What is the ethical duty of a lawyer? This Powerpoint considers two forms: legal advocate and moral agent.
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Ethics and the Courts Chapter 8
From last class…[We completed policing and ethics.] • Policing should be a kind of profession where ethical training guides administration of law (like medicine/law). • However, because personal threat is possible, police are trained (and subculture emphasizes) that one must protect and serve themselves first. • “Better 12 judging than 6 carrying.” • So, police face a dilemma of doing their jobs professionally (protect and serve) while also keeping themselves safe personally. • Ethical Solution (?): Police need to do JUST their job [Due Process]: gathering evidence are turning over suspects to the courts to determine guilt or innocence.
…to this class. • What are the ethics of practicing law? • What is the job of the lawyer when it comes to their relationship to the client and the criminal justice system? • Do defense attorneys and prosecutors practice the law differently?
What are the ethics of practicing law? Two (stereotypical) varieties: LEGAL ADVOCATE (AMORAL) MORAL AGENT
LEGAL ADVOCATE (AMORAL) • “Hired Gun:” concerned only with proving innocence of client even if they know the client is guilty. • Might charge exorbitant fees to “win” a case. • Lies and deceives: the end justifies the means. • Might harm others in the process of a “win.” Two types: 1) Gury/Godfather—Advising client to protect client’s interest. 2) Friend—Doing the client’s bidding according to client’s interest.
LEGAL ADVOCATE (AMORAL): Example They Don’t Fit!
MORAL AGENT • Treats clients and all others with respect, as an end rather than a means. Would sacrifice “winning” a case to be respectful. • Sacrifices money, time, energy to support a moral cause. • Engage in the highest form of professional ethics. • Does not overcharge for services rendered. • Apply their own personal standards of morality to solve dilemmas.
MORAL AGENT PROBLEMS • There already exists a professional code of ethics [Model Rules, ABA]. • Personal morality is too subjective and undermines a professional code of ethics. • The moral agent lawyers does not act in the best interests of their client, acting rather in accord with their personal moral code. own
MORAL AGENT PROBLEMSRESPONSES • There already exists a professional code of ethics [Model Rules, ABA]. • Model Rules are insufficient. E.g. Enron/Arthur Anderson • Personal morality is too subjective and undermines a professional code of ethics. • One’s personal morality can protect against unjust ‘character assassination.’ • The moral agent lawyers does not act in the best interests of their client, acting rather in accord with their personal moral code. • A lawyer is in service to the criminal justice system, not the client.
What is the job of the lawyer when it comes to their relationship to the client and the criminal justice system? LEGAL ADVOCATE (AMORAL) MORAL AGENT [PROTECT CLIENT AT ALL COSTS] [PROTECT LAW AT ALL COSTS]
MODEL RULES? Two interpretations The lawyers “shall abide by a client’s decisions concerning the objectives of representation [and] shall consult with the client as to the means by which they are to be pursued.” (137) • Encourages client participation but lawyer has final say. • Encourages client to consult with lawyer but client has final say.
If a lawyer knew of the location of a victim’s body, should they inform police (law) or use that knowledge to help reduce their client’s sentence (client)?
If a lawyer knew of an active child molester, should they inform police (law) or use that knowledge to help reduce their client’s sentence (client)?
Dilemma: Ethics of “Care” vs. “Rights” • Clients have a right to privacy and discretion in their relationship with their lawyer. So, lawyers have a duty to a “Rights” Ethic. • Lawyers have a requirement to protect and care for the clients of the justice system, the general public, and thus may overstep the “Rights” Ethic for a “Care” Ethic.
Ethics of Care vs. Rights: Colorado 2002 • An Asst. District Attoney pretended to be a public defender. Assuring a suspect of his confidence, the suspect confessed to murdering 3 women and violent acts to a fourth woman. The Asst. AD asked the client to turn themselves in to avoid harm and the suspect followed this advice. However, the Asst. AD was charged with “dishonesty, fraud, and deceit or misrepresentation” and was suspended from practicing law.
Do defense attorneys and prosecutors practice the law differently? Given Colorado 2002, there are distinct legal differences between public defenders and prosecutors: Public defenders advocate for clients Prosecutors advocate for “justice” (the criminal justice system). However, studies show that Prosecutors really serve “winning” a case and proving guilt.
DA Dilemma Consider a DA who prosecutes a statutory rape case where the victim gave consent, had known prior sexual relations, and the suspect had no prior sexual crimes nor knowledge of the victim’s young age, but must be sentenced to 10-30 years w/o parole if convicted. In addition, the victim and suspect still have a relationship. The defense is asking to settle with a deal, but the DA is does not think this is just, until he sees a photo of the victim who looks to be over 18. Should the DA take the plea? Or should the DA prosecute the suspect?