Abstract
The nature of his work makes the drafter subjected to special duties towards his principal (the government or the legislators themselves), to parliament and to society. But the demands that derive from the respect for his profession are not always compatible with the demands of government, legislators, parliament and society. This chapter suggests some criteria for the resolution of conflicts arising from rivalling loyalties to which the drafter may be exposed. Among the duties which should be included in a code of conduct for legal drafters are the duty of professional competence, the duty to assist and advise the legislators who commission a draft norm (not to substitute them), the duty of loyalty to the institutional system and the duty of confidentiality. Legal drafting is a task with obvious political components, and the drafter therefore cannot avoid reflecting on his responsibility as a professional and as a citizen, as a member of society.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Electoral programs have the virtue, not so much of advancing the specific policies that the government will carry out as of “showing the set of problems, the type of diagnosis that is made about them, and a pool of solutions or lines of action to undertake” without going into detail (Subirats 1992, p. 90).
- 2.
For Luhmann (1981, p. 66), as noted in Chap. 6, law is a self-referential system: it “produces and reproduces by itself the elements of which it is constituted (…). A self-referential system can thus conduct operations only by means of self-contact; that is, in tune with other operations of its own (…). Every decision refers to other decisions and each of the decisions can express its own sense only through such an internal reference, as a contribution to the attainment or impairment of other decisions, as the rings of a chain”. Law is thus conceived as a system that is continually self-reproduced: norms are daughters of other norms.
- 3.
- 4.
“All this leads us to nuance the role of parties in the production of public policies. Their role is crucial in the phase of determining the elites of government and a certain capacity of control over the activity of the different governments (...). However, in the most substantive field, in the field of determining the policies that will be pursued by public authorities in specific areas of intervention, their protagonism is greatly reduced, to the benefit of other actors” (Subirats 1992, pp. 96–97).
- 5.
Approved by the Plenary of the General Council of Spanish Lawyers on 30 June 2000.
- 6.
Further development of these rules can be found in the California Rules of Professional Conduct of 1 June 2007, in the Colorado Rules of Professional Conduct adopted by the Colorado Supreme Court on 12 April 2007 (effective from 1 January 2008), or in the Tennessee Rules of Professional Conduct.
- 7.
- 8.
Roger Purdy (1987) made one of the most important contributions to this field, providing us with useful insights.
- 9.
See Art. 13 of the Dentological Code of Spanish Lawyers.
- 10.
See Rule 3-110 of the California Rules of Professional Conduct.
- 11.
In this connection, we can mention e.g., the legislative drafting handbooks issued in Australia (Office of Parliamentary Counsel of New South Wales and Queensland), Hong Kong (Department of Justice, Law Drafting Division), the UK (Parliament of Scotland) or India (Imachal Pradesh, Law Department, Legislative Wing); or in the U.S.: in Alaska (Legislative Affairs Office), Arizona (Legislative Council), Connecticut (Legislative Commissioner’s Office) Hawai (Legislative Reference Bureau), Illinois (Legislative Reference Bureau), Indiana (Legislative Council), Maine (State Legislature, Office of the Reviser of Statutes), Massachusetts (Counsel to the Senate), Minnesota (Office of the Reviser of Statutes), North Dakota (Legislative Council), South Dakota (Legislative Research Council), Texas (Legislative Council), Utah (Legislature), or Washington (Statute Law Committee, Office of the Code Reviser); or the International Labour Organization’s Labour Legislation Guidelines (chapters X and XI). There are also norm drafting manuals for use by governments, e.g., in Germany (Bundesministerium der Justiz 2008), Australia (Victoria, Department of Premier and Cabinet, Office of the Chief Parliamentary Counsel), in the U.S. (National Archives and Records Administration, Office of the Federal Register) as well as in the states of Alaska (Department of Law), Connecticut (Legislative Commissioner’s Office), Indiana (Legislative Council), Minnesota (Office of the Revisor of Statutes) and Ohio (Legislative Service Commission). For the UK, see the OPC’s Drafting Guidance, available at: http://www.cabinetoffice.gov.uk/media/427772/drafting-guidance-101002.pdf.
- 12.
As stated in Art. 2 of the Deontological Code of Spanish Lawyers: “1) The independence of the lawyer is a requirement of the rule of law principle and of the citizens’ right to legal defence, so for the lawyer it constitutes a right and a duty. 2) In order to be able to adequately advise and defend the legitimate interests of his clients, the lawyer has the right and the duty to preserve his independence against all kinds of interference and against his own or other people’s interests. 3) The lawyer must preserve his independence from the pressures, demands or complacency that limit it, be it with respect to public, economic or factual powers, to the courts, to his client or even to his own colleagues or collaborators. 4) Independence allows him to reject instructions that, contrary to his professional criteria, are intended to be imposed on him by his client, his partners, the other professionals with whom he collaborates or any other person, entity or current of opinion; the lawyer must cease to advise or defend the matter in question when he considers that he cannot act with total independence. And 5) his independence disallows the lawyer from exercising other professions or activities that limit him or that are incompatible with the practice of law (ejercicio de la abogacía), as well as from professionally associating or collaborating with persons or other professionals who exercise such activities (…)”.
- 13.
See Rule 1.13 (Organization as Client) of the ABA Model Rules of Professional Conduct, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/. See also Rule 3-600 of the Colorado Rules of Professional Conduct, as well as Rule 1.13 of the California Rules of Professional Conduct.
- 14.
In this sense, Roger Purdy (1987, pp. 77 and 78) proposes a second rule of conduct: “Rule: The drafter’s primary duty is to the legislative process, and the legislature as a whole. In carrying out this duty, the drafter will work temporarily for one or more legislators on individual projects, but ultimately must act in the interest of the legislature, overall, rather than individuals. Usually these duties will not conflict, and the drafter will normally assist the legislator in achieving his or her goals. Where a reasonable argument supports the action requested by a legislator, the drafter should seek to inform the legislator fully of relevant considerations, but ultimately accept the legislator’s wishes. Where a legislator, however, intends to act, acts, or seeks to have the drafter act in a way that is clearly violative of the rules of the legislature, in violation of law, substantially deceptive to the legislature, or substantially subverts or is prejudicial to the legislative process, the drafter should take reasonable steps to protect the interests of the legislature and legislative process pursuant to Proposed Drafting Rule 3.2”.
- 15.
The Spanish Lawyers’ Deontological Code establishes in its Art. 4: “The relationship between the client and his lawyer is based on trust”. Art. 5 regulates professional secrecy: “Trust and confidentiality in the relations between client and lawyer, is based on the right of the former to his integrity and to not to declare against himself, as well as on fundamental rights of third parties, and imposes on the lawyer the duty and confers on him the right to keep secret all the facts or news he knows by reason of any of the modalities of his professional service (...). 2. The lawyer’s duty and right to professional secrecy includes the client’s confidences and proposals, those of the adversary, those of his colleagues and all the facts and documents of which he has become aware or has received by reason of any of the modalities of his professional service”.
- 16.
In the deontological rules of the legal profession there is only the provision (art. 5.8) that in exceptional cases the lawyer may consult the Dean of the Bar. Much more explicit is the American regulation in this regard: see Rule 1.6 (Confidentiality of Information) of the ABA Model Rules of Professional Conduct, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/.
- 17.
In Roger Purdy’s (1987) proposal, drafters may also request permission from their supervisors to decline or withdraw from an assignment when “a) the drafter feels he or she cannot adequately perform his or her duties because of intense personal feeling regarding the bill, o b) a conflict of interest or potential conflict of interest makes the drafter’s completion of the assignment difficult or would create the appearance of impropriety, or c) other good cause exists” (Rule 5.b).
- 18.
See e.g., State of Colorado’s Office of Legislative Legal Services (2004).
References
American Bar Association (2004) ABA model rules of professional conduct (updated in 2018). ABA, Chicago
Brown DG, Cartin DL (1996) The attorney–client relationship and legislative lawyers: the state legislature as organizational client. J Am Soc Legis Clerks Secretaries 2(1):57–64
Bundesministerium der Justiz (2008) Handbuch der Rechtsförmlichkeit, 3rd edn. Bundesministerium der Justiz und für Verbraucherschutz, Berlin. Published in the Bundesanzeiger 60, no. 160a, 22 September 2008. http://hdr.bmj.de/
Burton IF, Drewry G (1970) Public legislation: a survey of the session 1966/1969. Parliament Aff 23:154–183
Burton IF, Drewry G (1981) Legislation and public policy: public bills in the 1970–74 parliament. Macmillan, London
Clark K (1999) The ethics of representing elected representatives. Law Contemp Probl 61(2):31–45
Cramton RC (1991) The lawyer as whistleblower: confidentiality and the government lawyer. Geo J Legal Ethics 5:291–315
Donahoe KW (1989) The model rules and the government lawyer. A sword or shiel? A response to the DC Bar Special Committee on Government Lawyer and the Model Rules of Professional Conduct. Geo J Legal Ethics 2:897–1002
Drewry G (1981) Legislation. In: Walkand SA, Ryle M (eds) The commons today. Fontana, London
Drieger EA (1953) The preparation of legislation. Can Bar Rev 31:33–51
Edwards C III, Wood BD (1999) Who influences whom? The president, congress and the media. Am Pol Sci Rev 93:327–344
Griffith JA, Ryle M (1989) Parliament. Functions, practice and procedure. Sweet and Maxwell, London
Josephson W, Pearce R (1986) To whom does the government owe the duty of loyalty when clients are in conflict? How Law J 29:539–569
La Spina A (1989) La decisione legislativa. Lineamenti di una teoria. Giuffrè, Milano
Lindblom CE (1991) El proceso de elaboración de políticas públicas. MAP, Madrid
Luhmann N (1981) Teoria politica nello Stato del Benessere. Franco Agnelli, Milano
Macnair D (2004) Ethics and drafting. Ottawa, Department of Justice
Marcello DA (1996) The ethics and politics of legislative drafting. Tul Law Rev 70:2437–2462
Meny I, Thoenig J-C (1992) Las políticas públicas. Ariel, Barcelona
Office of Legislative Legal Services (State of Colorado) (2004) Guidelines for working with lobbysts. Revised version (updated in October 2008). Colorado General Assembly, Denver
Pennell JN (1994) Representations involving fiduciary entities: who is the client? Fordham Law Rev 62:1320–1356
Purdy R (1987) Professional responsibility for legislative drafters: suggested guidelines and discussion of ethics and role problems. Seton Hall Legis J 11(1):67–120
Subirats J (1992) Un problema de estilo. La formación de las políticas públicas en España. Centro de Estudios Constitucionales, Madrid
Weinstein JB (1966) Some ethical and political problems of a government attorney. Melbourne Law Rev 18:155–172
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Zapatero Gómez, V. (2019). The Drafter’s Deontology. In: The Art of Legislating. Legisprudence Library, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-030-23388-4_10
Download citation
DOI: https://doi.org/10.1007/978-3-030-23388-4_10
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-23387-7
Online ISBN: 978-3-030-23388-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)