lawyers as entrepreneurs offering legal services, rather than public servants. We could contrast this with the roles of doctors and teachers, whose professions are perceived as contributing to the public good. In the Slovak discourse, this function of lawyers was not considered until recently. However, as the misdeeds of lawyers and judges have recently been exposed as scandals, public discourse on their role in society is slowly taking shape. While the formal rules of the legal professions have been established by laws or codes of conduct for some time, only recently has discourse focused on the institutions of legal professions.Until the social role of legal professions is analysed and discussed, the crisis will not be resolved. Lawyers must be taught at university what is expected of them; otherwise, they may favour more appealing business over guardianship of the law. In the United States, the legal profession fell under public scrutiny after the Watergate scandal, prompting the subsequent accreditation response from the American Bar Association. As a result, the necessity for disciplined lawyers appeared and the professional responsibility course began its ascent into respectability. Such courses even began to be expected of lawyers.
3)
This event kickstarted the discourse on which duties form the basis of a lawyer's role. Perhaps then it is time to ask, is the current crisis in the Slovak legal professions the Slovak Watergate?We can imagine advocates shut off in the world of their clients' interests, which are tantamount to their own interests of being paid. Judges may be convinced that they are underpaid and feel that their sacrifice for public service is worth more than the several thousand euros on their pay checks. It seems that those who perceive their duty as a means for personal gain rather than as a public service are more likely to slip into opportunism. It may be that a few errant bad apples have destroyed the honourable professions of judge and advocate. If so, they should be prosecuted by the authorities. If the majority of actors within these professions still know what ideals they represent, then the Slovak Bar Association proceedings and disciplinary senates at the courts could resolve the crisis quickly. Unfortunately, the solution will not be so simple. It is the thesis of this paper that any actions taken by the authorities to repress the crisis would only be a short-term and ineffective solution. The problem that led to the crisis is much more profound and is rooted in a lack of discipline within legal professions in general. The necessity of introducing the concept of discipline to the discourse is presented here through the work of Michel Foucault. I will start Part I with an explanation of why lawyers are supposed to be guardians of the rule of law and continue in Part II with an explanation of the term 'discipline'. In Part III, I will focus on the recent use of informal regulations through codes of ethics and codes of conduct, while in Part IV, I will propose a solution. The paper will elaborate on discipline-where it originates, why we expect it in a community, and how it is disappearing in the new age.
The concepts of the lawyer, legal profession, legal ethics, professional responsibility, and judge will be used within the text. 'Legal profession' includes the profession of a lawyer, while the label 'lawyer' is reserved for members of the Bar Association. This is usual in the vocabulary of common law countries, despite vast differences in bar structure across various jurisdictions. 'Legal ethics' denotes the institutional discourse on the duties of the legal professions. 'Professional responsibility' refers to the positive norms of the legal professions and the duties of legal professionals, which can be enforced by sanctions. Finally, 'judge' denotes a member of the judicial branch whose salary is provided by the state and who has a legal capacity to deliver decisions backed by law.
1. What is the crisis? Lawyers are supposed to be guardians of the rule of law, but the public does not see them that way.
Democracy is the result of an institutionalised wager:
"Everyone who supports and wishes to belong to a democratic political community assumes the risk that 'the wrong ' people and policies are chosen as the result off air elections.
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In the same way, the rule of law rests on an institutionalised wager that features independent lawyers and judges as the main protagonists. The justice system plays a primary role in the narrative of the rule of law. For this reason, in any system based on the rule of law, it is crucial that the public have confidence in the justice system.
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The rule of law is the historical tradition of Western civilisation, in which even the ruler is bound by the law. There is no higher authority than the sovereign except the authority of law, to which sovereigns and their representatives are accountable.
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The members of legal professions are called as experts to protect the principles of law
'as a restriction on arbitrary power by the state, that no man, including officials, are above the law, and that the constitution is a result of judge-made law protecting individual rights'.
In contrast, in a state of exception, the political community can dispose of people's lives,
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'unlike the normal situation, when the autonomous moment of the decision recedes to minimum, the norm is destroyed in the exception'.
In the exception,
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'the authority proves that to produce law it need not be based on law'.
Regardless, in states that are based on the rule of law or the rule of a good conception of law,
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the legal professions are responsible for aiding the government, businesses, or citizenry while ensuring that these principles are not broken.The role of lawyers as guardians of the rule of law is visible in cultural texts. Since the profession as an institution derives its power from both formal and informal sources, the lawyer's role can even be seen in popular literature. One example is William Shakespeare's
Henry VI,
where in one scene Jack Cade says, '
I thank you, good people: there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers and worship me their lord'.
Following this, Dick the Butcher declares,
'The first thing we do, let's kill all the lawyers'.
This is not a call for justice, neither is it driven by revenge. Instead, to accomplish its goals, the coup must destroy the current system's pillars: the guardians of the law.
11)
In the novel
To Kill a Mockingbird,'
the lawyer Atticus Finch is presented as a guardian of the law when he sits in front of the prison to stop a mob from lynching his client, who is in his cell. Atticus here stands against 'the exception' demanded by the mob, as his client deserves a fair trial. He does not act with self-interest by staying home in safety, but does just the opposite.12)
Lawyers play an essential role in society by protecting the rule of law, which has become the most effective normative system in society. This immediately puts much power into lawyers' hands, and as we know, with power comes responsibility.
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The lawyer's role has become critical in the fight against the threats to equality posed by modern technology, authoritarianism, and even the general decline of the rule of law. Lawyers must understand from the outset of their studies that their role is not to become rich in a world where comprehensive legislation makes legal services a necessary but expensive commodity that is not economically accessible to all citizens. Instead, the role of the legal professions is to maintain the trust of the citizenry in institutions. Failure in this regard symbolises that the legal system-the rule of law-is an insufficient authority, which can be replaced by 'the exception'. Both the history and contemporary events of Europe show that such a failure can easily lead to authoritarianism.Lawyers must be committed to the rule of law. In a constitutional democracy, members of the legal professions are not servants of the government, as in an authoritarian constitution. Nor are they servants of their clients. They are servants of the law. How did following lapses happen in a country which claims adherence to the rule of law? In the spring of 2020, thirteen judges were arrested by the police under accusations of corruption. In the summer and fall, six more joined them. The subsequent investigation uncovered that these judges had inappropriate relations with business leaders, politicians, and advocates, sometimes delivering decisions on request. These investigations have caused a voluntary exodus of judges from the Slovak judiciary, which has not been seen since 1989.
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In sum, nineteen judges were accused of corruption, and several advocates are facing charges of corruption and obstruction ofjustice.
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The discipline of legal professionals in Slovakia had been criticised even before a conversation between Monika Jankovská and Marian Kočner on the Threema application revealed inappropriate relationships within the Slovak justice system.
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In one infamous case, a lawyer charged extremely high contingency fees for representing the organisation administering the state's property.
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In another, accusations of inappropriate behaviour and corruption were made against another lawyer.
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The scandals accelerated with the findings of the police operations 'Tempest' (Búrka), 'Gale' (Víchrica),
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and 'Weeds' ('Plevel'),
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which dealt with the involvement of lawyers in criminal activity. The failure of discipline among legal professionals,
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judges and prosecutors was not initially communicated as a problem affecting the Slovak Bar Association directly, although a roundtable discussion on the rule of law and the judiciary was suggested.
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Later, after the misconduct of lawyers was uncovered, a roundtable on legal ethics was proposed.
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However, in December 2019, the Bar Association admitted the application of the so-called 'Threema judge' David Lindtner, who was suspended as a judge but became a lawyer in the meantime.
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In June 2020, the Slovak Bar Association announced that nine members of the Bar were facing disciplinary proceedings.
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In January 2021, Slovak police reported inappropriate behaviour from lawyers during an investigation of an accused businessman.
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The justice system, particularly the judiciary, has faced continual low levels of trust from the public, as reflected in surveys. According to the results of a 2020 Eurobarometer survey, 64 % of the general public ranked the justice system's independence as bad, while 26 % ranked it as good.
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For comparison, in 2017, 59 % rated Slovakia's judicial system as bad, while 25 % of people in Slovakia tended to trust it.
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In a survey on corruption, 52 % of the sample thought that bribery and abuse of power for personal gain happened in the courts, while 35 % thought that such behaviour took place in the prosecution office.
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These statistical data show what society expects from lawyers.What is the reason for such failures among members of the justice system? The present paper proposes that these failures are due to a societal decrease in disciplinary power, which is so subtle that it can go unnoticed.
2. What is discipline?
Discipline is a mechanism of power structures that regulates the actions of members within a community. It tries to influence the behaviour of individuals following a particular system of governance. As French post-structuralist Michel Foucault sees it, disciplinary power accomplishes this goal through control, through the organisation of space and time using infrastructure and timetables, and through training of individuals.
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Departing from Foucault's concept of discipline, in which power is exerted on the subject from the outside, in the present paper, the term discipline refers to as a personal conviction which the subject obeys because of allegiance to an some identity. Although discipline and the disciplinary process in the practice of legal professions refers to 'the device for the policing of conduct'
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, I use the term 'discipline' in the present article to denote not the process of sanctioning professional misconduct, but rather a subject's acceptance of a professional identity, as well as their fulfilment of professional rules and institutional roles within the legal system
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. While the disciplinary process is often used to address professional misconduct, disciplinary power in this article refers to a power that creates a subject by reinforcing an identity rather than by punishing. Disciplinary measures are taken when the discipline is broken by a subject's actions against this disciplinary power-when they act differently than is expected within an organised space and time.Discipline is a result of long-term exposure to training, which is usually imperceptible, even to the individual experiencing it. Such training is called by less obtrusive names, such as ethics, morality, civility or duty. Discipline is a consequence of repetitive processes within organised surroundings in the contexts of communication, upbringing, education and professional training. It is also a result of a process whereby cultural constructs of a political system over time become a natural part of everyday life within that system.
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Long-term exposure to a system's processes shapes the values, attitudes, and identities of its members. This process of discipline is part of everybody's life. No one is free from it. There is nothing wrong with it, and the intention here is not to criticise or fight this process, but rather to point out its characteristics and encourage awareness of its role in the educational process. Foucault wrote that the disciplinary process creates 'docile bodies'.
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It has played a crucial role in the functioning of large, modern societies through its norm-creating capacity and its categorisation between normal and abnormal.Discipline within political systems plays a central role in the structure of every community. It helps the community to organise itself and accomplish goals that are crucial for its survival and development. The disciplinary process shapes our perception of institutions in social life. Communication is more effective and quicker in disciplined communities, as members can spend less time clarifying their attitudes and the reasons behind them.
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The goal of discipline in any profession is to create predictability in action. The legal profession exists to meet the expectations of clients and the courts. For this reason, when discipline is lacking, the whole structure of the justice system falls apart.Discipline is rooted in acceptance of an identity and a position within the society.
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It is essential that legal professionals understand why they have accepted this identity, what duties the profession requires of them, and the reasons for these duties. The professional must be aware they are being disciplined-ascribed an identity-and yet still decide to accept this identity positively. If they perceive this professionalism as a negative, they should leave the profession due to untenable conflicts of consciousness. However, discipline does not function like a graduation certificate, which can be acquired once and is valid for the rest of time. The process of discipline is rooted in repeated activities which continuously confirm the subject's commitment to the profession. Most of the time, individuals are unaware they are acting in response to some external influence because the discipline has become a part of their own self-perception and they consider the desires of the collective disciplinary power as their own.
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The individual accepts the identity of the subject-in our case, the legal professional. Following the rules of the profession, performing the activities that characterise the members of the profession, even wearing proper clothes, displays an acceptance of this identity. This positive acceptance is discipline.2.1 The Origins of Disciplinary Power
In pre-modern society, power came from the top down. When order was disrupted by crime and sovereign power was challenged, an execution symbolically re-established order. The audience was an essential part of the execution, as the exercise of symbolic power needed to be seen.
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However, beginning in the 18th century, society began to disapprove of such atrocious punishments, so the sovereign needed to be detached from the condemned. Crime has also changed. With structural changes in the economic system, criminal activity now often focuses on seizing goods, rather than attacking bodies. As such, Foucault claimed that the shifts in punishment practice do not indicate greater humanity, but rather a desire to punish more effectively.
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The legitimacy of power also changed during this time. Patrimonial theory was replaced by social contract theory.
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Citizens implicitly enter a contract with the sovereign, claiming obedience as long as the sovereign intended to be subordinate to a collective normative system of rules. The criminal then becomes a paradox-a person who consents to being punished when not acting with discipline or according to norms. The narrative of punishment shifted from the vengeance of the sovereign to the protection of society from the abnormal. The punishment's goal was no longer to perform a ritual of power but to reduce the risk that a criminal would repeat their crime.Foucault noticed the emergence of a new type of power concurrent with the emergence of the new penitentiary system in the 18th century. He saw in this new type of power a resemblance to an everyday practice that previously occurred mostly in monasteries and armies:
"Corrective penalty acts on the soul instead of representations, forms of coercion operate here. Exercise, timetables and plans all try to restore the obedient subject, who obeys habit, rules and orders'
.
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He charted how the power structure changed prior to the 18th and into the 19th century. He recognised the shift from sovereign power-a power over death, defined by corporal punishment and the spectacle of execution-to disciplinary power, which does not reduce but rather produces efficacy. Sovereign power
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