Masaryk University
October 2011
Class VI
 We have discussed two major topics in these
classes:
– How are disputes resolved:
 Litigation
 Arbitration
 Mediation
– How can we assure transparency in the operations of
government
 Freedom of Information
 Whistle-blower to expose corruption
 Prosecutions for Bribery, even outside of the country Antitrust
regulation to assure fairness in the marketplace
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 But, how can we assure that the decisionmakers
– the judges, arbitrators and mediators
are being fair?
 How can we assure that the lawyers are acting
properly?
 How can was assure that the public prosecutor
is making decisions based only on the merits?
 These are among the most sensitive positions to
assure the integrity of the system.
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 A. Judges, Arbitrators and Mediators
 First Line of Defense: Rules of Conduct
– U.S. Judicial Rules of Conduct limit the activities of
judges.
– Cannot have outside employment (except teaching).
– Cannot have business relationships with lawyers
who have or will appear before them.
– Cannot have conduct with one lawyer in a dispute
without the other lawyer being present.
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 Second Line of Defense: Selection of Judges –
inquiry into past practices to assure
impartiality and character traits appropriate for
judges.
– Selection of judges is different in the Czech Republic.
 Third Line of Defense: Removal of Judges
– In the U.S., while difficult, it is possible.
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 The story of U.S. Judge Alcee Hastings
– Accused of taking $150,000 bribe to award a low
sentence to a criminal defendant.
– FBI tried to arrest Hastings right after the bribe but
he ran faster.
– But the bribe money was found in his home.
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 Hastings was tried for bribery
– He won!
– He was found not guilty because the person who
bribed him refused to testify (and went to prison
because of that).
– But, he was “impeached” (obvinĕný) and removed
as a judge.
– That’s not the ending!
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 Like judges, arbitrators and mediators are
subject to rules of conduct.
 Like judges, each arbitrator and mediator must
promise to disclose any relationship with one
of the lawyers in a case before him/her.
 Failing to do so can result in vacating
(reversing) the ruling and award and starting
over.
 An arbitrator or mediator who failed to
disclose a conflict will likely get no further
assignments.
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 B. Integrity of Lawyers
 Screening when lawyers are licensed
– Bar Exam to test competence.
– “Character and Fitness” to assure each candidate has
demonstrated good character.
 What about errors committed long ago?
– Period of apprenticeship (in C. R. and E. U.
generally).
– Rules of Professional Conduct each lawyer promises
to meet.
– Ethics reviews by licensing commission (in US, the
“Bar”) in case of complaints or questions.
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 Not this bar:
 But this one:
Reviews complaints of improper (unethical)
conduct and may disbar the lawyer.
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 C. Public Prosecutors
– Who does prosecutor serve?
 The authority who appointed (and can terminated him)?
 The public, which depends upon his job being properly
performed?
– How to assure that the prosecutor is applying the law
impartially and not as a result of political pressure?
 Election of prosecutors, with fixed term of office?
 Public criticism of prosecutors’ decision.
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– Censure before the bar, applicable to all lawyers?
– Should the Public Prosecutor be a career position?
– Does that make it more likely the Prosecutor can be
improperly influenced ?
– Should the position be elected or appointed?
– Campaign contributions can provide opportunity for
corruption.
– Appointment promotes favoritism to the appointing
authority.
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 Should “transparency” apply to non-governmental
areas? For example:
 Labor Unions: these help to set the standards and
pay for workers. Labor Unions must work with
employers to negotiate agreements.
 Does that present an opportunity for corruption?
 Should there be laws that require the election process of
labor officials to be open and known to the public?
 Is there a public concern wherever there are persons who
are responsible to others?
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 Should transparency apply to companies that
are owned by the public (or partly owned by
the public) ?
 Should transparency apply to charities that
serve the public with funds from private or
public sources?
 Are there some organizations – private clubs,
for example – where “transparency” is
unnecessary ?
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 SUMMARY:
 Purposes of Transparency
 - Respect for the integrity of those who resolve disputes
 - Respect for those who make or apply laws
 - Builds confidence that the legal system we use to
resolve disputes is fair to all.
 - Assures that those who make the decisions know they
will be held to account for their actions, and in doing so
assures that their actions will be proper.
 - Applies to all types of decision makers who have
public responsibilities.
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