Presentation Transcript

1. Human Rights Principles for Legal Aid: At the Intersection of the Rules of Professional Conduct, Legal Ethics and Human Rights

   Lauren E. Bartlett, Project Director
2. What are human rights? Human Rights = universal legal guarantees *protect individuals and groups *protect fundamental freedoms and human dignity. Human rights are: legally protected; obligate states and state actors; cannot be waived or taken away; interdependent and interrelated; universal.
3. Sampling of Human Rights Right to Non-Discrimination Right to Self-Determination Freedom from Torture Right to Privacy Right to Special Protections for Women and Girl Children Right to Adequate Standard of Living Right to Healthcare Right to Social Services
4. “If You Wanna Make The World A Better Place…Take A Look At Yourself, And Then Make A Change” Michael Jackson, Man in the Mirror, on Bad (1987)
5. Human Rights Principles for Legal Aid 1. Human Dignity Treat all people with respect, not as a gesture of charity but as an act of justice. Respect the inherent worth of each individual, each family and their communities. Be patient, kind, and on time. Listen with empathy. Communicate with understanding and honesty. Keep private information private. 2. Participation and Self-Determination Meaningfully involve clients in identifying problems, goals, planning and case strategy. Empower clients to tell their own story and advocate for themselves. Clearly and simply explain the law and process, clients’ rights, the role of Legal Aid, and the role of the client 3. Equality  Respect all others as your equal. Recognize strength in diversity. Take responsibility for discrimination based on your own beliefs, including but not limited to discrimination based on mental health, sexual orientation, homelessness, education level, age, political opinion, culture, source of income, and place of origin. Work to end all discriminatory acts in your office, as well as in your community. 4. Solidarity Foster teamwork among clients and staff. Constantly challenge the traditional power structure of the client-staff relationship. Recognize your strengths and your client’s strengths and invest those strengths in shared responsibilities. Stand with your clients and fellow staff members to fight poverty and expand rights for the most vulnerable. 5. Innovation Pursue creative remedies towards shared goals. Litigation is only one option among many. Ask what more you can do to counsel, educate, and advocate for your clients and their communities. Encourage your client to use other tools including community education, organizing, legislation and civic participation. Consider using international and regional mechanisms such as special rapporteurs, United Nations treaty-body monitoring committees and the Inter-American Commission on Human Rights.
6. Overall Comparison: Human Rights Principles vs. Rules of Professional Conduct
7. 1. Human Dignity Treat all people with respect, not as a gesture of charity but as an act of justice. Respect the inherent worth of each individual, each family and their communities. Be patient, kind, and on time. Listen with empathy. Communicate with understanding and honesty. Keep private information private.
8. Human Dignity: Human Rights Reference Universal Declaration of Human Rights, Preamble “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”
9. Human Dignity Cont’d Respect Respect for colleagues, opposing counsel, third parties, your officemates etc. Neither the Maryland Rules, Texas Rules, nor the Florida specifically mention respect for clients. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. Fl. Rule 4-1.3 Diligence . Except in the context of clients with disabilities. Md. Rule 1.14; Tx. Rule 1.03 [5]., Fl. Rule 4.1.14. Honest communication Trustworthy, understanding, truthful, honest, candid advice “A client is entitled to straightforward advice expressing the lawyer’s honest assessment.” Tx Rule 2.01; Md. Rule 2.1. ; Fl. Rule 4-2.1. Fl. Rule 4-2.1 goes above and beyond: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.”
10. Human Dignity Cont’d Honest Communication Cont’d Keep the client reasonably informed about the status of the matter. SeeTx. Rule 1.03(a); Fl. Rule 4-1.4. “A lawyer shall explain a matter to the extent reasonablynecessary to permit the client to make informed decisions regarding the representation.” Tx. Rule 1.03(b); Fl. Rule 4-1.4(b). Sometimes lawyers are justified in delaying the transmission of information to clients. Md. Rule 1.4[7]; Fl. Rule 4-1.4. “[L]awyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client” and “A lawyer may not, however, withhold information to serve the lawyer’s own interest or convenience.” Fl. Rule 4-1.4.
11. Human Dignity Cont’d Keep private information private Client privacy or attorney-client privilege is addressed in great detail by the Tx., Md., and Fl. Rules. E.g. Tx. Rule 1.05; Md. Rule 1.6.; Fl. Rule 4-1.6. However, the statement about privacy in the Human Rights Principles is even more broad. Applies to the attorney-client relationship, but also to privacy between supervisors and among staff members.
12. 2. Participation and Self-Determination Meaningfully involve clients in identifying problems, goals, planning and case strategy. Empower clients to tell their own story and advocate for themselves. Clearly and simply explain the law and process, clients’ rights, the role of Legal Aid, and the role of the client.
13. Human Rights Reference: Participation & Self-Determination Arts. 19, 21, 27, 29
14. Participation and Self-Determination Cont’d Empower your clients Be Humble. How can you empower your clients to do as much on their own as possible? What if there is a next time and you are not there? What if your clients are better advocates for themselves than you are? Do not think of yourself as the gatekeeper, or as “[l]awyers, as guardians of the law…” Tx. Rules Preamble [1] “The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Fl. Rule 4-1.4. Put clients at the center of advocacy decisions and strategy “[A] lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail.”Fl. Rule 4-1.4; Tx. Rule 1.03[2]; Md. Rule 1.4[5].
15. 3. Equality Respect all others as your equal. Recognize strength in diversity. Take responsibility for discrimination based on your own beliefs, including but not limited to discrimination based on mental health, sexual orientation, homelessness, education level, age, political opinion, culture, source of income, and place of origin. Work to end all discriminatory acts in your office, as well as in your community.
16. Human Rights Reference: Equality Art. 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
17. Equality Cont’d Respect diversity “[A] commitment to equal justice under the law lies at the very heart of the legal system.” Md. Rule 8.4[4]. “A lawyer shall not: (d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic” Fl. Rule 4-8.4(d).
18. Equality Cont’d Act to end discriminatory acts The rules mentions taking action in respect to poverty, but nowhere else: “[L]awyer should be mindful of…the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.” Tx. Rules Preamble [5]; Md. Rules Preamble [6]; Fl. Rules Preamble. “[A]lllawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” Fl. Rules Preamble.
19. 4. Solidarity Foster teamwork among clients and staff. Constantly challenge the traditional power structure of the client-staff relationship. Recognize your strengths and your client’s strengths and invest those strengths in shared responsibilities. Stand with your clients and fellow staff members to fight poverty and expand rights for the most vulnerable.
20. Human Rights Reference: Solidarity U.N. Independent expert on human rights and international solidarity
21. Solidarity Cont’d Teamwork Between clients and staff, staff and staff, supervisors and staff Recognize strengths of clients Some clients are fantastic public speakers, others are great at being persistent with phone calls - put those strengths to work. Challenge traditional power structures “As a public citizen, a lawyer should seek improvement of the law, the administration of justice” Tx. Rules Preamble [5]; Md. Rules Preamble [6], Fl. Rules Preamble.
22. 5. Innovation Pursue creative remedies towards shared goals. Litigation is only one option among many. Ask what more you can do to counsel, educate, and advocate for your clients and their communities. Encourage your client to use other tools including community education, organizing, legislation and civic participation. Consider using international and regional mechanisms such as special rapporteurs, United Nations treaty-body monitoring committees and the Inter-American Commission on Human Rights.
23. Innovation Cont’d Pursue creative remedies towards shared goals Rules recognize that lawyers perform various roles, including advisor, advocate, negotiator and evaluator. SeeTx. Rules Preamble [1]; Md. Rules Preamble [2]; Fld. Rules Preamble. Also, “[a]s a public citizen, a lawyer should seek improvement of the law, the administration of justice…” Tx. Rules Preamble [5]; Md. Rules Preamble [6]; Fl. Rules Preamble. This likely requires innovative strategies. Zealous advocacy is mentioned in the rules. See e.g., Tx. Rules Preamble [2]-[3], Md. Rules Preamble; Fl. Rules Preamble. Yet, the Fl. rules specifically do not require lawyer to press for every advantage for clients. See Fl. Rule 4-1.3.
24. MDLAB Approach to Integrating Human Rights in Staff - Client Relationships Layering human rights into every interaction with clients to strive at every turn to uphold their dignity Important to walk the walk as well as talking the talk The MDLAB approach Developed original training Trained all-staff Using feedback from training to develop Guiding Principles Using Guiding Principles to reform process of Intake
25. Human Rights in Staff – Client Relationships
26. Human Rights in Staff-Client Relationships
27. Human Rights in Staff-Client Relationships Proposed Language for MD LAB Principles Article 1 UDHR: Equality and Dignity Our work is an act of justice. We respect all others as our equals We will keep private information private We will strive to be patient, kind and on time Article 2 UDHR: Non-Discrimination We respect the inherent worth of each individual We will not discriminate on the basis of including but not limited to the following: race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, mental health, sexual orientation, homelessness, education level, age, culture or source of income
28. Why Human Rights? Human Needs & Human Rights What do people need to live in dignity? What are the core challenges facing our clients? Talk in rights terms instead of charity/“helping” Embody aspirations of all people Gets beyond the law to justice Offers more complete analysis, including issues of justice, fairness and accountability Sustainable change Greater legal clarity More authoritative basis for policy Greater accountability Creates more connections Supports learning a common language; joining a global movement (adopted in part from Discover Human Rights: A Human Rights Approach to Social Justice)