Proposals for Amendments to The Mt. Scopus Standards
1) Online Dispute Resolution ODR
The Challenge of Online Justice
The difficulties in this field must be recognised when facing a client or customer on one side and an automatic machine on the other. It is important to demand every large, powerful company that has a dispute resolution center to deal with disputes between company and clients to have a consumer justice officer who will have the authority to rule in such disputes. Furthermore, this justice officer should not engage at the same time with ordinary tasks of the corporation.
We must meet the challenge of the emerging and increasing recourse to online justice practices and procedures whereby consumers are compelled to work out disputes and arguments against major companies online or in digital procedures. The digital procedures of handling consumer complaints are conducted by phone centers and call centers which sometimes are not even in the jurisdiction where the dispute arose, but are conducted by out-of-jurisdiction outsourcing call centers.
In addition to this type of online dispute handling, there is an increasing recourse to online justice in divorce where uncontested divorce is completed totally by internet communication with the relevant court or state agency. When in such a procedure impartiality and fairness are not maintained, the outcome of some very important issues can be affected, from distribution of the marital estate to co-parenting plans and other important issues.
The solution is to require separate complaints officers, meaning the ordinary company departments such as accounting and finance departments must be separate from the departments that handle disputes. This second department must also be presided over by persons who enjoy independence from the accounting and financial officers of the company if the goal is to be attained.
Proposed Amendment to Mt Scopus: ONLINE JUSTICE
Complaints Officers in Government Agencies and business Firms shall be appointed in separate complaints department that handles digital or online disputes with consumers and shall not hold parallel functions in ordinary company departments such as accounting and finance departments
The complaints department must be separate from other departments.
This complaints department must be presided over by persons who enjoy independence from the accounting and financial officers of the company.
The procedure should insure fairness.
2) Lawyers and Bar Associations
Montreal Declaration on the Independence of Justice 1983
3.01 In this chapter:
"lawyer" means a person qualified and authorized to practice before the courts, and to advise and represent his clients in legal matters;
"Bar association" means the recognized professional association to which lawyers within a given jurisdiction belong.
3.02 The legal profession is one of the institutions referred to in the preamble to this declaration. Its independence constitutes an essential guarantee for the promotion and protection of human rights.
3.03 There shall be a fair and equitable system of administration of justice, which guarantees the independence of lawyers in the discharge of their professional duties without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3.04 All persons shall have effective access to legal services provided by an independent lawyer, to protect and establish their economic, social and cultural, as well as civil and political rights.
Legal Education and Entry into the Legal Profession
3.05 Legal education shall be open to all persons with requisite qualifications, and no one shall be denied such opportunity by reason of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status.
3.06 Legal education shall be designed to promote in the public interest, in addition to technical competence, awareness of the ideals and ethical duties of the lawyer, and of human rights and fundamental freedoms recognized by national and international law.
3.07 Programmes of legal education shall have regard to the social responsibilities of the lawyer, including cooperation in providing legal services to the poor and the promotion and defence of economic, social and cultural rights in the process of development.
3.08 Every person having the necessary integrity, good character and qualifications. In law shall be entitled to become a lawyer, and to continue in practice without discrimination for having been convicted of an offence for exercising his internationally recognized civil or political rights.
Education of the Public Concerning the Law
3.09 It shall be the responsibility of the lawyer to educate the members of the public about the principles of the rule of law, the importance of the independence of the judiciary and of the legal profession and to inform them about their rights and duties, and the relevant and available remedies.
Rights and Duties of Lawyers
3.10 The duties of a lawyer towards his client include: a) advising the client as to his legal rights and obligations; b) taking legal action to protect him and his interests; and, where required, c) representing him before courts, tribunals or administrative authorities.
3.11 The lawyer, in discharging his duties, shall at all times act freely, diligently and fearlessly in accordance with the wishes of his client and subject to the established rules, standards and ethics of his profession without any inhibition or pressure from the authorities or the public.
3.12 Every person and group of persons is entitled to call upon the assistance of a lawyer to defend his or its interests or cause within the law, and it is the duty of the lawyer to do so to the best of his ability. Consequently the lawyer is not to be identified by the authorities or the public with his client or his client's cause, however popular or unpopular it may be.
3.13 No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or represented any client or client's cause.
3.14 No court or administrative authority shall refuse to recognize the right of a lawyer to appear before it for his client.
3.15 It is the duty of a lawyer to show proper respect towards the judiciary. He shall have the right to raise an objection to the participation or continued participation of a judge in a particular case, or to the conduct of a trial or hearing.
3.16 If any proceedings are taken against a lawyer for failing to show proper respect towards a court, no sanction against him shall be imposed by a judge who participated in the proceedings which gave rise to the charge against the lawyer.
3.17 Save as provided in these principles, a lawyer shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings, or in his professional appearances before a court, tribunal or other legal or administrative authority.
3.18 The independence of lawyers, in dealing with persons deprived of their liberty; shall be guaranteed so as to ensure that they have free and fair legal assistance. Safeguards shall be built to avoid any possible suggestions of collusion, arrangement or dependence between the lawyer who acts for them and the authorities.
3.19 Lawyers shall have all such other facilities and privileges as are necessary to fulfill their professional responsibilities effectively, including: a) absolute confidentiality of the lawyer-client relationship: b) the right to travel end to consult with their clients freely, both within their own country and abroad; c) the right freely to seek, to receive and, subject to the rules of their profession, to impart information and ideas relating to their professional work; d) the right to accept or refuse a client or a brief.
3.20 Lawyers shall enjoy freedom of belief, expression, association and assembly; and in particular they shall have the right to: a) take part in public discussion of matters concerning the law and the administration of justice. b) join or forfreely local, national and international organizations c) prnpoe and recommend well-considered law reforms in the public interest and inform the public about such matters, and d) take full and active part in the political, social and cultural life of their country.
3.21 Rules and regulations governing the fees and remunerations of lawyers shall be designed to ensure that they earn a lair and adequate income, and legal services are made available to the public on reasonable terms.
Legal Services for the Poor
3.22 It is a necessary corollary of the concept of an independent bar, that its members shall make their services available to all sectors of society, so that no one may be denied justice, and shall promote the cause of justice by protecting the human rights, economic, social and cultural, as well as civil and political, of individuals and groups.
3.23 Governments shall be responsible for providing sufficient funding for legal service programmes for the poor.
3.24 lawyers engaged in legal service programmes and organizations, which are financed wholly or in part, from public funds, shall receive adequate remuneration and enjoy full guarantees of their professional independence in particular by:
- the direction of such programmes or organizations being entrusted to an independent board, composed mainly or entirely of members of the profession, with full control over its policies, budget and staff;
- recognition that, in serving the cause of justice, the lawyers primary duty is towards his client; whom he must advise and represent in conformity with his professional conscience and judgment.
The Bar Association
3.25 There shall be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join, in addition, other professional associations of lawyers and jurists.
3.26 In order to enjoy the right of audience before the courts, all lawyers shall be members of the appropriate Bar Association.
Function of the Bar Association
3.27 The functions of a Bar Association in ensuring the independence of the legal profession shall be inter alia:
(a) to promote and uphold the cause of justice, without fear or favour;
(b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession
(c) to defend the role of lawyers in society and preserve the independence of the profession;
(d) to protect and defend the dignity and independence of the judiciary;
(e) to promote the free and equal access of the public to the system of justice, including the provision of legal aid and advice;
(f) to promote the right of everyone to a fair and public hearing before a competent, independent and impartial tribunal, and in accordance with proper procedures in all matters;
(g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
(h) to promote a high standard of legal education as a prerequisite for entry into the profession;
(i) to ensure that there is free access to the profession for all persons having the requisite professional competence and good character, without discrimination of any kind, and to give assistance to new entrants into the profession;
(j) to promote the welfare of members of the profession and render assistance to a member of his family in appropriate cases;
(k) to affiliate with and participate in the activities of international organizations of lawyers.
3.28 Where a person involved in litigation wishes to engage a lawyer from another country to act with a local lawyer, the Bar Association shall cooperate in assisting the foreign lawyer to obtain the necessary right of audience.
3.29 To enable the Bar Association to fulfill its function of preserving the independence of lawyers, it shall be informed immediately of the reason and legal basis for the arrest or detention of any lawyer; and for the same purpose the association shall have prior notice for: t) any search of his person or property, ii) any seizure of documents in his possessions, and iii) any decision to take or calling into question the integrity of a lawyer. In such cases, the Bar Association shall be entitled to be represented by its president or nominee, to follow the proceedings, and in particular to ensure that- professional secrecy is safeguarded.
3.30 The Bar Association shall freely establish and enforce, in accordance with the law, a code of professional conduct of lawyers.
3.31 The Bar Association shall have exclusive competence to initiate and conduct disciplinary proceedings against lawyers on its own initiative or at the request of a litigant. Although no court or public authority shall itself take disciplinary proceedings against a lawyer, it may report a case to the Bar Association with a view to its initiating disciplinary proceedings.
3.32 Disciplinary proceedings shall be conducted in the first instance by a disciplinary committee established by the Bar Association.
3.33 An appeal shall lie from a decision of the disciplinary committee to an appropriate appellate body.
3.34 Disciplinary proceedings shall be conducted with full observance of the requirements of fair and proper procedure, in the light of the principles expressed in this declaration.
To appoint a committee to revise the standards on lawyers in the Montreal Declaration
The committee will submit a report in 3 months.
3) Global Judicial Ethics Code
In Ghent and in San Diego it was resolved, at the suggestion of Marcel Storme, to embark upon a project to develop a global judicial ethics code. It will be done in two parts. One part will deal with conduct on the bench and the other or the conduct off the bench, on the rules governing the conduct outside his official duties.
It is resolved to appoint a committee to prepare a draft for approval in Osnabruck Conference of the Association in October 2014.