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Do Lawyers Need Codes of Ethics? A case study from the Czech Republic

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.
code of ethics, lawyer, judge, prosecuting attorney, Czech Republic
The 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'.
Such a number shows that it is a truly popular
and a quick look at the content of individual hits may lead us to believe that it is also an extremely popular
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.
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.
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.
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"'.
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,
or recommendations and advice received from more experienced colleagues.
Over time, various codes have become an increasingly frequent fixture of legal practice.
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.
In particular, the code of ethics gives candidates a notion of the traditions of their profession and their professional responsibility.
Additionally, a code of ethics can be used in formalised education organised by professional chambers, as well as in individual study.
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.
Moreover, the wording of codes of ethics is usually used in academic explorations of the ethics of the legal profession,
as well as in the public consideration of specific cases.
Codes of ethics also have a regulatory function,
which is clear in the case of formally enforceable codes of ethics,
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' on the personal level and an instrument of informal pressure from colleagues on the social level.
Public commitment to codes of ethics may justify the trust which the legal profession warrants from the public. Via such codes, the profession commits to values and ideas, and imposes on itself high or increased expectations.
On the other hand, the public could use codes of ethics for oversight of the profession and criticism of professional practice.
Finally, codes of ethics may be desirable because the notion of what it means to be a good lawyer, attorney, judge etc. is fragmented, particularly in a dynamically changing world with a prevailing trend of openness to different opinions and attitudes. Codes of ethics therefore represent an indispensable unifying element.
1.2 Arguments against codes of ethics
There are many objections we may raise against codes of ethics. A principle-based objection challenges the existence of codes of ethics
per se.
If decisions are to be made by free moral actors,
then codes of ethics represent a useless set of externally prescribed rules, because adherence to an external rule does not constitute moral action.
In a similar spirit, another argument states that morality cannot be legally or formally represented:
'Ethics... are not something that can be legislated, but are something an individual either has or does not have"
The first part of this quotation indicates that institutionalising moral rules tends to narrow down and simplify those rules. Incorporating moral rules into a code of ethics deprives the rules of their moral nature, and they become legal or quasi-legal rules. This brings about an unacceptable reduction of their content.
The second part of the quotation casts doubt on the importance of pre-existing texts for moral actors. Individuals formulate their impressions of moral processes from sources other than texts, such as from the wording of professional oaths, from older colleagues etc.
Another source of criticism is the lack of trust in the profession, or in professional associations as a whole. In particular, if a profession is subject to self-regulation or has significant influence on the regulation applied to it, a situation can arise in which the wolf is set to mind the sheep. The conflict of interest between a profession and the public may lead to the introduction of rules that serve to protect the profession rather than impose relevant requirements on the professional.
Even when rules are introduced in good faith, they may come across as simple compromises rather than noble aspirations. When codes of ethics are being formed, the requirements and demands of lobbying factions within each profession, each with their own interests, must be taken into account.
Relatedly, the adoption of a code does not necessarily mean that a profession is making an effort to limit itself and set ambitious goals, it may simply be a facade-a political act undertaken when the profession is beginning to lose public trust.
In selfregulating professions, there is often concern over class bias, whereby a group of regulating persons sets the rules to suit their own interests, failing to take into account and perhaps even violating the interests of other members of the profession.
Some authors go even further in their criticism, asserting that codes of ethics have an adverse effect on the quality of moral thinking because they prevent the moral development of an individual. If a code sets the minimum standard (or the abovementioned compromise), adherence to such a code produces moral mediocrity at best.
In this way, moral decision-making using a code of ethics may hinder actual morality: instead of basing a decision on personal moral deliberation and acceptance of personal moral responsibility, an actor may apply regulations in a mechanical manner.
The overviews provided in 1.1 and 1.2 are not exhaustive, but rather basic outlines, and different authors may vary in their classification of the reasons given for and against codes of ethics. For example, Vincent Johnson
mentioned the educational and aspirational functions of codes under their so-called declaratory function. Similarly, Nancy Moore
claimed that codes of ethics serve to gain the public's trust and that they reflect the responsibility of a profession towards the public. She referred to these aspects as the ideological function of the codes. I disregard these nuances because the purpose of this text is not to relay similar content from multiple authors, but rather to present the basic content itself.
1.3 To have or not to have a code of ethics - an interim summary
As already stated in the introduction, I believe that legal professions should have their own codes of ethics, although I have some reservations. In my opinion, the arguments presented above in favour of codes of ethics are convincing, as are several criticisms of the arguments against codes of ethics. Below is a brief overview of such criticisms.
I agree that true moral decision-making can only be accomplished by a free individual. However, in my opinion, codes of ethics may contribute to such decision-making. It is misguided to imagine moral decision-making as a hermetic, internal, private process. Although individuals are entitled to assume that an action that accords with their conscience is morally correct, others may consider the same action morally wrong or indifferent based on their own conscience. This conflict reveals the dialectics of conscience: individuals act based on a conviction of the general moral correctness of their actions, but such convictions are necessarily subjective. Uncertainty caused by moral conflicts with other individuals necessitates discourse, in which interlocutors seek acknowledgement of their subjective opinions as generally valid.
In the situation described, a code of ethics may play at least one beneficial role: that of the other individual. Although the decision-making supremacy of the free individual remains, the code of ethics may serve as an invitation to a dialogue and a more thorough consideration of one's own positions, particularly when the conclusions of the individual conflict with those of the code. On the other hand, the code may concord with the conclusions of the individual. This illustrates the role of codes as the 'conscience of the profession'. Individuals should be regulated by the code only because the norms of the code are convincing and after moral deliberation. As such, the individual should always have the final say in moral decision-making. In my opinion, this applies to both formally unenforceable and formally enforceable codes. However, in the case of the latter, the moral deliberation of an individual may be influenced by the thought of violating a legal rule, as stated in the adage
'it is not morally correct to violate the rules of a professional regulation'.
Moreover, individual decision-making may be influenced by the extra-moral apprehension of punishment for a violation; after all,
'acting against my conscience but in accordance with the regulation is preferrable to legal sanction'.
I also agree that the discourse about morals within any profession cannot be reduced to a code of ethics. However, I do not b
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