Lawyers’ and judges’ ethical-professional values and their variabilityand their variability

3.10.4.1. The scope of the axiological basis of legal and judicial ethics Here, the set of specific ethical-professional values expressed in codes of legal and judicial ethics should be described.¹⁴⁰ As follows from the content

139 Marek Kuryłowicz, “Notariat w europejskiej kulturze prawnej,”in II Kongres Notariuszy Rzeczpospolitej Polskej. Referaty i opracowania, ed. Romuald Sztyk (Poznań–Kluczbork, Wydawnictwa Notariatu, 1999), p. 148.

140 In codes of legal ethics, axiological principles usually are expressed in the ‘language of principles’. However, as a result of current findings it has been accepted that a principle is always

analysis of these codes,¹⁴¹ legal professions (and related professions such as the civil service) have a  relatively consistent basic axiology, comprising at least public trust in the profession,¹⁴² prestige, dignity of the profession, carefulness, self-improvement, independence, selflessness, respect for the dignity of others, respect for superiors and law corporation authorities, professional confidentiality, collegiality, good manners, and conscientiousness in financial matters. It perhaps needs to be verified, but the above list comprises a universal axiological basis for public trust professions,¹⁴³ and also concerns doctors, physiotherapists, and others.

The original and common trait of legal sets of ethical-professional values is, in my opinion, propounding to the foreground a respect for the rule of law, which makes a direct connection with the above outlined axiological basis of law. In other words, it is (at least) the rule of law that cements the common

founded in a specific value, thus in the following discussion we speak about ethical-professional values.

141 Zbiór Zasad Etyki Adwokackiej i Godności Zawodu (Kodeks Etyki Adwokackiej) [The Rules of Ethics for Advocates and the Dignity of the Profession (Code of Ethics for Advocates)], annex to the resolution of The Polish Bar Council No. 32/2005 of 19th November 2005 as amended by resolutions of The Polish Bar Council No. 33/2011 – 54/2011 of 19th November 2011; Kodeks Etyki Radcy Prawnego [The Code of Ethics of Legal Counsel], annex to the resolution No. 3/2014 of the Extraordinary National Convention of Legal Advisers of 22nd November 2014; Kodeks Etyki Zawodowej Notariusza [The Code of Ethics for Notaries], annex to the resolution No. 19 of the National Notary Council of 12th December 1997, as amended; Zbiór Zasad Etyki Zawodowej Prokuratorów [The Set of Principles of Professional Conduct for Prosecutors], annex to the resolution No. 468/2012 of 19th September 2012; Zbiór Zasad Etyki Zawodowej Sędziów [The Set of Principles of Professional Conduct for Judges], annex to the resolution No. 16/2003 of The National Council of the Judiciary of Poland of 19th February 2003, as amended; Kodeks Etyki Zawodowej Komornika Sądowego [The Code of Ethics for Court Enforcement Officers], annex to the resolution of the National Council of Judicial Officers No. 909/IV of 8th February 2012; The European Code of Good Administrative Behaviour passed by The European Parliament on 6 September 2001; Regulation No. 70 of the Prime Minister of 6th October 2011 W sprawie wytycznych w zakresie przestrzegania zasad służby cywilnej oraz w sprawie zasad etyki korpusu służby cywilnej [On guidelines in the scope of observing principles of the civil service and on principles of ethics of the civil service corps]; American Bar Association Model Rules of Professional Conduct (1983), as amended;

American Bar Association Model Code of Judicial Conduct (1990), as amended.

142 It is to be considered whether public trust makes a constitutional value in the light of Polish Law;

however, it certainly belongs to the group of fundamental legal values. Mutatis mutandis this would be indicated by the wording of art. 17. par. 1 of the Constitution, which states: “By means of a statute, self-governments may be created within a profession in which the public repose confidence, and such self-governments shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest.” The Constitution of the Republic of Poland of 2ndApril 1997, Journal of Laws of 1997, No. 78, item 483, as amended.

143 It should be noted that public trust as a value belongs to the axiological principles also of those legal professions whose representatives though not being representatives of public trust professions in a strict sense, are state officials (judges, prosecutors, bailiffs, members of civil corps). Cf. Tomasz Stawecki, entry: “Zaufanie,” in Leksykon etyki prawniczej: 100 podstawowych pojęć, eds. Paweł Skuczyński, Sebastian Sykuna (Warszawa: Wydawnictwo C.H. Beck, 2013), p. 442.

universum of legal and ethical-professional values, both on the macro scale of all legal professions, as well as on micro scale of a lawyer or a judge as an individual displaying concrete ethical-professional beliefs.

3.10.4.1. Axiological diversification in the public and private law However, one has to draw attention to the internal variability of the universum, which is manifested in the differentiation and specification of the ethical-professional sets of values of a lawyer, judge, prosecutor and so on.

K. Pałecki indicates that, in addition, the “axiological basis of law may occur in different versions in different communities serving various functions within the same system of law.”¹⁴⁴ An essential premise of this variability is the reference of a particular legal profession to the axiology of the spheres of public law or private law. In this context, Z. Ziembiński’s opinion should be cited, that the typology of values which law “must serve” defines on one hand the value of law as a means of fulfilling or securing that which is beneficial for particular individuals, and on the other hand the value of law as a  means of attaining that which is in the interests of society as a  whole.¹⁴⁵ By this, Ziembiński highlights the potential internal conflict of an axiology of law, since in practice its realisation may result in a dilemma related to the domination of either the public or a particular interest.¹⁴⁶ In the light of the above argument, the lawyer’s or judge’s axiological dilemmas therefore stem from, inter alia, tensions between sets of values that are typical for the two defined spheres. It is obvious that the axiological conditioning of public law is strongest in judicial, prosecutorial and civil service ethics, while the conditioning of private law prevails in the ethics of the bar and even more so in the legal adviser’s.

The above conclusion is confirmed by analysis of the legal provisions of sets of rules of professional ethics, as well as of the constitutional acts of the professions cited. The private law perspective manifests itself, for example, in the Code of Ethics for Advocates, which declares such values as: protecting a client’s interests, freedom and independence, truthfulness,¹⁴⁷ freedom of expression, restraint and tact in dealings with a court, offices and institutions, dignity of people engaged in the case, kindness, courage and honour in defence of one’s clients, particular scrupulosity in financial matters in relation to the client, trust in relations with the client, respect for the bar council authorities, respect

144 Pałecki, “Zmiany w aksjologicznych,” p. 22.

145 Wronkowska, ed., Z teorii i filozofii prawa Zygmunta Ziembińskiego, p. 247.

146 Ibidem. It is a reference to Ulpian’s legal maxim: “Publicum ius est quod ad statum rei Romanae spectat, ius privatum est quod ad singulorum utilitatem.”

147 In accordance with par. 11 The Set of Professional Conduct and Professional Dignity Principles of Advocates a lawyer must not give false information to court knowingly.

of the internal law of the corporation, cooperation with the bar authorities, and the traditions associated with practising the profession.¹⁴⁸ As indicated, loyalty to the client and other values already mentioned are central also to The  Code  of Ethics of Legal Advisers. In the proposed view, specific, ethical-professional public law values come to prominence in judicial, prosecutorial and civil service ethics. For example, the set of specific values of judicial ethics includes impartiality, the interests of the court the judge works in, the interests of the judiciary, and the constitutional position of the power of the judiciary.

The original regulations of the ethical-professional values set of Polish notaries derive from the nature of activities on the cusp of the spheres of public law and private law.¹⁴⁹ The particularity of the Polish bailiff’s professional ethics derives from operation on the border of these two spheres.¹⁵⁰

Thus, a lawyer’s or judge’s axiological dilemmas essentially result from the complexity of the universum of their professionally significant values and the individual’s gravitation towards the sphere of public law or private law. Hence, the result of the division thus outlined is a dilemma concerning public interest and private interest, the interest of the client and law abidingness, professional confidentiality and public security, and so on. Moreover, axiological diversification of legal professions linked to the sphere of public law generates further dilemmas, for example between independence and impartiality (values of judicial ethics) and hieratic, organisational subjection (sometimes called

“loyalty to supervisors”¹⁵¹). These axiological discrepancies are so fundamental that I. Lazari-Pawłowska writes about the “socially accepted mutual conflict of social roles of the legal professions” of a prosecutor, judge and lawyer, each of whom plays a specific role in the legal-procedural public sphere.

148 This value is expressed in the preamble to The Rules of Ethics for Advocates and the Dignity of the Profession (Code of Ethics for Advocates).

149 This observation is confirmed by the wording of par. 10 and 16 The Code of Ethics for Notaries.

Par. 10 states that “a notary as a person of public trust endowed by the state with certain functions to exercise public authority law enforcement functions, should in their conduct use best efforts to maintain balance between the public character of their actions and the freelance status [of the office].”

In accordance with par. 16 “a notary ensuring law enforcement in line with the will and intention of parties is at the same time obliged to maintain loyalty to the state.” The Code of Ethics for Notaries, annex to resolution No. 19 of The National Notary Council of 12th December 1997, as amended.

150 Cf. Marcin Pieniążek, “Teoria etyki komorniczej wobec założeń współczesnej etyki działalności gospodarczej,” in Etyka zawodowa komornika sądowego, ed. Andrzej Marciniak (Sopot: Currenda, 2016), pp. 145–161.

151 Cf. par. 16 item 3 of the Regulation No. 70 of the Prime Minister of 6th October 2011. W sprawie wytycznych w zakresie przestrzegania zasad służby cywilnej oraz w sprawie zasad etyki korpusu służby cywilnej, Polish Monitor of 2011, No. 93, item 953.

3.10.4.3. The lawyer and profit

Another essential factor conditioning the axiological dilemmas of lawyers, due to their assignment to public law or private law, is their relation to the basic value of economic activity ethics, namely gain (enrichment).¹⁵² Here I assume this value belongs neither to the fundamental legal values nor the ethical-professional values of a  lawyer, and that it simultaneously takes a prominent place in their axiological universum. It is conspicuous that gain is a strong value (in Hartmann’s terms), tending to subjugate other values also typical of legal ethics. Analysis of corporate sets of values carried out in this respect leads to the conclusion that the ethics of professions related to the sphere of public law clearly resist the desire to enrich judges,¹⁵³ prosecutors,¹⁵⁴ and civil servants.¹⁵⁵ Also, the Polish code of ethics for advocates, although included above in the sphere of private law due to the advocate’s traditional role as defender of human rights, has significant links with ethics for court professions.¹⁵⁶ A  manifestation of the understanding of the advocate’s role as a  participant in the “justice system” is, among other things, the ban on

152 Cf. Adam Smith, Wealth of Nations (New York: Cosimo Classics, 2007).

153 § 17 section 1. “The judge must avoid personal contact and any other business relations with other entities if they give rise to doubts as to the impartial performance of duties by the judge or jeopardise the prestigious status and undermine confidence in the office of judge..” § 18 section 2.

“The judge should not perform any financial activities that could give an impression that he takes advantage of his position as a judge.” § 19 “The judge must not accept any benefits that could give an impression that they are an attempt to exert influence on him. The judge should also ensure that the members of his family should not accept such benefits.” See Resolution 16/2003 of The National Council of the Judiciary of Poland of 19th February 2003. On the Collection of Principles of Judges’

Professional Ethics.

154 § 18 section 1. “The prosecutor must avoid personal contact and any other property relations which could interfere with the office.” §19. “The prosecutor must not accept or show that they are interested in accepting any benefits if their granting or the promise of their granting could give an appearance that they are an attempt to exert influence on them in relation to the office they hold.”

§ 21 section 2. “The prosecutor must resign from additional employment, occupation or livelihood if it evinces itself that their continuation would interfere with performing professional duties.” See The Code of Professional Ethics for Prosecutors, annex to resolution No. 468/2012 of 19th September 2012.

155 § 4. “Pursuant to the principle of impartiality, a member of the civil service corps particularly must not: 1) accept any benefits from the parties involved in the cases he or she conducts; 2) accept any form of retribution for public appearances if they are related to his or her office; 3) continue additional employment or livelihood if further performance of this work may affect the cases conducted within his professional duties; 4) carry out trainings if this could affect impartiality in the cases conducted.” See Regulation No. 70 of the Prime Minister of 6th October 2011. W sprawie wytycznych w zakresie przestrzegania zasad służby cywilnej oraz w sprawie zasad etyki korpusu służby cywilnej, [On guidelines in the scope of observing principles of civil service and on principles of ethics of the civil service corps] The Polish Monitor of 2011, No. 93, item 953.

156 Czesław Jaworski, “Etyka adwokatów,” in Etyka prawnicza. Etyka nauczyciela zawodu prawniczego (Warszawa: Wydawnictwa Uniwersytetu Warszawskiego, 2002), pp. 39–40.

advertising expressed in the abovementioned code of conduct, which indicates the marginal place of gain in the set of corporate values.¹⁵⁷ Nevertheless, the influence of the axiological paradigm of business ethics is the strongest on the legal advisor, which is a legal profession closely linked with the free market. The expression of the influence of business ethics on a young Polish legal adviser’s ethics are, i.a., the frequent changes of codes of conduct, which signifies the search for the corporation’s identity in the context of dynamic transformations of the market economy.¹⁵⁸ The bailiff’s ethics, located in Polish law on the border between public and legal law, are also subject to the influence of values typical of the ethics of economic activity.¹⁵⁹