Member lawyers: management or extinction – La Tercera

Director:

In January this year, new member lawyers were appointed to different Courts of Appeal. As always, the controversy was intense. This time, in addition to questioning the institution, the stings were directed against the political profile of some.

But the political aspect of a member lawyer who, unlike judges, is not expressly prohibited from taking part in it─ is only one of the many prohibitions that can be made, and are, -again, warning of the weakening of impartiality.

The impartiality of the members, at its base, can affect the appointment system in charge of the Executive Branch, due to the temporary nature of the situation that will trigger a change in the authority in power.

However, there is a more serious danger: the use of all lawyers – members can freely use their profession. In our legislation, there are no precise limits for the professional practice of a member lawyer. Article 198 of the COT provides that it is a reason to refuse if it supports businesses dealing with the same issue that the court has to resolve. It is something, but very little. The Bar Association’s Code of Ethics prohibits the member’s intervention, directly or indirectly, in matters that must be resolved by the court of which he is a member. It is something more, but its application is limited. The Supreme Court (Act 29-2002) ruled and pointed out that “although the lawyers who are members are not subject to a prohibition to exercise the legal profession freely (…), the nature their actions advise that this professional practice should not. to be done directly before the court in which they are appointed.” The recommendation is strong, but not necessary.

This lack of regulation forgets human sweat: a lawyer who joins a court and then defends rights before having connections with his judges and being able to influence them (even unintentionally: friendship, strong knowledge , acuity, etc.), compromising objectivity as a result. the parts. Therefore, the opportunities to influence are multiplied. For this reason, either it is regulated in detail or the institution of member lawyers intends to disappear.

María Elena Santibánez

Roman Paul

PUC Law Professors