Week 3: Professional Responsibility in Chile
By Al Macina
Among anti-terrorism cases and post-work office soccer matches, a conversation with my supervising attorney Claudio Pavlic on Chilean professional responsibility stands out this week. There could not be a better person to speak to about the topic: he has taught the subject at the university many times. The subject matter deserves qualification however. He related how law programs in Chile mandate a legal philosophy class that concerns the ethical issues in law and society. He instead would like to institute a class of ethics as applied to an attorney’s everyday behavior that U.S. attorneys and law students would recognize as professional responsibility. He recognizes that society would be best served by efforts to force attorneys and would-be attorneys to examine the ethics of their own conduct. He has offered to conduct a professional ethics class to universities and the Colegio, the Chilean bar association, but to no avail.
So what body guides and disciplines Chilean attorneys’ behavior? El Código Penal, the criminal code of Chile, serves as the baseline for all attorneys. As to behavior that is not crime under law, Chilean attorneys receive what would best be called "guidance" by an ethical code. Apparently, the 1969 ethical code instituted by the Colegio bound attorneys from that time until a constitutional modification in the 70’s instituting "freedom of association." By interpretation this "freedom" prevents the Supreme Court or another body such as the Colegio from employing mandatory rules as to attorney behavior. At the risk of cultural insensitivity, I find applying such a principle bizarre, but I find good company in Mr. Pavlic, who was visibly frustrated at such a justification.
The code, at least in name, continues to reach attorneys as a condition of their membership in the Colegio. Its Consejo General oversees complaints against member attorneys. However, Mr. Pavlic estimates that less than half of Chilean attorneys are Colegio members. Pavlic finds the voluntary membership system problematic because lawyers have little incentive to join and in turn subject themselves to the ethical code. However, the Consejo’s power to sanction only goes as far as to expel members from the Colegio, which does not implicate one’s license to practice. Member attorneys apparently take some pride in membership by displaying their certificates in waiting rooms and offices. A successful complaint against them could result in social sanction, perhaps, as their name and expulsion can appear in the Colegio’s quarterly magazine, but in effect frees them from any overseeing body.
The saving grace, however anecdotal, resides in the low incidence of attorney misconduct, at least in the region in which my attorney sits as head public defender. Of 250 regional public defense attorneys, Pavlic can note three or four minor problems in the last four years, which makes for a fine percentage. Complaints have arisen because an attorney did not keep a client sufficiently informed of case status, for example. Thus as to my last question of the day, that of whether Pavlic believed Chilean attorneys have a general sense of professional responsibility despite the lack of direct enforcement mechanism, he answered in the affirmative. Possibly, however informal, norms applied to Colegio members may set the standard for Chilean attorneys as a whole, regardless of membership.
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