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The Moral Obligations of Lawyers

Published online by Cambridge University Press:  09 June 2015

Joram Graf Haber  and
Bernard H. Baumrin
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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

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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.

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7. supra, note 3.

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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

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26. Id.

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34. Id., at 111-113.

35. Id.,at 112.

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42. Ibid.

43. Ibid.

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45. Id. at 199.

46. Id. at 203.

47. Id. at 209-210.

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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.

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55. Id. at 142-143.

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57. 89 L.Ed. 2d 141.

58. Ibid.

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60. Id. at 12.

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

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65. Id. at 68.

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