Hostname: page-component-8448b6f56d-mp689 Total loading time: 0 Render date: 2024-04-25T02:25:04.989Z Has data issue: false hasContentIssue false
  • English
  • Français

The Moral Obligations of Lawyers

Published online by Cambridge University Press:  09 June 2015

Joram Graf Haber  and
Bernard H. Baumrin
Get access

Extract

Recent work in legal ethics has raised the question of whether lawyers, in performing certain kinds of actions otherwise criticizable on moral grounds, can escape such criticism by appealing to the role they occupy in the legal system. Such actions include but are not limited to “gray-mailing”, making truthful opposing witnesses look like liars, defending criminals believed to be guilty, and defeating just claims on technicalities. Often, the question has turned on whether the adversary system of which lawyers are members is itself a morally worthy system. And depending upon the answer to this question are the answers to a number of related questions. Of these, the most widely discussed is whether and to what extent a lawyer should respect a client’s confidences.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 1 , Issue 1 , January 1988 , pp. 105 - 117
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Previously published in “Philosophy and Law Newsletter.”, a publication of the American Philosophical Association, Newark, Delaware, Fall 1986, pp.3-10. The present version, especially Part III, has been revised. Special thanks owed to Carl Wellman, as well as to Virginia Held.

2. Luban, D. The Good Lawyer (1983) (herinafter cited as Luban).Google Scholar This book, published in 1983, is an excellent contribution to the field of legal ethics in that it contains rigorous articles by eminent philosophers. In addition to the essay on the adversary system and confidentiality, the book contains articles on such issues as the duty to represent immoral causes, the moral psychology of the lawyer’s role, and the moral character and education of lawyers. Unfortunately, the breadth of the book mandated that we neglect several otherwise worthy essays. Luban‘s book is also preceded by a detailed introduction to the field of legal ethics and an insightful analysis of the theories which help explain many of the views taken on the issues presented. If there is a problem with the book, it is only because there is little diversity among the authors on the subject of confidentiality. Curiously, there is no selection by Monroe Freedman. although his viewpoint is discussed at length in Luban’s introduction. We call this “curious” given his impact on the legal ethics debate as well as the many references to his position by the philosophers which have been included. Freedman personally has told us that his essay “Personal Responsibility in a Professional System” should have been sent out to the conferees at the Working Group since it is the one that “speaks directly to the good lawyer issue.“But in fairness to Luban, he did not know in advance how many of the participants would come out on many of the issues discussed.

3. Wasserstrom, R. “Lawyers as Professionals: Some Moral Issues”. (1975), 5 Human Rights. Google Scholar reprinted in Wasserstrom, R. Today’s Moral Problems, (3rd edition. 1985), at 274–292.(references are to this volume)Google Scholar

4. Fried, C. “ The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation”. (1976) 85 Yale L.J. 1060.Google Scholar

5. Freedman, M. Lawyers’ Ethics in an Adversary System, (1975). Google Scholar

6. Kipnis, K. Legal Ethics (1986).Google Scholar See also Elliston, Davis & Ethics and the Legal Profession (1986).Google Scholar

7. supra, note 3.

8. Wasserstrom, R. “Roles and Morality” in Luban, supra, note 2, at 25–37.Google Scholar

9. Wasserstrom, R. supra, note 3, at 278.Google Scholar

10. Id., at 275.

11. See Wasserstrom, R. supra, note 8, at 30–37.Google Scholar

12. Fried, C. supra, note 4.Google Scholar

13. Id., at 1061-1062

14. Wasserstrom, R. supra, note 8, at 37.Google Scholar

15. Bayles, M. Professional Ethics (1981), at 65.Google Scholar

16. Dauer and Leff, “Correspondence-The Lawyer as Friend” (1977), 86 Yale, L.J. 573.Google Scholar

17. Id., at 576-578.

18. Simon, W. “The Ideology of Advocacy: Procedural Justice and Professional Ethics” (1978), 29 Wisconsin L.R. 30.Google Scholar

19. Freedman, M. “Personal Responsibility in a Professional System” (1978), 27 Catholic U. L.R. 191, at 197.Google Scholar But Fried does insist upon the analogy making Freedman’s defense rather spurious. See Fried, C. supra. note 4, at 1072.Google Scholar

20. Freedman, M. supra, note 19. at 197.Google Scholar

21. Wasserstrom, R. supra, note 3, at 283.Google Scholar

22. See Freedman, M. supra, note 19 at 193–96.Google Scholar

23. See, generally. Fried, C. supra, note 4. Google Scholar

24. This maxim is taken literally by Fried, as well as by deontological purists. If taken literally, it would imply that we release all prisoners in the U.S. penal system since there is at least the posibility of doubt that one innocent person has been unjustly convicted. We owe this observation to Peter Wizenberg

25. See, Fried, C. supra, note 4 at 1082–1087.Google Scholar

26. Id.

27. Schwartz, M. “The Professionalism and Accountability of Lawyers”, (1978) 66 California L.R. 669. Google Scholar

28. Id.. at 673.

29. Postema, G. “Moral Responsibility in Professional Ethics”, (1980) 55 N.Y.U. L.R. 63, at 73.Google Scholar

30. Simon, W. supra, note 18, at 36–37.Google Scholar

31. Schwartz, M. supra, note 27, at 674.Google Scholar

32. Luban, D. “The Adversary System Excuse”, in Luban, supra, note 2. at 83–122.Google Scholar

33. Id., at 93-111.

34. Id., at 111-113.

35. Id.,at 112.

36. Frankel, M. “The Search for Truth: An Umpireal View” (1975), 123 U. of Pennsylvania L.R. 1021 at 1034.Google Scholar

37. See, for example, Strick, A. Injustice for All, (1977).Google Scholar

38. Donagan, A. “Justifying Legal Practice in the Adversary System,” in Luban supra note 2, 123 Google Scholar

39. Freedman, M. supra note 5.Google Scholar

40. Freedman, M. “Lawyer-Client Confidences Under the A.B.A. Model Rules: Ethical Rules Without Ethical Reason,” 3:2 Criminal Justice Ethics, (1984).CrossRefGoogle Scholar

41. Id.at 7-8.

42. Ibid.

43. Ibid.

44. Landesman, . “Confidentiality and the Lawyer-Client Relationship.” in Luban. supra note 2. 191 at 203.Google Scholar

45. Id. at 199.

46. Id. at 203.

47. Id. at 209-210.

48. Freedman, M. supra note 5 at 31 Google Scholar

49. Donagan, A. supra note 40.Google Scholar

50. Id. at 133.

51. Id. at 132.

52. Freedman, M. “An Important Issue,” 8:8 The National Law Journal, (1985), 13 at 24.Google Scholar

53. For information about this case, see generally Keenan, Goldberg and Dick, eds. Teaching Professional Responsibility: Materials and Proceedings from the National Conference (Detroit: University of Detroit School of Law, 1979), 237-325.

54. Donagan, A. supra note 40 at 143.Google Scholar

55. Id. at 142-143.

56. Luban, supra note 32 at 94.Google Scholar

57. 89 L.Ed. 2d 141.

58. Ibid.

59. Goldman, , “Confidentiality, Rules, and Codes of Ethics,” 3:2 Criminal Justice Ethics, (1984), 8-14.CrossRefGoogle Scholar

60. Id. at 12.

61. See, e.g., Shelp, E. ed. Virtue and Medicine: Explorations in the Character of Medicine: (1985).Google Scholar

62. Williams, B. “Professional Morality and Its Dispositions,” in Luban, D. supra note 2, 259 at 261.Google Scholar

63. Held, V. “The Division of Moral Labor and the Role of the Lawyer”, in Luban, D. supra note 2, 60 at 66–67.Google Scholar

64. Id. at 67.

65. Id. at 68.

66. See generally, Kant, I. Fundamental Principles of the Metaphysic of Morals.Google Scholar

67. Kipnis, K. supra note 6 at 14.Google Scholar