Legal ethics

Ethics
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Good and evil | Morality

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Legal ethics is a branch of applied ethics, having to do with the study and application of what is right and wrong, good and bad, in the practice of law.

In many places, lawyers are bound by an ethical code that is enforced either by a high court (such as State supreme courts in some American states) or by self-governing bar associations, which have the authority to discipline (up to and including disbarment) members who engage in unethical professional behavior. American law schools are required to offer a course in professional responsibility, which encompasses both legal ethics and matters of professionalism that do not present ethical concerns.

While legal codes of ethics differ from place to place, they tend to have some common statutes governing things such as conflicts of interest, incompetence, bribery, coercion, communications with jurors, coaching witnesses, and so on.

Every U.S. state has a regulatory body (usually called a state bar association) that polices lawyer conduct. When lawyers are licensed to practice in a state, they subject themselves to this authority, which in turn is generally overseen by the state courts. The state bar associations adopt a set of rules that specify the enforceable ethical duties that a lawyer owes to clients, the courts, and the profession. As of 2007, 47 states have adopted a version of the American Bar Association's Model Rules of Professional Conduct.[1] One state, New York, has a version of the ABA's older ethical model, the Model Code of Professional Responsibility. California and Maine are the only states that have not adopted either—instead these states have composed their own rules.[2].

Contents

The field of legal ethics is very broad, the code of conduct for lawyers is complex, and a great deal has been written about it. There are lawyers today who specialize in legal ethics, so their clients are other lawyers who are concerned about ethical problems that arise in the profession.

Basic questions

The first questions that arise in legal ethics have to do with the purpose of law, and especially the purpose(s) or goal(s) of the legal profession. Is the goal of the lawyer the pursuit of truth? The pursuit of justice? Winning the case for the client? Serving the court, the law, and/or the legal profession? Upholding the legal system? Amassing as many billable hours as possible or otherwise gaining as much money from the case as possible? Some combination of those goals? Are some of those goals noble while others are ignoble?

If one takes John Rawls's pronouncement that "justice is fairness" and couple that with the assertion or claim that justice is the first principle of a legal system, then it would seem to follow that the legal system should seek fairness, and lawyers should be committed to both justice and fairness.

The American legal system, however, is an adversarial one, meaning that in a legal proceeding there are two sides that meet as opponents, and the lawyers on each side engage in a form of combat—combat done with means other than physical weapons, and including words, legal briefs and arguments, theatrics, body language, threats, intimidation, and any other means short of actual physical confrontation that can be brought to the proceeding. However, a lawyer is also an officer of the court, and the purpose of the court is supposed to be to seek justice. Thus, many observers of the legal system note, lawyers are caught in an inherent ethical and philosophical bind between their duties to their client (to win the combat for the client) and their duties to the court (to seek justice). If that is so, then there is an inescapable ethical dilemma at the heart of lawyering. Whether that is true, and if so what it means and whether it can be overcome in any way, seems to be the most fundamental questions in legal ethics.

For a defense lawyer in a criminal case, there are the further questions of whether it is ethically permissible to defend a client who the lawyer knows to be guilty, and whether it is ethically permissible to attack and attempt to discredit a witness against one's client when one knows that the testimony of the witness is truthful and accurate. The usual and probably best answer to those questions, given the existence of the adversarial system, is that it is not the job or the function of the defense lawyer, as advocate for his client, to determine what is true and who is telling the truth and whether the client is guilty or innocent—those are determinations to be made by the jury and/or the judge. Thus, according to that view, the proper ethical stance for the defense is to assume that the client is innocent and that witnesses against the client are mistaken or untruthful, and do everything possible to uphold that view until the judge or jury has held otherwise. Taking that stance, however, does put the lawyer, if he is to serve his client in the best possible way, in the position of needing often to do things within in a legal proceeding that would be considered highly unethical were they to be done in ordinary life outside of such a proceeding.

Additional ethical problems for lawyers

A host of additional ethical problems have been raised by lawyers, by the codes of ethics for lawyers, and by writers in the field of legal ethics.

What should lawyers, and especially judges, do when faced with a conflict of interest—with a situation in which serving one interest in a case means going against another interest that they also serve or have served? Suppose a lawyer had once worked for the adversary of someone who is now his client? Can he be seen to be fair and unbiased now? One answer is to withdraw from the case, but that is not always possible, and anyway would seem to suggest that the lawyer is of weak character, so that he could not be fair.

What about corporate lawyers or lawyers representing the government? Who is their client? What if they think their client—the corporate board or officer(s) or the government—is being unfair and harming the public interest? Should they continue to do their best to see that their putative client succeeds? What if a government lawyer knows that the government agency that he is representing has put forth inaccurate data? Should he proceed as if he does not know that this data is wrong?

Another big area of legal ethics and responsibility has to do with client interests and client confidentiality. Suppose the client wishes to do something that the lawyer thinks is unwise or illegal? Should the lawyer tell the client this, or should he go on as if the client is right? What if the client reveals to the lawyer that he intends to commit a crime? What if he reveals a continuing crime? Should the lawyer continue as before, or does the lawyer have a responsibility to inform the authorities about the crime that is likely to be committed or that is continuing to be committed?

Do lawyers have a duty to represent unpopular clients, especially those accused of heinous crimes, or who engage in other conduct that is considered to be odious? Should the lawyer represent and aid that client? What if the lawyer finds the conduct of the client to be odious—should the lawyer ignore this and still give his best aid to the client and the client's case and interests?

The overwhelming size and cost of the legal profession and lawyers are especially a problem in the United States. Many people have noted that the Founding Fathers never envisioned that the courts and the legal profession would occupy the large role and prominence that it has come to have in the new nation that they were constructing. The United States has far more lawyers, per capita, than any other advanced industrialized nation, and they hold a far more prominent role in the U.S. than elsewhere. Today, most lawyers are involved in business matters, not in criminal ones. One issue is fees paid to lawyers. It has been estimated that law and lawyers cost the United States as much as $300 billion per year, or even more. Is this money well spent? Does it yield any return to the country as an investment, or is it a drain on the economy? Are there so many vicious lawyer jokes and so much animosity directed at lawyers because people—non-lawyers—recognize that lawyers and lawyering mostly create more harm than benefit and drain so much money into their coffers and their profession that they bring down everyone else's financial well-being?

One way that lawyers have of running up their fees is to prolong the process of discovery, making endless demands of the other side, with the clock running for legal fees the entire time. Besides simply prolonging the proceedings in order to milk the case for as much money as possible, it is also possible to do this in order to force an adversary to concede because the adversary runs out of money for legal fees, even though the adversary was in the right or had the best case. This is done very often as a means of winning a case through intimidation—threatening to bankrupt the other side by prolonging the proceedings and forcing the other side to spend itself into the ground, whether the other side is guilty or innocent of the claims made against it. This is clearly unethical, but it has become a standard procedure in many legal proceedings and for many lawyers and law firms.

Lawyer and commentator Sol Linowitz has written that judges are to blame for allowing this to go on.

If they wished, judges could make lawyers use the discovery process only as … [it was] intended [to be used]. It is the responsibility of the judge to schedule the course of a lawsuit. Judges can and should make lawyers prove why they need the testimony or documents they demand for discovery and could narrowly restrict the imposition of cost and time on their opponents. [In the past], judges ruled scornfully against lawyers who wished to conduct what were called "fishing expeditions" among their opponents' employees or paper. The rules of evidence, requiring a demonstration that what is to be elicited is relevant to the cause of action, should be enforced in discovery proceedings just as they are in the courtroom. Judges could be receptive to complaints by witnesses or opposing lawyers that the discovery process was being abused, and could refuse the use at the trial of statements drawn by an abusive discovery (The Betrayed Profession, p. 171).

Some commentators, notably Linowitz, have claimed that, toward the end of the twentieth century, the legal profession changed and betrayed itself and drifted into unethical conduct. Linowitz and others have made a number of accusations. The most serious of those is that in the past, law and lawyering were not seen so much as an adversary system and a way of making money, but as a way of providing practical skills, wisdom, invention, and means of getting things done, by lawyers who acted as

fiduciaries, actors on behalf of others, who put the interests of those others ahead of their own. This was not a matter of altruism: their license to practice law implied the acceptance and enforcement of fiduciary obligations. The satisfactions of practicing law were in the knowledge that others depended on your judgment, your loyalty, and your abilities, and that at the end of the day you knew that you had, in fact, helped your client. In my generation, we thought of law as a helping profession, not a continuation of war by other means.

Moreover, it was understood that a good lawyer helped his clients not to evade the law but to obey it (The Betrayed Profession, p. 3).

Linowitz's claim is that law and lawyering have changed drastically since then. Now it is about making as much money as possible, running up as many billable hours as possible, winning at any cost, and developing a body of techniques that can be sued for the benefit of the client. The notion of a lawyer as a wise person who serves the public good has become quaint and mostly unknown. Linowitz and others fault law schools and what is taught therein as well as the attitudes fostered there, the growth of large legal companies (some with as many as a thousand or more lawyers) and partnerships, large fees, and a desire to make as much money as possible and to do everything possible to win as the major corrupting influences, leading to a widespread unethical stance and system within the legal profession today, at least as it exists within the United States.

Some alternatives

Philosophy professor Elliot D. Cohen has argued that, even within the adversary system, there are two different possible concepts of what a lawyer can and should be. He calls them the "pure legal advocate" and the "moral agent." The pure legal advocate is defined as the lawyer whose "role of a lawyer is restricted to that of the client's legal advocate, and in which a good lawyer is thus conceived as being simply an effective legal advocate" (Cohen, p. 352). But he goes on to argue that the pure legal advocate does not conform to requirements of ethics.

If I am correct, then it appears that the pure legal advocate who scrupulously adheres to her restricted role, far from being a morally good person, will be given ample opportunity for becoming—if she is not already—quite the opposite. For she will thereby be placed in a professional climate conducive to her being unjust instead of just; untruthful instead of truthful; unmotivated by a moral outlook instead of morally courageous; illiberal instead of liberal; callous instead of benevolent, morally irresponsible instead of morally autonomous. In short, she will fall well below the minimum standards of a morally good person (Cohen, p. 355).

Cohen goes on to claim that there is an alternative to this, namely becoming a moral agent, one who "subscribes to the moral principles to which a morally good person would subscribe were she to participate in an adversarial process" (Cohen, p. 356). He goes on to list a set of formulations for being a morally good person and to claim that a lawyer can meet those criteria and be a morally good person, even while being an advocate for her client.

Amy Gutmann, university professor at Princeton University, has asked whether virtue can be taught to lawyers, and answered the question affirmatively, provided there is a change in law schools and the content and methods of their education. She writes:

I can only mention, briefly and tentatively, two ways of moving legal education further in the direction of teaching the deliberative virtues. the first is a change in law school education that would parallel what has been happening in many medical schools and for related reasons: the expansion of clinical practice for the purpose of teaching future lawyers how better to communicate with their clients.

A second way of moving legal education further in the direction of teaching deliberation is for regular law school courses to teach more of the knowledge and understanding that is necessary to make informed judgments about alternative legal strategies. …The Socratic method employed for the sake of deliberation would have students engaging in the give-and-take of argument about the value of various legal strategies in light of consideration of social justice and conceptions of the good life in a constitutional democracy (Gutmann, p. 366).

Notes

  1. American Bar Association, Center for Professional Responsibility. Retrieved November 24, 2007.
  2. The State Bar of California, Rules of Professional Conduct—2007. Retrieved November 24, 2007.

References

  • California Bar Association. California Rules of Professional Conduct. Retrieved November 24, 2007.
  • Carle, Susan D., ed. Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader. New York: New York University Press, 2005. ISBN 0814716393
  • Cohen, Elliot D. "Pure Legal Advocates and Moral Agents." In Criminal Justice Studies, Vol. 4, No 1 (Winter/Spring, 1985).
  • Gerson, Allan, ed. Lawyers' Ethics: Contemporary Dilemmas. New Brunswick, NJ: Transaction Books, 1980. ISBN 0878552936
  • Gutmann, Amy. "Can Virtue Be Taught to Lawyers?" In Stanford Law Review, 45 (1993).
  • Kaufman, Andrew L. Problems in Professional Responsibility. Toronto: Little, Brown and Company, 1976.
  • Kronman, Anthony T. The Lost Lawyer: Failing Ideals of the Legal Profession. London: Harvard University Press, 1993. ISBN 0674539265
  • Linowitz, Sol M. and Martin Mayer, The Betrayed Profession: Lawyering at the End of the Twentieth Century. Baltimore: The Johns Hopkins University Press, 1994. ISBN 080185329X
  • Nader, Ralph and Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America. New York: Random House, 1996. ISBN 0-375-75258-7

External links

All links retrieved June 24, 2018.

General Philosophy Sources

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