Australian Legal Professional Practice - Essay Example

Australian Legal Professional Practice Introduction The high level of significance laid upon the professional responsibility and the ethical behavior of lawyers during the practice of Law – has for a long time been an area given emphasis by legal practitioners, as an epicenter of their legal profession. However, it is a common contention – that considering the painstaking which legal practitioners must go through, before they are admitted as members of the bar, excess care is exercised during practice. Also, the institutionalized convention in terms of conduct – to which they must accord adherence, if they intend to remain as members of the bar, make the discussion or the consideration of these areas only significant, in the cases where consideration has been offered to a one-off and secluded instances of unusual conduct (Vines 73). However, opposed to this conventional code – Legal Ethics and Professional Responsibility by Allan Hutchinson develops a credible case argument that – this perfectly structured code does not serve the profession well – especially considering the dynamics of legal practice and the subject matters. He further disputes that the thoughtful variations in the mode, according to which legal practice is carried out, as well as the demographic variations among those who practice it, require the usage of a new methodical approach to the matter. In this case, the argument is that the adopted modality should be one that stresses more on personal responsibility than professional codes and regulations. The arguments contained in the book are – largely a handy preface to legal ethics and professional accountability at a personal level – for the scholars of law as well as a provocative call for changes within the profession in general (Hutchinson 42) (Hutchinson 57). The concept of introducing the aspects of legal ethics and professional responsibility as opposed to the strict code of guidelines is necessary to the practice of law, where the dynamics of the society are proving that changes in definitions are varying and developing on a daily basis. To be cited in this case, are the cases of cyber crime – which are either not covered or deficiently covered in earlier versions of the legal practice code of conduct and practice. This paper will be a documentation of the justification for this varied approach in the practice of law – which is supposed to provide a more accommodative field of practice, and give reasons and justifications as to why it is not enough for a lawyer to simply follow the guidelines of legal practice. The paper will also explain on what other sources or resources may be useful towards a more effective legal practice – with reference to Australian legal practice (Milne 112)(Zines 130). The basic proposition in question is that lawyers – despite being guided by the Legal practice guidelines, have to employ their ethical and professional sense of responsibility in the making or arriving at distinctive resolutions. This is the case, as the guidelines simply offer a basic framework within which the ultimate decision is to tend – but not any definite resolutions regarding the issues at hand. In this case, the moral and professional judgment of the lawyers is to be put to use – in defining the appropriate course of action or decision to be taken, for the case at hand. This paper’s argument is fully in agreement with the basic proposition in question – and will be backed up by solid evidence to precisely show how the personal – as well as the moral judgment of the Lawyer are a major requirement in legal practice, if only legal practice is to be completely accommodative of each case and legal situation (Howard 75). Further, the education and training of legal practitioners may also be necessary in other areas – where more personal, moral know-how and judgment may be necessary. This may be required – as the operations of the legal framework often will call for informed opinions and in-depth know-how – mainly due to the dynamics of human relations and the modern society, which make up the epicenter of legal practice. One of these areas that really call for legal ethics and professional responsibility from lawyers is that of the nature, dynamics, and the effects of family violence, where areas like sexual assault – found at the center of the family violence context is given critical regard and review. In support of the personal responsibility to be exercised by lawyers in this area, is that consistent definitive meanings of family aggression across the varied legislative schemes – namely the state and regions need to be clearly understood. This is the case, as a common understanding of the types of the varied conduct that constitute or amount to family violence is to be formed or understood. The professional responsibility of the lawyers is also called upon, in the cases where implementation gaps are evident – for example in the area of sexual assault, mainly because written law and the practice in operation often are not in line with each other. Such a case is traceable in the case where some individuals, parties or localities give consideration to myths and misconceptions related to the nature and the dynamics to be considered when citing acts like sexual assault. The need for practicing Legal Ethics and Professional Responsibility on the part of Lawyers can also be traced to the need for in-depth understanding in the area of the nature and the dynamics surrounding conduct like gender or family violence. This is the case, as the chain of conduct goes further to impact on the victims and their families – creating the need for a solid understanding of the complexity of the matter, and the effect of the decisions arrived at – on the victims, who in such a case include the children. Further, the need for these adjustments is called-for, considering that the pursuit to attain and ensure that the best interests of a given client may require that the Lawyer goes out of the expected code of conduct. In this case, a Lawyer acting on the basis of pursuing the interest of the client may have to give consideration to the common interest – say of the society or the reference institution, where the common interest will be treated as a variable in determining the options and the choices that the Lawyer will take. In the cases where a Lawyer is facing an ethical dilemma – it is clearly insufficient for them to use or follow the rules and the guidelines of lawyering. This is the case, mainly because in the area of exercising professional responsibility in any case – where a dilemma is evident – reference is to be given to different sources of legal practice credibility. Some of these sources include: past cases and case laws; the professional rules of formal and professional execution of duties; the legislation of the Australian region, these including enabling and delegating acts, as well as the guidelines imposed by different authority ranks like state government agencies and local governments. For the Australian legislation case, Lawyer’s practice must adhere to and be in line with the provisions and the statutes formulated by subordinate legislation centers and units. This is mainly is the case, as there is need to adhere to the per-case consideration, though these may in certain instances conflict with the mainstream legislation codes guiding the legal practitioners. Some of these subordinate legislative guidelines that are to be given due considerations include: the ‘common wealth subsidiary legislation,’ which is available at the facilitation of the ‘Federal Register of legislative Instruments,’ which is handy to comlaw – thus an authoritative source for the dictation of common wealth lawmaking implements. In support of this view are the statistics reflecting the changes in legislative codes and provisions which are taking place as the time goes by. As at October 14, 2010 for instance – in the area of commonwealth legislation: 114 Acts were passed, 239 subordinate legislation units were made, and 52 legislation units in the same field were uncommenced (Blackshield & Williams 120). Taking account of these legislative changes and developments and modifications, it’s conclusive that the usage of the guidelines of legal practice, alone, may not be substantial in solving dilemma cases during legal practice. One instance, in which the legal ethics and professional responsibility to choose may be called upon in deciding the dilemma – is the case involving the dilemma of too much choice for local council workers. The issue at hand was whether the local council unit falls under the state industrial system or work choices system. In this very case, the minister in charge of workplace relations Joe Hockey has written to the council units requesting that they should sign up to work choices – an option which is not congruent with the view of the Queensland government unit as well as the workers Union of Australia (Fear 23-31) (Williams). Considering the dynamics of legal practice – the changes in the complexity of the society and the legal issues thereof, as well as the individual case variations that are occurring in the course of legal practice – it’s fully conclusive that the consideration of other sources to substitute the code of lawyering is needed. This is the case, if not for any other reason, for the fact that the provision in the legal practice codes only provide an armature framework of the decisions and the course to be taken, and not in any way, definitions regarding each of the cases in question. One of the resources, which are very important in supporting the Australian legal practice of lawyers, is the Comlaw provisions which are undergoing revision and modification from time to time. Some of the legislative provisions falling under this category include acts like: The competition and consumer Act of 2010, the corporations Act 2001, the healthcare identifiers Regulation and consequential amendments of 2010, and the paid parental Act of 2010. Other credible resources in Australian legal practice – which form resourceful centers include: the common wealth laws of Australia, the constitutional laws of Australia, which are prescribed and revised by the constitution; Australian statutes, which are enacted by the parliamentary counsel on a continuous basis; the common law, which seeks to harmonize the common law of the Australian people; and the equity law, which seeks to ensure that there is a single definitive equitable claims standard in Australia. Other resources include the customary law base, where exceptions are allowable – if in line with the provisions of such laws, which may not always be in line with the mainstream legislative code (Parkinson 134). Another highly significant resource is the international law legislative base, which is the standard on which the Australians are to use as reference in relating and dealing with the international society (Reynolds 87) (Campbell 65). Works Cited Blackshield, Tony., & Williams, George. Australian constitutional law and theory: commentary and materials, 4th ed., Sydney: Federation Press, 2006: 120 Campbell, Enid. Et al. Legal research, materials and methods. Sydney: Lawbook, 1996: 65. Fear, Joanna. Researching Queensland Legislation, Australian Law Librarian. March, pp. 23-31 Howard, Colin. Australian federal constitutional law, 3rd ed. Sydney: Lawbook, 1985: 75. Hutchinson, Allan. 'An Alternative Vision: A Contextual and Pragmatic Approach' in Legal ethics and Professional Responsibility. Irwin Law. 1999: 42 Hutchinson, Allan. Legal Ethics and Professional Responsibility, 2nd edition. Irwin Law. (October 2006): 57 Milne, Sue. & Tucker, Kay. A practical guide to legal research, 6th ed. Pyrmont, NSW: Lawbook, 2008: 112. Parkinson, Patrick. Tradition and change in Australian law, 3rd ed. Sydney: Lawbook, 2005: 134. Reynolds, Thomas. & Flores, Arturo. “Australia ", foreign law: current sources of codes and legislation in jurisdictions of the world. Buffalo, N.Y., Hein, c1994. 87. Vines, Prue. Law and justice in Australia: foundations of the legal system, 2nd ed. South Melbourne: OUP, 2009: 73. Williams, George. Dilema of too much choice. The Australian News. April 28, 2007 http://www.theaustralian.com.au/news/features/dilemma-of-too-much-choice/story- e6frg6z6-1111113426999 Zines, Leslie. The High Court and the Constitution, 5th ed. Sydney: Federation Press, 2008: 130 Read More