S. Attorney in XXI: Need a code of ethics of law in Venezuela for Nelson Dordelly-Rosales THE LAWYER IN THE S. XXI
The Lawyer in the XXI century. Article by Nelson Dordelly-Rosales "The lawyers are not rests on the insight of genius, but in the righteousness of conscience ..." This thought is the product of reflection during this school year (2004-2005) in the UCAB. Today we are in a lot of changes, which generate a real transformation of our society. The work of Attorney is not apart from these changes, however, at present the legal professional is forced to adapt to new demands and needs presented by the society.
In this context, Advocate XXI century requires more preparation and skills. But above all this new lawyer must is formed on the inner side, since the moral righteousness of attorney is an essential condition rescatar.Tradicionalmente the good lawyer must have been conceived as one that more lawsuits or legal disputes wins, or one who manages to avoid the outstanding disputes through negotiations. But when you enter law school, not conceived of as a handsome lawyer leguleyo that is enriched at the expense of remote devices in the codes and laws. Where your only mission is to get victories and money. Whenever there are more and more lawyers, but the justice system is getting worse, our laws and codes are being violated almost daily, yet we see thousands and thousands of students wishing to enter university to study for those Derecho.Pues we believe in natural law, "as a set of principles based on what are supposed to be permanent features of human nature, which may serve as a model to guide and assess the conduct and civil laws"
[1] argue the lawyer is that professional scientific skills to the defense of equity, the search achieve the common good and justice as supreme values \u200b\u200bof our legal system.
Overall, "the lawyer, professional life is summed up in one word, to be honest, you can live without talent, but can not live without honor. To be a good lawyer is not enough to believe endowed with natural skills required by our profession, even pursued by a relentless work: we must be especially sensitive soul, an upright heart, integrity above all suspicion, because it must be above all temptations. "
[2] " The Practice of the century will be the antithesis of shysters, that is, the expert on codes and standards aimed formal nature to perpetuate the litigation and complicate the dispute "
[3] it is the duty of us, the next generation of lawyers in this new century is to honor our profession, transformed into priests of justice, preaching the values \u200b\u200bof democracy, Justice, the Common Good and those principles that will guide us throughout our lives and our country so desperately needs. What are states without justice but bands of robbers on a larger scale? San AgustínCuando read the mind of St. Augustine, we immediately care about the reality of Venezuela and think about the morality and ethics, the need for a Code of Ethics of Advocacy for our / country. The history and current experiences of democratic countries like Spain, where they apply their own codes of conduct for different professions, approved many years, makes us think about what opportunities you have Venezuela.
Background: When we review the philosophical background on the subject (4), we go back to the eighteenth century, during which the British philosophers David Hume, Essays Moral and Political (1741-1742) and Adam Smith, author of economic theory of laissez-faire, in his Theory of Moral Sentiments (1759), made the same ethical standards so subjective. Identified the good with what that produces feelings of satisfaction and the bad with the resulting pain. According to Hume and Smith, the ideas of moral and public interest evoke feelings of sympathy between the people who tend towards each other even when they are united by ties of kinship or other direct links. A greater contribution to ethics was made in the late eighteenth century German philosopher Immanuel Kant in his Groundwork of the Metaphysics of Morals (1785). According to Kant, no matter how much intelligence the individual act, the results of human actions are subject to accidents and circumstances, therefore, the morality of an act need not be judged by its consequences but only for its ethical motivation. Only the good intention lies, as it is that makes a person BOUT, not from inclination, but from an obligation, which is based on a general principle which is good in itself. Ultimate moral principle, Kant again raised the average in a logical way: "Work as if the maxim of your action could be erected, by your will a universal law of nature." This rule is called the categorical imperative, because it is general and also contains a mandate. Kant insisted that one must treat others as if they were "in each case an end and never merely a means' Connection needed between law and morality. a) The union of primary rules (obligations) and secondary (recognition, however, award) may be justly considered as the essence of the law but not always appear together. Legal norms can be seen as distributing benefits and burdens among individuals: some benefits are tangible to help the poor. Others are intangibles such as personal injury protection accorded by the criminal law or the benefits granted by law governing the capacity to make, hire or vote. But do not confuse the distribution of compensation for damage caused by one person to another. The connection between what is fair and central precept of justice "treat similar cases in the same way and different cases differently is certainly less direct. But we must see that the law can be unfair but treat all equally. The absence of such rules would not, therefore, make a bad distribution, but all alike deny compensation for moral damage caused to other bans. Regardless of what the legal regulations, there is a moral conviction that persons under the legal system are entitled to have others refrain from certain types of harmful conduct, is the moral basis of all social groups. So when the rules of law agreed compensation in cases where justice demands it, they indirectly recognize the principle of "treating the cases in the same way" by having to restore the moral status in which the victim and the offender are in an equal footing.
The meaning of Moral and Legal Morality is unilateral, there is no individual right to demand the behavior under the moral rule. 2. The moral is imperative that not only imposes duties and powers. 3. Morality is internal because what value is the internal aspect of human action that is interested in moving human act. 4. The moral is intractable because morality does not impose penalties, which violates a moral norm is not punished, the moral law which imposes is a regret (sometimes more effective than the legal standard). 5. The moral is autonomous: the moral duties imposed on the individual, moral standards are received, the person is free to take the moral values \u200b\u200bthat seem more appropriate depending on your personality. (A) The right is bilateral because they always face him bound by the rule of law there is the individual right to demand the behavior accepted by the rule of law. (B) The right is mandatory legal norms are empire-affirmative because they impose duties and confer powers. (C) The right is external only cares about the external act of the human act, no matter the reasons he only cares that the person acted in accordance with the rule of law. (D) The right is coercible because whoever violates a rule of law is punished, the state is organized to impose the rule of law. (E) The law is heteronomous legal standard is imposed from outside, is applied by the state or by the competent authority, the rule of law but not the know has to fulfill the claim of the connection between Law and Morality refers to the sacrifice of interest personal interest of justice, in this sense, the observance of moral rules or guidelines is very important: The guidelines or criteria are observed against the momentum of strong passions that they limit and the cost of considerable sacrifice personal interest. The observance of the rule is important in the serious forms of social pressure not only to obtain compliance in individual cases but to ensure they are taught to all members of society. Recognition that significant changes occur and unwelcome in the lives of individuals, however the rules of manners of behavior would be less important and so there is no great presiòn.La connection between justice in the administration of law and the very notion of rule has tempted some famous thinkers to identify justice with "under the law." However, justice is not limited to the administration of the law but the laws are as fair and unfair criticism. Criteria of equality or inequality can vary depending on the fundamental moral approach a person or company. If a rule of law agreed to help the poor, the requirement of the "like cases should be treated the same way, regardless of taking into account the" needs "of the various candidates. There are principles of morality or justice describable by human reason and human rules or laws that contradict these principles are not valid law, must be a recognition of a moral obligation to obey the law, some moral conceived as expressions of human attitudes against to behaviors that may vary from society to society or individual to individual.
Justice is only a segment of the moral . It is possible that legal rules can agree with the moral rules. All participants also protecting people from harm and preserve the structure of an ordered society, tolerable.Pero there is some complexity in the idea of \u200b\u200bjustice: a) the principle "treat like cases in the same way" and changing criteria or variable used to determine when, for a given purpose, cases are similar or different, b) the procedural principle "audi alteram partem" or "no one should be judge in his own cause" (principles of natural justice). This is a guarantee of impartiality or objectivity, directed to ensure that the law is applied to all those and only those, which are equal in relevant areas identified by the law itself. The connection between this aspect of justice and the very notion of proceeding according to rules, is obviously very narrow. Regardless of what the legal regulations, there is a moral conviction that people are subject to the legal right to others to refrain from certain types of harmful conduct, is the moral basis of all social groups. So when the rules of law agreed compensation in cases where justice demands it, they indirectly recognize the principle of "treating the cases in the same way" to have to restore the moral status in which the victim and the offender are in a foot igualdad.El Equity concept and its relationship to justice and morality: that most of the criticisms made by the use of words "fair" and "unfair" might be expressed about the same using the terms "fair" and "unfair." Our interest is not about individual behavior in isolation but in classes of individuals (equitable distribution) and when it has caused some damage and the victims to seek compensation or damages. The latent principle is that individuals are entitled to each other at a certain position on unequal equality. This should be respected in social life when you have to distribute burdens and benefits, it is also something that should be restored when it has been altered. Thus it is that justice is traditionally conceived as maintaining or restoring a balance or proportion, and its main provision is made by saying: "Treat like cases in the same way, although it is necessary to add, according to Hart:" treat different cases differently. " Possibilities
Venezuela: In the absence of a code of principles or rules of law "Code of Conduct for Lawyers in Venezuela", the lawyers must be provided mind that the protection of freedom is the main objective of the law the same as embodied in the fundamental legal axiom that governs community life. This axiom states that any inter-human behavior is allowed, unless she is injured by foreign interest, is expressly prohibited by law or violate ethics or public order. You can not lose sight, therefore, the purpose of law is liberty. Forbidden and is punishable, therefore, the exception. The "project of life of counsel" as a moral person and final arbiter of legal protection: Freedom is the most precious gift of human beings in that it constitutes nothing less his own being, which therefore supports its psychosomatic unity. From Kierkegaard's thought can describe the human being to live up to our time as "a psychosomatic unity constituted and sustained in their freedom." Hence, the above mentioned requires lawyers, defenders of freedom, fundamental rights and heritage of the people, know, as far as possible, two issues prior to their professional activities.
First the XXI century Venezuelan lawyer must have a perception, as nearly as possible as to the ontological quality and structure of the entity that should be protected in the exercise of advocacy, which is none other than the individual. This will make your practice really takes, acquires meaning and is more efficient and attached to the reality of life. Secondly, the Venezuelan lawyer must have a clear conception as possible about what is the law. That is, must know what is the object of study of the discipline whose principles and rules applied in the practice of law. The answer in one of the findings that mark our time in the sense that the law is not, as was argued in the past, a one-dimensional discipline, whether it is considered that the object of his study is only the legal rules as claimed by legal formalism, or axiological dimension, as postulated by natural law school, or simply social life, as argued by the sociological and legal realism. Thirdly, there is no law without social life without values \u200b\u200bor without rules.
This three-dimensional design advocacy is very important when it comes to explaining the need an ethical code for Venezuela . The philosophy of law can overcome, in the second half of the decade of the forties of the twentieth century, fragmentary dimensional view of the legal discipline. This is thanks to the contribution of three-dimensional conception of law, that has not been viable without the support of existential philosophy which postulates, as is said, that the being of man is freedom. From this new vision is possible today hold that while the law arises primarily in the social life as a product of an intersubjective relationship of human behavior, they must be accounted for, then become rules of law. Thus, states that no law without social life without values \u200b\u200bor without rules. But, although none of these three elements is itself the object of study of law can not possibly be missing any of them when referring to the concept "right."
The purpose of the law arises, thus, the interaction - its dynamics - of social life, values \u200b\u200band norms. Such interaction may be because human beings are the only body which, being free, it is estimated, that is, who is endowed with the capacity to experience values. But at the same time, man, to raise these values, is also trained as a rational being, to formulate legal rules. The contemporary scene in which lawyers have to practice their profession or professional activity is displayed by the above, totally different from that in which the lawyers exercised their ministry in the nineteenth century and early twentieth century, when in which newly occur revolutionary findings to which we referred in the preceding pages. This new scenario is quite different in the two most radical and previous issues to be aware of any lawyer who is considered. First, and as mentioned is different in their conception of the ontological quality or structure of the human person, who ceases to be merely "a rational animal", as distinguished him in the past, to appear as an entity whose being is not the reason but freedom. This is what a spiritual being, capable of knowing and experience values. While belonging to nature, regarding mammal, man transcends this reality to become, simultaneously, as a spiritual being. In other words, while possessing the instincts of all mammal is completely conditioned by them as is able to manage and to sublimate. Second, the scenario in which contemporary law is developed is also different from that of other times in regard to the conception of the law. At present it is considered that the object of his study are not legal standards, as proclaimed formalism whose greatest representative was Hans Kelsen, since it can not be excluded or human life, from which emerges the law, or values \u200b\u200bthat constitute straight and firm criteria inspiration for the normative regulation of intersubjective human behavior.
The lawyer of today account, so expressed, with a scenario in which human beings have appreciated the regarded as "subjects of law," whether acting individually, before or after birth, or collectively through organizations of people who may or may not register in order to become, for to do so as "legal persons". Do not forget that man is the creator and star of Law and the recipient of assumptions jurídicas.Los standards of professional practice of attorney: The new conception of the person human and three-dimensional view of the law are the new assumptions that must be present for the full understanding of the legal institutions. In this scenario, the law - which is not reducible to a set of legal rules - sought, as has been noted, that each person can fulfill their "life plan" as being free, responsible for their own destiny, in harmony to the common good. To achieve this goal, the law should endeavor to ensure that interpersonal relationships are experienced legal values \u200b\u200bchaired by the justice, security and solidarity. To this end, a valuable regulate intersubjective behavior through law, which is a tool for the values \u200b\u200band social compliance which shall allow the continuous release of the human being in the public interest. The attorney must adjust their activities taking into account this new reality. You should understand that the ultimate purpose of law is the liberation of man. That is, achieved through the experience of the values \u200b\u200bthat are objectified in legal regulations, every person can realize his "life project " within the collective good. Hence, the values \u200b\u200band norms aimed, ultimately, the liberation of humans to promote the experience of the first and by the second, the elimination of obstacles to the achievement of the performance of the individual.
The layout Critical lawyering in the light of new cases of law: The implementation of this necessary review shows that the law is going through a transition period between two eras, which are displayed in a comprising a desired time before and after the revaluation of the person in the first half of the twentieth century, after the show as being free, which has a co-existential structure and, in turn, temporal.Siendo able to reflect on ethics, it is worth remembering that for some authors the reality is that the state has used its power far beyond the injustices but not avoiding justice by creating moral force. From the ethical point of view (and economic) any state action is undesirable. The laws of the legislature or the law does not comply with the ethics of natural law because it does not prevent injustice, but to interfere in the life of the person trying to make arbitrary justice. Only from the point of view of common sense the study of natural law is satisfactory.
Need for a Code of Conduct for Lawyers in Venezuela
As there Code of Practice Psychology, Forensic, Medical and Enferemerìa among other professions also and give more reason to have the ethical code of law. Europe since 1998 approved for all member countries of the European Code of Conduct, Spain in 2000 adopted its Còdigo.Es from the second half of the twentieth century, from the time that States strongly enshrined human dignity as a supreme value reporting entire legal system when the lawyer's role reaches its final significance, providing the individual and the society in which it integrates technology and expertise to legal advice and defense of their rights but they are useless if not provides the ideal means to defend those that correspond to each one. In a corporation organized and activated on the basis of law, which states as fundamental values \u200b\u200bof equality and justice, the lawyer and legal expert familiar with legal technicalities and procedural strategies, it stands as an essential element for the realization of Justice, ensuring the information or advice, contradiction, equal parts in both the process and outside it, playing the right defense, which is an essential requirement of effective judicial protection. Thus today the Advocate states, more than ever, behavioral rules that satisfy the inalienable rights of the client, but also respecting the protection and consolidation of values above in which society rests and humana.Recientemente own condition, there have been many legislative reforms and also many political and social changes that have affected the practice of the lawyer in Venezuela. Undoubtedly, a code of ethics of law in Venezuela and it is essential that the social function of Lawyers requires establishing ethical standards for its exercise. The "Advocacy has been refiner values \u200b\u200bsaved by ethical standards required not only the right of defense, but also for the protection of the highest interests of the state, proclaimed social and democratic rule of law. Like any standard, the ethical is inserted into the universe of law, governed by the principle of hierarchy and also requires clarity, adequacy and accuracy, so that any change in law or fact in the situation, necessary to adapt the rule to the new reality legal or social. "In this sense, the firm need to provide the Bar Venezuelan more effective instruments to address the XXI century now requires the compilation and updating of the ethical rules that should govern our profession in a single text updated. And this without giving up the principles that have characterized the performance of the Advocate centuries. The Conseil Consultatif des Européens Barreaux (CCBE), the highest representative body of the Bar to the European Union institutions in the plenary session held in Lyon on November 28, 1998, adopted the European Code of Conduct, which aims to establish performance standards for professional lawyer in the border and other basic accounting safeguards required minimal to allow the right to an effective defense. Also, the General Council of English Lawyers, assuming the full European Code of Conduct sets minimum performance standards of any lawyer in the territory of the English state to ensure the proper performance of their essential role in all of English society. "Just as not conceived a double, triple or multiple ethics within the European Union, nor in Spain would make sense that the performance of the Advocate was substantially different in each of the Autonomous Communities."
Within this context, the proposal In this framework is to analyze fully the norms of the European Code, English and identify similarities with Venezuela, in order to achieve the common denominator in the legal profession and add or amend those consistent with the Venezuelan reality. To do this, it is necessary the joint work Federation of Bar Associations of Venezuela, active and determined participation of all Bar Associations in the country and reach a consensus which is our code of ethics for exercise of the legal profession in Venezuela. In this regard, the Supreme Court of Venezuela should direct their efforts towards the drafting of rules of ethics for the profession EXERCISES Venezuelan lawyer, aware that the public interest requires uniform rules defining any lawyer in the country, but with full respect for the powers to the Bar who are responsible for ordering the practice in the territorial areas they choose. Venezuelan legislation therefore must have the vocation to be basic, corresponding, development and adaptation, and ultimately determine the balance of the interests at stake in their respective territories, the Bar Associations. In that legislation should be regulated and other traditional performances rejuvenated the most modern and accepted the remaining first in the light of comparative law and recent but enriching experience. They must also survive as fundamental principles in the exercise of the legal profession's independence, dignity, integrity, service, professional secrecy and freedom of defense. "The lawyer's independence is as necessary as the impartiality of the judge, within the rule of law. The lawyer informed his client of his legal position of the different values \u200b\u200bare at stake in any of their actions or omissions, providing the technical defense of their rights and freedoms in relation to other actors, whose rights and dignity have must also be taken into account: This uniquely action as complex as the Advocate only serves the citizen and the state's own system of law if it is free of pressure, if the lawyer has the freedom and independence to learn, make judgments, and defend information no other easements that the ideal of justice. In no case should act coerced nor complacency. "
"The honesty, probity, rectitude, loyalty, diligence and accuracy " are virtues that should adorn any action of the lawyer. They are the cause of the necessary relationships of trust attorney-client and the base of honor and dignity of the profession. A lawyer must always act honestly and diligently, with competence, customer loyalty, respect for the opposing party, keeping secret how much cognizance by reason of their profession. And if any lawyer do not do so, their individual performance affects the honor and dignity of all profesión.Como know, the Constitution guarantees everyone the right not to incriminate himself, and the right to privacy. Both seek to preserve freedom and intimate personal and family life of citizens increasingly vulnerable to state power and other powers are not always well defined. The detailed city attorney to know the scope, the significance of their actions and to do so, must confess their most intimate circumstances. The lawyer then becomes the custodian of the personal privacy of its customers and their inalienable right not to incriminate oneself. Professional secrecy and confidentiality are both rights and duties of the Advocate that are no realization of the fundamental rights that the law recognizes its own customers and the defense as an essential mechanism of the State of law. "Anything that will be revealed by his client, with all its circumstances, most everything that will be served by another lawyer in confidence, you must keep it secret."
Corresponding to the fundamental principles of the legal profession regulates the bases of the incompatibilities and personal publicity. A lawyer can not put at risk their freedom and independence, his loyalty to the client or professional privilege and therefore avoid professions or develop functions that directly or indirectly create any kind will physical or psychic pressure that could jeopardize its independence or disclosure of any secret information that could only harm the interests of clients but also seriously affect the confidence of citizens in the right defense, and by extension the entire system garantías.Debe have rules on advertising ethics staff lawyer, only as it affects professional ethics. Advertising respect the principles of dignity, loyalty, trustworthiness and discretion, in any event preserving the secrecy and the independence of lawyers. The role of agreement which requires the lawyer's obligations with respect to the arrangement between the parties means that the information is not biased or litigio.La invite conflict or independence of the Advocate is intimately linked with the principle of freedom of choice. The lawyer is free to assume the leadership of a subject and a citizen it is also to entrust his interests to a lawyer of his choice and cease entirely free professional relationship at the time that it sees fit. This absolute freedom, could jeopardize the right to defend itself if among the professional services of a lawyer and his replacement is a gap in legal aid efectiva.Por thus the oldest institution of "permission" should preserve communication necessary substitute for entrusting it replaced but a responsible action information, which was already happening in practice. This allows ensure that citizens will be defenseless from the performance of the substitute and the substitute, providing for a single moment when one's responsibilities will stop and start the other, and, moreover, an important benefit information provided to substitute the Advocate defensa.El subject interests must always bear in mind the high office that society trusts, which is nothing less than the effective defense of individual rights and collective recognition and respect which is the backbone of the rule of law. Therefore can only handle a matter when trained to advise and defend him in a real and effective, and it forces you to constantly adapt and improve their legal knowledge, and seek assistance from more experienced colleagues, when you need it. For the first time, it undertakes to regulate the possession of client funds. The multidisciplinary collective exercise of the legal profession, along with the techniques now offer financial institutions, holding regular advised fund clients, keeping them identified themselves separated from the firm, and always available, which contribute to the transparency in the activities of the Advocate, strengthening customer confidence. Few variations
experience the ethical rules governing the obligations and relations with the Bar Counsel, with the courts, with colleagues or customers. Only, go further in safeguarding the fundamental values \u200b\u200bthat inform professional practice in the attorney-client relationship. And so are specified reporting requirements, increase precautions to avoid conflict of interest and responsibility to protect the independence of lawyers, establishing mechanisms to clearly identify the beginning and end of their performance and therefore their responsibility, and all insisting on recognition of their freedom to discontinue the defense does not wish to continue in it, which guarantees complete freedom of decision permanently independence and which corresponds to the one with the city to appoint a lawyer of their choice at any time. The system of free choice of lawyer and acceptance of defense, experience failure in the defense of legal aid, which would be avoided as well as citizens entitled to her attorney could choose among those registered in the lists of turn for legal aid, it will be possible if, as is desirable, the defense is ensured in any case, by a legal aid system more in line with social reality, which enables the citizen, the beneficiary of legal aid, free choice of lawyer and him a fitting reward for their work.
Until they establish the rules governing the Legal Aid, they determine the free assignment of counsel and self-acceptance of the defense. Updating the concept of "contingency fee", which was never considered by the Bar included in the fee. The "contingency fee" as an association and involvement with the customer in the outcome of litigation, putting at risk the independence and freedom of attorney ceases to be a champion to become your customer's partner in pursuit of a material result, the that in addition to tampering with the defense function, causes homelessness or discrimination against citizens who have limited rights to claim property or entity whose guardianship is difficult. Moral rules do not impose restrictions on free and fair competition, but that stand in fundamental duties of all lawyers in the exercise of its social function in a state of law, which requires competition perform their duties in good faith, freedom and independence , customer loyalty, respect for the opposing party and keeping secret as seised by virtue of its conduct profesional.Corresponderá, where appropriate, to adapt Schools universal ethical standards to the specificities of their respective regions, disseminating knowledge and monitored for compliance and disciplinary correcting the lack of enforcement to ensure the smooth implementation of the high mission that our society has entrusted to the lawyer, a task we perform a real public service, for which the State has provided us with regulatory and disciplinary powers also public. BIBLIOGRAPHY
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14. LAWS AND REGULATIONS:
Attorneys Law Code of Civil Procedure of Venezuela.
The rules of the Social Welfare Institute of the Advocate.
Code of Professional Ethics of the Venezuelan Attorney-
"Commandments of the Lawyer" San Ivo and San Alfonso Maria de Liborio .-
"The Decalogue" Lawyer "Angel Osorio
El Alma de la Robe by Angel Osorio Valletta Editions 2003.
"The Commandments of Attorney" by Eduardo J. Couture.
"The Decalogue" by Honorio Silgueira .- "Tables" Rui Barboza.
minimum fee regulation. Footnotes
Page
(1) "The Moral of the Lawyer and the Legal Profession" Tomas Liscano, Publications of the Presidency of Venezuela. Caracas 1973 .
(2) "Rules of the Future" Hildegard Rondón de Sansó, press articles published by the newspaper El Universal in the Year 1983 "
(3) The Rules of the Future" Hildegard Rondón de Sansó, newspaper articles published the newspaper El Universal in 1984 Encarta Encyclopedia 2004.
