🚀 go-pugleaf

On 30 Jan 2001 14:34:15 +0800, Jeremy Malcolm
<Jeremy@Malcolm.wattle.id.au> wrote:

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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.
>
>- -- 
>Independent consulting solicitor* | _ .__ ._ _    |\/| _.| _ _ |._ _
>and technology consultant.**    \_|(/_|(/_| | |\/ |  |(_||(_(_)|| | |
>Personal site: http://malcolm.wattle.id.au     /   Finger for GPG key
>* http://www.ilaw.com.au ** http://www.terminus.net.au jm@ilaw.com.au
>
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As Chair of EFA, I confirm that Jeremy Malcolm has resigned from the
EFA Board effective 30th January, 2001. As Jeremy has stated, his
resignation follows discussions concerning Jeremy taking on legal work
apparently inconsistent with EFA's charter to promote online freedom
of expression - in the most recent instance accepting instructions
from the Church of Scientology to send a letter of demand for the
removal of a website critical of the CofS.

The Board wishes to make it clear that lawyers with unpopular clients
are not barred from participation in EFA and the Board does not assume
that lawyers' own views are those of their clients. On the contrary
EFA supports, by campaigns and legal action where necessary, online
freedom of expression by any person or group including in instances
where EFA does not agree with the views expressed.

However, EFA firmly opposes any person or group seeking to silence
online freedom of expression, and any Board member employed to do so
may well find that EFA is aiding his or her opponent.

The Board considers that most members of the general public are
capable of understanding the separation of a lawyer's or employee's
personal views from those of his or her clients or employers.
Nevertheless, when an EFA Board member is engaged in activities
directed for example to silencing freedom of expression, a resulting
perception of divided loyalties can be damaging to the reputation of
EFA and may dissuade people from seeking EFA help in a legal conflict.
Operational issues also arise, for example, in ensuring that email to
EFA from persons requesting assistance does not end up in the hands of
an individual acting for the sender's opponent. Hence recent events,
in EFA's sixth year of existence, have raised the need for the Board
to establish policies and procedures addressing such matters.

As foreshadowed in my post "EFA response to COS threat" of the 3rd of
December (in aus.org.efa, aus.censorship, alt.religion.scientology),
the EFA Board has carefully considered the matter and resolved to
require all Board members, of whatever employment, to recognise,
declare and address potential conflicts of commitment. This is an
operational requirement of any organisation, and is not aimed at
lawyers in particular.

Conflicts between personal and organisational values arise from time
to time, and without debating the merits of those values, it is
necessary for an organisation to have a procedure for dealing with
these situations.

The EFA Board is drafting a comprehensive Code of Conduct for its
Board members and staff designed to ensure that EFA's operational
objectives and the public's trust in EFA as an ally against censorship
are not diminished by conflicts of commitment.

The Code under draft would require an EFA Board member placed in a
position of conflict of commitment to declare it and if necessary
stand down from the Board until such conflict ended, and provides for
dismissal from the Board on a resolution of the Board in cases not
otherwise resolvable. A final draft of the Code will be put to the
vote of a special general meeting of EFA members in due course.

On behalf of the Board,
Kimberley Heitman,
Chair, Electronic Frontiers Australia