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Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.70

The Good Lawyer

Professor Adrian Evans, The Good Lawyer, 2014, Cambridge University Press, pb $50

For many readers of fiction the quintessential good lawyer is Atticus Finch seen through the eyes of his young daughter Scout in Harper Lee’s timeless Pulitzer Prize winning classic To Kill a Mockingbird.

In the mid 1930s Finch defends a black man falsely accused of rape in America’s deep south.

I was reminded of Atticus Finch – a small town lawyer with high moral principles – when I read Adrian Evans’ latest addition to Australian legal ethics literature The Good Lawyer. Finch would have easily passed the tests of what makes a good lawyer set out in Evans’ well researched and thoughtful book.

A law professor at Monash University, Evans has been studying, researching and teaching ethics to law students for more than three decades. He has brought his many years of research, learning and experience to the fore in this small but useful publication.

Writing for an audience of senior secondary school students, tertiary law students and new lawyers, Evans has focused his discussions around the whole lawyer, a person who is not only a lawyer but a decent and moral human being.

What makes a good lawyer? Is there a place for good lawyers in the legal profession? What role does morality play in creating a good lawyer?

Evans sets out his aim: “This book aims to make you a better person and, I hope, a better lawyer. ‘Better’ does not mean clever or more highly skilled – although that is necessary and should go without saying: it means more socially and morally responsible. That is, a ‘good lawyer’”.

Richly mining academic research and real case studies (both from overseas and within Australia) over the past 30 years, Evans draws conclusions which suggest that not all lawyers have been or are driven by ethical and moral considerations in their daily practice of the law. In some cases, law firm business imperatives have driven outcomes rather than ethics or morality.

Evans analyses four critical ethical areas through different philosophical eyes – truth and deception, professional secrets, conflicts of loyalty and interest, and the morality of professional competence. Evans explains the choices faced by lawyers in each area. Responding to those choices may or may not result in a moral outcome. Many case studies are cited with an abundance of tables, flowcharts, and diagrams to assist in understanding the text.

The book concludes with a chapter on practical wisdom for lawyers with clear encouragement for lawyers to be “better”, citing the ideal law office workplace as one which is “primarily an exciting, compassionate and justice-focused workplace, where your character development, judgment and resilience are prioritised and ethical awareness is valued as a business strategy”.

This book should find a wide audience among those who are contemplating studying for a law degree or are already on the way to doing so. awyers should read it as well.

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Michael Dolan Acting Manager, LIV Ethics Department

Mistrial

Mark Geragos and Pat Harris, Mistrial, 2013, Gotham Books, pb $20

This book, written by two Californian criminal defence lawyers, provides an opportunity to compare different systems. The authors are highly critical of prosecution strategies, including the reliance on confessions (which are apparently not required to be audio-taped in the US). Chapter 9 is headed “The Best System in the World” but the title is followed by three question marks. It seems clear that we should be grateful that we have a different system.

Significantly, we have a system in which judges are appointed by the executive. More than half of the 50 states in the US use a system of popular election of judges. This has many disadvantages. It encourages judges to impose harsh penalties, especially when re-election looms, on the basis that a reputation for being tough on crime will be popular with the electorate. (For the same reason, a background as a prosecutor will help the applicant to succeed in an election.) Election campaigns require funds and local lawyers might prove to be enthusiastic donors, thus compromising the elected judge. It is not surprising then, that the authors offer as the number one (out of 10) suggestion for improving the system that judges should be appointed rather than elected.

The authors provide entertaining glimpses of some notable cases, such as that of OJ Simpson. This leads to another aspect in which the US system of peremptory challenges (called preemptory in this book) is open to criticism. Defence counsel can cross-examine prospective jurors endlessly in an attempt to obtain jurors who will be sympathetic to the defendant. I was present in 1994 in the early stages of the Simpson empanelment (a process that ended up taking three months). The process made it easy to get a predominantly black jury ready to believe in LAPD corruption. American lawyers were astonished when I told them that in Australia a jury empanelment usually takes just a couple of hours. In my view, our system makes it more apt to achieve a random cross-section of the community.


Graham Fricke retired County Court Judge

Collins on Defamation

Matthew Collins, Collins on Defamation, 2014, Oxford University Press, hb $435.95

This is a textbook on English defamation law by a member of the Victorian Bar. The text focuses on the Defamation Act 2013 (UK) but contains extensive material on defamation law in other countries, especially Australia and Canada. There is also substantial analysis of the application of defamation law to the internet. The appendixes include legislation, civil procedure rules, tables of damages and precedents.

The Defamation Act 2013 is the result of a private member’s bill introduced by Lord Lester of Herne Hill in 2010. It constitutes the most wide-ranging set of reforms ever made to the law of defamation in England and Wales and tilts the balance towards protecting freedom of expression.

According to Collins, the 2013 legislation makes a number of significant reforms. First, only a statement that has caused or is likely to cause serious harm to the claimant’s reputation is defamatory. Second, for claimants not domiciled in the EU, the court only has jurisdiction if it is clearly the most appropriate forum. Third, secondary publishers cannot be sued unless it is not reasonably practicable to sue the primary author, editor or publisher. Fourth, a website operator has a defence if it can show that it was not the operator who posted the statement on the website (provided the poster can be identified). Fifth, a single publication rule has been introduced, so that multiple publications of substantially the same statement are taken to be published on the date of first publication for the purpose of the statutory limitation period. Sixth, the common law defence of truth and the Reynolds defence are abolished and statutory defences of substantial truth and publication in the public interest are created. Seventh , a defence of honest opinion is available if the statement was of an opinion the basis of which was indicated and which an honest person could have held on the basis of any existing facts or privileged statement.

With the commencement of this legislation, defamation law in England and Wales is now very different from Australian law. Collins advocates a Reynolds defence for publications in the public interest and a single publication rule so the statutory limitation period is effective. However any changes to the uniform Australian defamation legislation in the short term seems unlikely.

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Andrew Westcott Special Counsel, HWL Ebsworth Lawyers

Resolving Disputes in the Asia-Pacific Region

Shahla F. Ali, Resolving Disputes in the Asia-Pacific Region – International arbitration and mediation in East Asia and the West, 2012, Routledge, pb $26

This book provides insight into the attitudes, perceptions and practices of participants in commercial arbitrations in East Asia, compared with participants of arbitrations in the West.

The book is divided into two parts. The first part considers the cultural and legal history behind the growth of arbitration and other dispute resolution practices in East Asia. The second part of the book provides an in-depth analysis of the empirical research undertaken by the author on attitudes, perceptions and practices of participants of arbitral proceedings, including arbitrators, judges, lawyers, clients and members of various arbitral institutions, such as the China International Economic and Trade Arbitration Commission. The empirical research presented is a combination of surveys and interviews, as well as examination of individual cases and statistical data obtained from arbitral institutions. In the final chapter, the author examines the issue of reconciling global harmonisation and cultural diversity in international commercial arbitration in East Asia.

Although highlighting a number of similarities, the author identifies some key differences between East Asian countries and western countries in the way arbitrations are viewed and the manner in which they are approached and conducted. For example, the author highlights the fact that there is generally greater acceptance and frequency of arbitrators promoting and participating in mediations during arbitral proceedings in East Asian countries, such as in China, as opposed to arbitrations conducted in Europe and the US.

Importantly, the empirical research presented by the author was conducted in 2006-2007, although some material up to 2010 has been considered. Statistics pertaining to arbitral proceedings conducted in China for the period 1963 to 1996 have also been examined. It would be interesting to consider and compare the author’s work with more recent empirical data in order to determine whether sentiments and practices in East Asia and the West have changed since the author’s research.

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David Kim Barrister

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