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律师的责任与天职

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发表于 5/18/2017 19:46:04 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 5/18/2017 19:48 编辑

法律终止之日便是暴政开始之时
Where Law Ends Tyranny Begins

Jacobson Sol

主旨: 欧洲和美国许多世纪以来,唯有三个专业被公认为富于学问并被广为尊重:神学,医学和法律。因为这些专业均涉及某种自由的教育,专业的学习,和高水准的行业自律。更重要的是,每一专业均要求由一位诚信的执业人员按照职业伦理和专业标准提交一份某人职业道德品行良好的推荐证明函。由于法律职业自古迄今一直以追求正义,公平和个体自由,那怕是对抗政府为宗旨,律师几个世纪以来一直成为暴政和独裁者首要打击的目标。为维护社会正义公平和个体自由的价值,律师在服务当事人和社会时尤其必须拥有自由和独立的地位。但行使这种自由和独立,不可避免涉及“焦虑的责任”.  这种焦虑的责任是指:“律师是由法院任命的协助法院司法行政的官员。交到他们手中的是财产,自由,有时甚至是其当事人的生命。此种职责要求高智商,丰富的法律知识,考虑到他们的社会作用,理智诚信的判断力及在私人和专业领域表现出的正直品格”。
       我们是法治而非人治的政府,当法律终止时,必然是由人的随心所欲反复无常取而代之,暴政随之而来。我们的司法结构设计是一种对抗式制度,旨在制约(官员)行使任意的绝对权力。正如阿克顿勋爵指出:“权力导致腐败,但绝对权力绝对腐败。[1]”虽然律师有义务对当事人热诚,同时他承担避免有损法庭司法程序尊严的责任。
       法律历史上律师们竭尽全力维护人的尊严和社会正义不乏其例。用富兰克林法官的话来说:“公平地说在我们的社会中律师的责任,就象一面捍卫个体权利防止司法错误的盾牌。”
       在法律职业中,个人事业的成功和发展公共利益之间经常是相互的因素。成功地构建起一个赢利丰富的法律职业,时常依赖于通过激励公众参与行动改进法律作为社会调节争议的仲裁者,提高法律职业的正直和荣誉感,促进司法管理的质量和效率,伴演其在社会机构体制中维护有序自由的作用。
      每位律师均负有庄严的责任:鼓励人们尊重法律和法院,维护法律职业的荣誉和正直,改善法律和司法结构。正直是法律职业的正义之气。若法律丧失此种正义之气,法律将终结,而暴政随之开始。

  For many centuries in Europe and America, only three professions were recognized as learned and honorable: theology, medicine and law.
   These professions were distinguished from other callings because they involved a liberal education, specialized learning and training and a high degree of self-discipline. More importantly, each profession required proof of good moral character supported by a sincere personal commitment to practice in accordance with the ethical precepts of the profession.
   In theology, sacred vows to serve God and mankind continue to be a fundamental part of the ordination ceremony in almost all religions. In medicine, the Hippocratic oath, dating back to the fifth century B.C., still expresses the physician's responsibilities to his patients and to his profession.
The legal profession has framed canons of ethics defining moral responsibility which date back to the Inns of Court in medieval England. Broadened and modernized from time to time, these canons of ethics still govern lawyers.
   Because the legal profession throughout history has been dedicated to the pursuit of justice, equity and individual liberty-even in opposition to the State itself-lawyers over the centuries have been the first target of tyrants and dictators. To preserve the social values of justice, equity and freedom, lawyers in particular must be free and independent in serving clients and society.
But this freedom and independence are indissolubly coupled with, to use the words of Mr. Justice Frankfurter, "anxious responsibilities."[2] What, in concrete terms, are these "anxious responsibilities"? One court has summarized them as follows:
Attorneys are officers of the court appointed to assist the court in the administration of justice. Into their hands are committed the property, the liberty and sometimes the lives of their clients. This commitment demands a high degree of intelligence, knowledge of the law, respect for its function in society, sound and faithful judgment and, above all else, integrity of character in private and professional conduct.[3]
   Let us briefly analyze the meaning of each of these precepts:
KNOWLEDGE OF THE LAW
   When a person is faced with the need for a lawyer, he wants and is entitled to one with skill and competence. No client is reasonably entitled to expect his lawyer to have all the answers at the tip of his tongue or stored away in his brain like a computer responding instantaneously to a retrieval impulse, but the client does have the right to expect his lawyer to have a respectable fund of usable knowledge, to be willing to devote his time and energies to the necessary research, thought and analysis. In other words, the lawyer's personal commitment is to advise and to represent his client competently and to the best of his skills and abilities.
   Competence is not easily acquired. It requires continual study and reflection. One must continue to be a student of the law and be involved in the activities of the organized bar. This means keeping abreast of current legal literature, participating in continuing legal education programs and engaging in bar association activities.

RESPECT FOR THE ADVERSARIAL SYSTEM

Ours is a government of laws, not of men. When law ends and is supplanted by man's whim and caprice, tyranny begins. As Lord Acton stated, "Power tends to corrupt, but absolute power corrupts absolutely."[4]
   Built into our legal structure is an adversarial system designed to curb the exercise of absolute arbitrary power. Lawyers are advocates in this adversarial system. As advocates, they have a solemn duty to represent clients zealously, but at the same time, they have the duty of treating all persons involved in the legal process with courtesy and consideration.
   Judicial proceedings must be conducted in an orderly and dignified manner if the rights of all parties are to be protected. Though a lawyer is obliged to be zealous, he bears the responsibility of avoiding conduct that offends the dignity and the decorum of the judicial proceedings. Offensive and disruptive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our adversarial system.
    Several court trials have aroused high public interest because of scandalous disruptive behavior by defendants and by counsel. These tactics, designed to use the courtroom as the forum in which to propagate political ideologies, tend to erode respect for the law and its administration.
   Contempt of court is only a partial remedy to the problem and then only after the fact. In my judgment, the organized bar must be prepared to take prompt disciplinary measures to deal with flagrant violations by lawyers of professional responsibilities. Deterrence from misconduct should be the basic aim. While full cognizance should be taken of the lawyer's duty of zeal, zeal beyond reasonable bounds is destructive of the adversarial system and of the administration of justice.

REPRESENTATION FOR ALL
   Access to the courts would be illusory unless representation by counsel is recognized as the responsibility of the legal profession. Recent decisions of the United States Supreme Court have emphasized the rights of the poor and the indigent to be represented by counsel when unable to afford their own lawyers.[5] It is my hope that new lawyers will generously allocate a fair and reasonable amount of time and energy to the professional obligation of representing the poor and the indigent.
    Public confidence in the legal profession and in the administration of justice would be undermined if lawyers did not have the courage to represent unpopular clients or causes. These, too, are justly entitled to their day in court.
    The biases, prejudices and prejudgments that have free play outside the courtroom are excluded by the rules of procedure and evidence in the trial of an issue, rules which have evolved from centuries of experience. These evidentiary and procedural rules would be meaningless if the man with an unpopular cause should find it impossible to obtain a competent lawyer to represent him.
    Many lawyers should be commended for their courage to represent clients and causes regarded as deviant from society's accepted mores. In representing unpopular clients and causes, lawyers have brought distinction to themselves and to the legal profession.
In this respect, one need only to recall the Captain Dreyfus case in France, the Sacco and Vanzetti caze in Massachusetts, the Scopes evolution case in Tennessee and the Scottsboro case in Alabama. Many others could be cited, for legal history is replete with instances of lawyers giving their utmost to vindicate human dignity and social justice.
   In the words of Mr. Justice Frankfurter "it is a fair characterization of the lawyer's responsibility in our society that he stands as a shield' . . . in defense of right and to ward off wrong."[6]
   Courage is an essential ingredient if the lawyer is to stand "as a shield in defense of right and to ward off wrong," especially for the "socially disreputable" client or cause.
   President Theodore Roosevelt once declared that "every man owes of his time to the upholding of the profession to which he belongs." It is this obligation which largely distinguishes a profession from a business.
Rather than the primary goal of financial success as is true in business, the primary goal of a profession is the common good.
In the legal profession, personal success and advance of the common good are most often reciprocal factors. The successful building of a lucrative law practice frequently depends upon the prestige gained through public-spirited activities designed to improve the law as a social regulator, to raise the integrity and the honor of the legal profession and to advance the quality and efficiency of the administration of justice in its role as a social institution to preserve ordered liberty.  
Every lawyer owes solemn duties to encourage respect for the law and for the courts, to uphold the honor and integrity of the legal profession, and to improve the total legal and judicial structure. In the last analysis, integrity of the legal profession is the breath of justice. Without it, law ends and tyranny begins.





[1] Acton, Letter to Bishop Mandell Creighton, April 5, 1887, reprinted in Aeton, Essays on Freedom and Power (Boston: The Beacon Press, 1949), p. 364.

Sol Jacobson,Where Law Ends Tyranny Begins, 55 Judicature (1971-1972)  p, 338 to 340
*SOL JACOBSON is a professor of economics at Brooklyn College, New York, and a member of the New York State Bar. He wrote this article after visiting England and being impressed with English courtroom decorum.
[2] Schware v. Board of Bar Examiners 353 U S 232, 247.

[3] In re Monaghan 126 Vt. 53, 222 A 2d 665, 676.

[4] Acton, Letter to Bishop Mandell Creighton, April 5, 1887, reprinted in Aeton, Essays on Freedom and Power (Boston: The Beacon Press, 1949), p. 364.

[5] Gideon v. Wainwright 372 U.S. 335; Illinois v. Griffin  351 U.S. 12.

[6] Schware v. Board ol Bar Examiners, supra.



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