Does the current approach to human rights mean we should change our mind about the value of every aspect of a lawyer’s work?
I have had a Big Thought surfacing for some months, and have found the opportunity this week to express it. It arises out of the resolutions which were discussed recently by the American Bar Association’s (ABA) House of Delegates. Although it seems to be a response to these specific resolutions, it is not. These resolutions merely reflect a trend which I have noted worldwide for some time, affecting several large bars or lawyers’ organisations.
The ABA’s House of Delegates meeting took place a few days ago. The House of Delegates is made up of 560 members representing state and local bar associations, ABA entities and ABA-affiliated organisations – in other words, as close to a representative body of the American legal profession as it is possible to get. Commendably, the results of the meeting, with full copies of the resolutions passed, are published immediately afterwards.
Interestingly, many of the successful resolutions had a distinctly human rights bias. There were, for instance, six criminal law recommendations. Five related to improving the human rights of defendants or victims: for instance, on the “gay panic” defence (where the victim’s sexual orientation or gender identity is blamed for the defendant’s violent action); or on youth in the juvenile justice system with mental health and substance abuse disorders. For the purpose of balance, I should say that a sixth gave approval to the ABA Criminal Justice Standards on Fair Trial and Public Discourse, which sets a model to follow in the relationship between trials and public comment.
In the field of international law, there was also an emphasis on human rights, for instance a resolution urging countries not to apply statutes of limitations with respect to genocide, crimes against humanity and serious war crimes. Finally, there were various other similarly oriented resolutions, such as ones supporting the rights of all Americans, particularly veterans, to access adequate mental health and substance use disorder services; urging governments to promote the human right to adequate housing; and approving the Uniform Prevention of and Remedies for the Human Trafficking Act.
Now comes my Big Thought. I note that more and more large bars or lawyers’ organisations are emphasising the human rights angle. The Human Rights Institute of the International Bar Association, and its high-profile human rights work, is a good example. My own organisation, the Council of Bars and Law Societies (CCBE), instituted a human rights prize for lawyers a few years ago. So this is not an occasion for singling out any one organisation. Rather I want to raise a serious point.
There are two sides to what appears to me to be this rather recent wave of support for human rights among the bars. On the one hand, it can only be good that lawyers showcase their frequent human rights work, which provides a public side to our profession not appreciated by many important decision-makers. In some countries, lawyers risk their lives, livelihoods and reputations to support the rule of law, and it is vital that we in the legal profession support them. Lawyers are uniquely positioned to help individuals or groups suffering serious injustice, in cases where they have no other route to a remedy. As a result, some bars go beyond the central issue of threats to lawyers – such as the immediate past president of the ABA, who had a Presidential initiative against human trafficking, and indeed, as mentioned, the recent House of Delegates meeting passed a resolution on this topic.
On the other hand, there are large parts of our work which, while undertaken within the general framework of the rule of law, would not usually qualify as human rights – such as company and commercial law, conveyancing, or tax – and we should neither ignore those very broad areas, undertaken by the vast majority of lawyers, nor should such work be given a lower value by the bars. There is an argument for saying that, although it is much safer and usually better remunerated, a lawyer’s work in effecting a successful company merger, or a secure property transaction, is as valuable within the framework of support for the public interest and the rule of law as a lawyer who undergoes public opprobrium or threat of attack (or worse) for representing a human rights victim.
I am of course perfectly aware that in attempting to improve our public image, the human rights angle is important. I am also full of admiration for the dedicated lawyers in the human rights field who risk so much to help individuals and groups in desperate need of help not otherwise available. But does that mean that we in our hearts should change our mind about the value of every aspect of a lawyer’s work?
Jonathan Goldsmith is secretary-general of the Council of Bars and Law Societies of Europe