Transcript HUMAN RIGHTS 101: Focus on HIV/AIDS-Law

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
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.
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
“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)
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.
Overall Comparison: Human Rights
Principles vs. Rules of Professional Conduct
Human Rights Principles
Rules of Professional
Conduct
• Aspirational
• Phrased Positively (i.e.
communicate with
honesty)
• Apply to all staff at legal
aid, not just the licensed
attorneys
• Baseline for attorney
conduct
• Phrased negatively (i.e. do
not make a false statement
of material fact)
• Apply to attorneys only
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.
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”
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.”
Human Dignity Cont’d
• Honest Communication Cont’d
• Keep the client reasonably informed about the status of the
matter. See Tx. Rule 1.03(a); Fl. Rule 4-1.4.
• “A lawyer shall explain a matter to the extent
reasonably necessary 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.
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.
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.
Human Rights Reference: Participation & SelfDetermination
 Arts. 19, 21, 27, 29
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 41.4.
• 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].
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.
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.
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 48.4(d).
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]ll lawyers 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.
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.
Human Rights Reference: Solidarity
 U.N. Independent expert on human rights and
international solidarity
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.
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.
Innovation Cont’d
• Pursue creative remedies towards shared goals
• Rules recognize that lawyers perform various roles, including
advisor, advocate, negotiator and evaluator. See Tx. 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.
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
Human Rights in Staff – Client Relationships
Human Rights in Staff-Client Relationships
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

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)