Friday, 19 July 2013

Independence of Lawyers from a Mathematical Perspective

Today's tutorial topic in the course of PRC Legal System is about the current status of legal education and the legal profession in the PRC. At the end of the presentation, Prof asked the presenting team a question, "what is the meaning of independence of lawyers, and why do you think independence of lawyers is necessary?". One of the team answered that it is because the independence of lawyers can help avoid conflict of interests, for example, the conflict of interest b/w the state and the lawyer's client. However, it seemed that Prof was not quite satisfied w/ the answer. He was of the opinion that lawyers' independence is not a prerequisite to achieve the best practice. He said "the independence of lawyers is not part of law or constitutionalism"

I agree w/ the prof from the perspective that if the State's interest is in the same line with its citizens' interest, then lawyers are not necessarily required to exercise their duties independently from the state. In such context, lawyers will be forced to do their jobs for the best interesting of their clients, even though they are obliged to serve the interest of the State at the same time.

But when we think this point in a mathematically way. We will find the fundamental flaw in this argument. First, it will be hard to sum up what is the interest of a state. The state government is divided into different divisions in different levels, and every single level of division is implementing the policy made by the central government in varying ways. Moreover, all governors and civil servants are simply humans who have their own interests. All these interests are interweaving with the so-call state interests. So, what is exactly state interest? Maybe no one can answer. It is also clear that people have competing interest against each other under the complicated social system. Hence, there are possibilities of conflict of interest b/w people who are governing the state and some people who are governed. Under such a situation, suppose lawyers are strictly regulated by local government, and a citizen are just suing a governor of the government, will the lawyer , who are representing the citizen as his client, take into consideration of the influences of the case on his own? If so, it may become unfair to his client as the lawyer may not try his best to fight for the best interest for this client. Keep in mind that we are talking about probability, which means if a lawyer, who is 90% percent independent from all other parties, are only required to exercise his duty in accordance with the law; And, all other factors will affect the result are 100%  perfect. Then, the court system will decision 90% of all the cases fairly. Which means, if there are 10000 cases involves citizens suing other people who have a direct or indirect relationship with the government, 9000 of them will get a fair judgment. However, if a lawyer is required to serve the best interest of the party and the government, and will be liability if they does not choose so, then the independence of lawyer will be lowered, let's make a assumption as example, to 70%. Then, 3000 of 10000 cases will not get fair results.

Although the above computation is too naive and simplified, it at least represents that there is a positive correlation b/w the independence of lawyers and the good running of our justice system. Furthermore, there may be reasons to protest against democracy as it is a more abstract idea and defects in several ways. But I really don't see any rational to protest against the independence of lawyers. If one way is less risk in causing unfairness, why shall we choose another way?

1 comment:


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