Legal ethics
| Ethics |
| Theoretical |
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Meta-ethics |
| Applied |
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Medical ethics / Bioethics |
| Core issues |
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Justice / Value |
| Key thinkers |
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Aristotle / Confucius |
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].
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 prolbems that arise in the profession.
Here we will be able to list and briefly discuss only some of the broad quuestions and headlines that occur in the field of legal ethics.
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 we take 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 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 combat that can be brought to the proceeding. But 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, seem to be the most fundamental questions in legal ethics.
For a defense lawyer in a criminal case there are the further questions 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 cldes 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 coprorate 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 governemnt 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 laywer ignore this and still give his best aid to the cleint and the client's case and interests?
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 three so many vicious lawyer jokes and so much animosity directed at lawyers because people—non-lawyers—recognize that lawyers and lawyering mostly make 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. In this way it is possible 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 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.
ReferencesISBN links support NWE through referral fees
- Carle, Susan D., Ed., Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader, New York & London: New York University Press, 2005. ISBN 0814716393 (cloth; alk. paper) ISBN 9780814716397 (cloth; alk. paper) ISBN 0814716407 (pbk.; alk. paper) ISBN 9780814716403 (pbk.; alk. paper)
- Gerson, Allan, Ed., Lawyers' Ethics: Contemporary Dilemmas, New Brunswick, NJ & London, UK: Transaction Books, 1980. ISBN 0878552936
- Kaufman, Andrew L., Problems in Professional Responsibility, Law School Casebook Series, Boston & Toronto: Little, Brown and Company, 1976.
- Kronman, Anthony T., The Lost Lawyer: Falling Ideals of the Legal Profession, Cambridge MA & London, UK: Harvard University Press, 1993. ISBN 0674539265 (cloth) ISBN 0674539273 (pbk.)
- Linowitz, Sol M., with Martin Mayer, The Betrayed Profession: Lawyering at the End of the Twentieth Century, Baltimore & London: The Johns Hopkins University Press, 1994. ISBN 080185329X (pbk.)
- Nader, Ralph, and Wesley J. Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America, ISBN 0-375-75258-7
- California Rules of Professional Conduct, published by the Office of Professional Competence, Planning & Development of the State Bar of California.[3]
External links
- State Bar of California Professional Responsibility (Legal Ethics)
- New York Professional Responsibility Report (NYPRR)
- LII Law about... Professional Responsibility (Legal Ethics)
- The Legal Information Institute at Cornell University (U.S.)
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