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  • Print publication year: 2014
  • Online publication date: October 2014

3 - The adversary system


The preceding chapter explored ethical arguments at the microlevel, considering the connection between moral values such as dignity and autonomy and the duties they entail as a matter of professional ethics. This chapter shifts to the macrolevel, but retains a similar structure. Lawyers believe they have duties that are justified in the context of the adversary system of adjudication. The questions to be considered in this chapter are, first, what are those duties in general terms? Second, what is the adversary system, and how is it distinctive? And third, how might one go about justifying the adversary system on two types of moral theory – consequentialist and deontological?

The lawyer’s ethical view of the world

In the wrongful conviction case described in Chapter 1, Wilson’s lawyers maintained all along that they did not do anything wrong by electing not to disclose Wilson’s statement that he, not Logan, had committed the murder for which Logan was serving a lengthy prison term. The lawyers did not believe they were exempt from the demands of ethics. Rather, they believed that they were following a set of ethical principles that was worthy of their respect. Certainly, the law, in the form of the duty of confidentiality within the rules of professional, required them to respect Wilson’s decision not to admit publicly that he had killed the security guard. Beyond that, however, the lawyers believed that they did the right thing more generally, that the law rightly required them to keep Wilson’s secret, and that they should not be subject to criticism in ethical terms for following the law. As one of Wilson’s lawyers put it:

“If I had ratted him out … then I could feel guilty, then I could not live with myself,” he says. “I’m anguished and always have been over the sad injustice of Alton Logan’s conviction. Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? It’s clear where my responsibility lies and my responsibility lies with my client.”

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