Week 7: Function v. Creation - Perception of Attorneys in Chile
By Elizabeth Pietanza
In the U.S., the public generally views lawyers through a negative lens, even if some people value the role they play in defending our rights. Stereotypes and lack of understanding of the profession contribute to the negative impressions. For example, some people view class action lawyers negatively, if they are awarded millions in contingency fees while the actual victims receive less. Though many people do appreciate the defense of a “presumptively” guilty defendant because it ensures the fundamental right to a fair trial, others believe that defense lawyers are more focused on acquittal at all cost rather than ensuring due process. There is also a sense that in the U.S., the legal system favors the wealthy, with the classic example being the O.J. Simpson verdict. Clients also have negative impressions of lawyers who file motions or send letters to challenge every single aspect of a case or issue. These clients are left wondering whether their lawyers are doing all they can to win the case or all they can to bill the client.
On the surface, Chilean perspectives of lawyers mirror those found in the U.S., as they cite to examples of poor lawyering and indicate some general distrust. However, my impression is that the negative opinion appears to be more limited than as found in the US. Some reasons for this may include the less-frequent issue of large monetary and high-profile verdicts, as class actions are currently not permitted by law. Also, Chileans have not yet developed a strong perception either way of lawyers who defend “presumptively” guilty defendants. Prior to the recent Reforma Procesal, guarantees like the presumption of innocence and the right to remain silent were muddled by the judge’s multiple roles of investigator, prosecutor and judge. It is only due to recent measures that accused people are ensured due process rights and the presumption of innocence.
I find that the key difference with the perception of lawyers in Chile as compared to the US is that the role of Chilean lawyers and judges is largely confined to functionary duties. Comparatively, people in the US may view lawyers as either positively or negatively contributing to societal changes, with such examples as desegregation, right to privacy and gay marriage. In the common law system, a court decision on any community issue can become either binding or persuasive authority and can dramatically affect societal norms. However, as Chile is a civil law country, changes to the law can only originate through successful legislation, and not through the judicial system. If a controversial case is argued and decided in the Chilean courts, it means almost nothing to the general population. Judicial decisions only apply to the particular case and do not hold precedential value. Thus, because lawyers and judges do not get directly involved with changing the law and societal norms, they are largely seen as functionaries of the law, eliminating any dynamic social role.
These perceptions may begin to change in the future. Though still under a civil law system, Chilean criminal defense attorneys now have the right to challenge the government action that implicates basic due process, giving them a dimension of social power not known before. Depending on further public knowledge and appreciation of the Reforma Procesal, this power shift from the government to the individual could change the public perception of the role of law practice in society.
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