🚀 go-pugleaf

Jeremy Malcolm <Jeremy@Malcolm.wattle.id.au> wrote in message
news:3a766067@news.wa.apana.org.au...
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> I have tendered my resignation from the Board of Directors of
> Electronic Frontiers Australia (EFA) this afternoon.  Since late last
> year the Board has moved towards a consensus that it ought not to
> sanction any of its members to put forward a public face of
> commitment to interests contrary to those of EFA.  For example, it
> would be apparently hypocritical of a Board member to engage in
> lobbying for the imposition of restrictions on the private use of
> cryptographic technology, whilst holding office on the Board of EFA
> which has a contrary policy position.
>
> This principle, currently under development by the Board into a Code
> of Conduct, is a timely and sensible one which I support.  What I do
> not support is the notion that a lawyer who acts for *clients* who
> have interests contrary to those of EFA is to be tarred with the same
> brush as those clients.  It is fundamental to our system of justice
> that a lawyer is independent of the interests of his or her clients.
> Were it otherwise, a lawyer who acted for a socially undesirable
> litigant would in turn be socially stigmatised, with the end result
> that no lawyer would be willing to act for such a client.
>
> It is for this reason that ethical principles have been developed
> within the legal profession which exhort a lawyer to accept
> instructions from any member of the public who calls upon the
> services of that lawyer, and to carry out those instructions
> unstintingly, without heed of the lawyer's own interests or
> assessment of the public interest.  It is fundamental that a lawyer's
> first duty is to the court, and his or her second duty to the client.
>  For a lawyer to refuse to act for a client who wishes to exercise
> its legal rights in a socially sanctionable manner is unethical.
>
> This does not mean that a lawyer cannot be an activist in support of
> public causes.  Far from it.  For example, I have been an active
> public supporter of on-line civil liberties for several years, the
> most recent of which have been in my capacity as Board member of EFA.
>  My support of the rights of freedom of expression and privacy on the
> Internet have extended to my provision of pro bono legal advice to
> those whose civil liberties are threatened by unwarranted
> governmental or private intervention in on-line fora.
>
> But the private capacity in which I hold these views is distinct from
> the professional capacity in which I act for my clients.  If the
> interests of my clients are in conflict with my personal values, then
> the client's interests prevail - automatically, and without
> exception.  It is difficult for many non-lawyers to understand how
> this can be so, and I am the first to agree that legal professional
> ethics and "everyday" ethics certainly do not coincide in this area.
> In essence however, the explanation is that it is not the duty of a
> lawyer to dispense substantive justice.  That is the sole
> responsibility of courts of law.  As a lawyer my only concern is to
> pursue procedural justice - by ensuring that my client's interests
> are put forward to the best of my ability, in a forum which provides
> my client's adversary with the same opportunity.
>
> As readers will have gathered, I am a lawyer whose practice
> specialises in technology, communications and Internet law.  As such,
> I have a number of clients whose interests may be, at some time or
> another and to a lesser extent or greater, in conflict with the
> interests that EFA espouses.  For example, software developers who
> desire to protect their handiwork to the full extent that the law
> permits (including patent, copyright and trade secret protection), an
> application service provider whose remote monitoring software has
> been alleged to be in breach of privacy principles, and a religious
> organisation which desires to protect its artistic and literary works
> by the rigorous enforcement of its intellectual property rights.
>
> It may be that, were they not my clients, my personal values would be
> better promoted if these persons and organisations were not so
> rigorous in the protection or enforcement of their legal rights, or
> were not so well assisted in doing so by a legal professional.  It is
> to their credit, however, that they recognise my personal views as
> being entirely irrelevant to the extent of my professional duties to
> them, and as having no bearing whatsoever on the way in which I
> promote their interests so long as I do so within the confines of the
> law and my primary duty to the court.
>
> Whilst not, as I understand it, disputing the correctness of this
> analysis per se, certain individuals within EFA are of the view that
> the public at large might not be as cognizant of the separation
> between my personal values that I choose to promote in my own time,
> and the values of my clients that I am legally obliged to promote
> when acting for them.  It is their opinion that an apparent "conflict
> of commitment" exists, not only between the values and interests of
> my clients on the one hand and EFA on the other, but between my
> *professional* commitment to the interests of my clients, and my
> *personal* commitment to the interests of EFA.
>
> In my view, the apparent conflict is illusory, and can be corrected
> through education rather than by surrendering to the misapprehensions
> of those unfamiliar with the basic procedural tenets of the
> Australian legal system.  To so surrender would require me to refuse
> to act for any clients who do not measure up to EFA's high standards,
> thereby rendering myself no longer an independent and disinterested
> advocate, but rather a "politician for hire".  Until I change
> professions, this course of action would be entirely unprincipled and
> wrong.
>
> Although I am unable to fulfil my legal and ethical duties without
> putting forward on behalf of my clients positions that may be
> contrary to the policy of EFA, that is not why I have resigned: I can
> hardly envisage that *any* lawyer in private practice could serve on
> the Board of EFA (or on the board of any similar organisation)
> without the same situation arising.  In my view it is beneficial for
> EFA to have lawyers on its Board, and to the extent that their
> professional obligations cause concern or confusion amongst the
> general public (which is a perception that the Board seems to have
> formed), this can be corrected through public relations management
> and education of the public as to the nature of legal professional
> duties.
>
> It is fair to say however that the above is only my private opinion,
> and that there are those who believe that no amount of education will
> fully address this issue.  If EFA's good public relations were indeed
> compromised by the presence of lawyers on its Board, the management
> of this situation would be a distraction from EFA's core purpose.
> Accordingly I have resigned in order to save the Board from devoting
> resources to an education programme that would be better directed
> towards the protection of on-line civil liberties in Australia, a
> cause which I will continue to support privately and as an member at
> large of EFA.
>
> - --


I am sure that most people would have been re-assured by your merely
standing down as a member of EFA whilst being employed by a group notorious
for attempting to stifle attempts at free speech Jeremy. But this is merely
my own opinion, which may be rebuffed by those who are a little more
vehement in their opinions on scientology.

I can understand where you are coming from, where you believe you can
seperate yourself into two seperate entities, one working to reduce
censorship while the other may be forced to impose legal restrictions apon
those who believe they are being censored. Mayhaps it would be akin to
playing a game of chess against oneself, pretending not to know the strategy
of your opponent, or an extreme case of a lawyer requested to defend the man
who shot the lawyers parents. I don't claim to know how another man thinks,
or would behave in certain circumstances. It would be nice to believe in the
inherent honesty of every man, and not to have doubts as to wether he could
choose the right path at the right time.

At the this time though, you have to agree, with the electoral rorts, the
broken promises by politicians and supression of information to the public,
the everymans impression of politicains, their ethics, and the legal system
in Australia is not a bright and shiny one.

These are merely my own impressions, I am not trying to make any statements
as to anyones suitability to a profession, nor any particular persons
honesty or lack thereof.


DavidR