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01_Introduction - Dispute Resolution and Legal Ethics 01...

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Dispute Resolution and Legal Ethics 01 – Introduction Page 1 of 15 P ART I I NTRODUCTION 1 L EGAL E THICS 1.1 Introduction Legal ethics consists of an examination of the behaviour and responsibilities of lawyers. A legal ethic is a normative scheme applied to regulate their conduct. Legal ethics is an enquiry distinct from the content of legal rules and principles; it is not the ethics of law. Rather, it is the ethics of professional lawyers in practice. Ethics is normative. It entails consideration of how lawyers ought to behave, and evaluation (by reference to normative criteria) of how they do behave. 1.1.1 What is Ethics? An ethic is a framework against which actions and character may be evaluated. Action: what does it mean to do the right thing in a particular situation? Character: what does it mean to be a good person? 1.1.2 Sources of Legal Ethics There are several sources of legal ethics: Pragmatic o Professional conduct rules o Provisions regulating legal practice o Legal obligations in tort, contract, etc Abstract o Normative philosophy as applied to the behaviour of lawyers Three normative frameworks arise out of these sources: ` Personal (the subjective views of the lawyer) o Family o Friends o Faith o Politics ` Professional (the objective framework of lawyers’ ethics) o Role of lawyers o Professional conduct rules (admission, disciplinary codes, fiduciary duties, obligations under contract and in tort) o Practices and customs o Legal Practice Act , Professional Conduct and Practice Rules (‘PCPR’) ` General (broad ideas about ethics)
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Dispute Resolution and Legal Ethics 01 – Introduction Page 2 of 15 o Justice o Social and environmental responsibility o Harm-avoidance These different approaches to legal ethics are frequently in conflict. 1.1.3 Analytical Framework The following three-stage process is suggested for analysing ethical issues: 1 Identification What is the ethical issue? 2 Application What ethical standards and principles are applicable? 3 Implementation What practical measures will be undertaken to resolve the issue? Any ethical enquiry must start with identification of the relevant issue. It must proceed with principled analysis of that issue. The results of that analysis must be mediated by practicality and implemented in a realistic way. 1.2 Example of Ethical Dilemma: ‘McLibel’ In 1990, McDonald’s served five writs of libel upon volunteers involved in the United Kingdom activist group responsible for publishing a document entitled ‘What's Wrong With McDonald's?’. McDonald’s demanded that they retract their allegations and issue an apology, or they would proceed with the defamation action. (See http://www.mcspotlight.org/case/trial/story.html for details.) Would you take on this case for McDonalds? Would you work pro bono for the plaintiffs?
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