FRIEDEL, T.: Do Lawyers Need Codes of Ethics? A case study from the Czech Republic. Právny obzor, 103, 2020, special issue, pp. 3-22.
In the second part, the situation in the Czech Republic is analysed in detail, with special focus on how the codes are treated in the practice of the professions. The analysis leads to a common conclusion, which may be the most important point surrounding codes of ethics, even if it is somewhat banal. That is, to ascertain whether a code of ethics benefits the profession, it is not sufficient to think about it in general categories; instead, we must examine the content and overall status of each specific code and to observe more closely the practice of its usage.
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Keywords:
code of ethics, lawyer, judge, prosecuting attorney, Czech RepublicThe popularity of codes of ethics
Two hundred and twenty-nine million. This is the number of hits displayed by Google in a search for the term 'code of ethics'.
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Such a number shows that it is a truly popular
term,
and a quick look at the content of individual hits may lead us to believe that it is also an extremely popular
institution.
There are codes of ethics for the American Pharmacists Association, for the public officers of the Republic of Mauritius, for the Community Learning and Development Standards Council in Scotland, and for the members of an association promoting the responsible breeding and welfare of purebred dogs (DOGSNSW, Australia).This raises the question: Do we need codes of ethics? And do lawyers need codes of ethics? Judging by how frequently codes of ethics are used, it would seem they definitely do. If a company that sells cannabinoids has a
Code of Business Conduct & Ethics,
it is hard to imagine a world in which attorneys, judges and prosecutors do not have their own.
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The situation becomes more complex when we consider individual codes of ethics in more detail. The distinguishing features among various codes of ethics are numerous. Some codes are binding and others are not. (The binding codes may be effectively or ineffectively enforced.
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There are extensive and concise codes, general and detailed codes, influential and ineffective codes. In some cases, the code of ethics is just a label behind which to hide commercial or other interests; in others it resembles a tombstone under which an annoying topic rests in peace. Of course, there are also reasoned opinions claiming that we can easily live without codes of ethics.In short, in the case of codes of ethics, the old adage applies that the devil is in the details. Therefore, a relatively simple question concerning the need for codes of ethics requires a more complex, structured answer.
In this text I explain why I believe lawyers today need codes of ethics. I also argue what content the code should contain and how it should be applied in legal practice. First, I present arguments in favour and against codes of ethics. Next, I address whether codes of ethics should consist of provisions of principle or rather regulatory provisions. The last chapter before the conclusion provides a brief introduction to professional codes in the Czech Republic. As such, the order of the chapters follows a simple logical progression from general issues to specific ones.
The text primarily uses sources involving attorneys-at-law, who typically attract more attention than other legal professionals in terms of ethical behaviour. Nonetheless, my arguments relate to legal professions in general, although Chapter 3 is more specific. For the benefit of readers, I have exclusively used those theses and arguments that I consider applicable to the legal profession in general. (The paper deals mainly with judges, prosecuting attorneys and attorneys-at-law. Of course, individual professions have their specific features, but I believe that the general conclusions of the text are applicable across legal professions.) Conversely, theses and arguments from my sources that are only applicable to one of the legal professions have been left out or only briefly mentioned.
I use the term 'codes of ethics', although it may be more precise to write about codes of morality. Given that ethics is the science of morality, the term 'code of ethics' seems inappropriate in this context. Consider a simple 'translation' of the term: 'code of the science of morality' does sound somewhat strange. Nonetheless I use the term 'code of ethics' because it has traditionally been used and thus become a generally comprehensible term.
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For the purposes of this text, I consider a code of ethics to be a
'formal statement of standards which the professional consults to guide his or her behaviour. It represents a statement of the roles professionals ought to assume in specific situations. To that extent, a code is a formalized statement of role morality, a unitary professional "conscience"'.
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1. Codes of ethics - raison d'etre a criticism
Codes of ethics are a relatively new phenomenon in legal professions, although this does not necessarily mean that lawyers had no interest in ethics in the past, genuine or just declared. Their interest simply had a different form. Typically it involved oaths, legal rules communicated in various forms,
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or recommendations and advice received from more experienced colleagues.
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Over time, various codes have become an increasingly frequent fixture of legal practice.
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Why is this? And what are the arguments against the institutionalisation of morality in codes of ethics? The answers to these questions are offered in this chapter.
1.1 Arguments in favour of codes of ethics
First, codes of ethics have an educational function. They are, or at least can be, a record of the moral principles, rules, values and ideas of a given profession.
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In particular, the code of ethics gives candidates a notion of the traditions of their profession and their professional responsibility.
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Additionally, a code of ethics can be used in formalised education organised by professional chambers, as well as in individual study.
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Put briefly, codes of ethics are an easily accessible way to share information about the moral requirements of a profession.
Codes of ethics contribute to the discourse on ethics by focusing attention on selected moral topics. This role becomes most perceptible when a new code is drafted or an existing code is amended. Such processes require a comprehensive assessment of current issues. As such, individuals who are informed about the debate must be involved.
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Moreover, the wording of codes of ethics is usually used in academic explorations of the ethics of the legal profession,
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as well as in the public consideration of specific cases.
Codes of ethics also have a regulatory function,
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which is clear in the case of formally enforceable codes of ethics,
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but can also be seen in other instances. Even codes that have no disciplinary character can impact professional conduct; for professionals, such codes are an expression of professional 'conscience