PROFESSIONAL RESPONSIBILITY
WHELAN (VISITING)
OUTLINE
A.) THE LAWYER-CLIENT RELATIONSHIP
I.) THE ETHICS OF THE ADVERSARY SYSTEM
1.) Lawyers’ Ethics on Trial: Hired Guns or Heroes?
2.) “Tragic Choices” and the Lawyer – the “Stuck Man” Hypothetical
Why are Lawyers so Unpopular?
-they are doing their job, what their clients want regardless of what that is, whether it is immoral or horrible; putting aside morals and own personal standards for your clients
Professional Responsibility: the law of lawyering; regulation of lawyers; obligations under state bar disciplinary rules, etc.; legal requirement
Legal Ethics: sys. of policy arguments justifying official decisions applying law of lawyering; moral requirement
Neutrality: put aside personal views and be neutral as to what client wants
Partisanship: do the best you can and if you cannot advocate your client’s position, then you should maybe not take the case
3.) The Standard Conception of Legal Ethics
Standard Conception of Legal Ethics: if you are doing what a particular client wants then it is ok; fall-back justification for what lawyers do
(1) Lawyers should put aside personal views on what the client wants; lawyers should do for the clients what the client would do for him/herself if he/she had the skills to do so; consequence is that you are not morally responsible for what the client has done
(2) Lawyer is free to do everything they can do achieve what the client wants, to further the client’s interests; some say that lawyer is required to do everything they can to achieve this
-“a lawyer should represent his/her client zealously within the bounds of the law.” ABA Model Code; this is what a lawyer should do and what their professional responsibility is
WASSERSTROM: “Lawyers As Professionals: Some Moral Issues”
Two Criticisms of Attys:
(1) Atty stance to world at large
-amoral behavior of crim. defense atty is justifiable
-outside crim. D atty, role-differentiated amorality of atty is excessive, inappropriate
-strong role-differentiation can lead atty to amoral and even immoral behavior
-traditional justifications for amoral, role-differentiated atty (adversarial system, institutional justification) do not really support this role
-uncertain role-differentiation, “professional” role of atty is good thing
(2) Atty’s relationship w/ client
-relationship b/n client and atty is defective b/c client not treated w/ respect/dignity he/she deserves
-role differentiation leads atty to see client in a partial way producing paternalistic relationship
-suggests deprofesionalization as way to alleviate these problems
Role Differentiation: separating personal from professional self; act professionally apart from personal views on how you would normally act; de-personalize your actions and act outside yourself for your client (amoral technician)
-put aside personal beliefs and work for client to carry out his/her wishes
-Amoral Technician:
-take on the client’s values; do what the client would want to do if the client had the skills and the knowledge to do it himself
-be indifferent to the choices that t
nt. Rejects
Luban’s conclusion:
-adversary system only available as institutional excuse/only relevant in criminal and quasi-criminal defense
-non-crim context, adversarial system only has slight moral force; can only excuse slight moral wrongs; anything morally wrong for non-atty to do on behalf of another is morally wrong for atty to do as well
-no justification for setting aside your own morals just b/c you are an atty
-standard conception of legal ethics depends on adversarial system; adversarial system not adequate excuse for atty to be immoral
-so in hypos, Luban would say that you are not justified to set aside your own personal views and behave in an immoral way
Model Rule 1.2(b) (Competence)
“A lawyer’s representation of a client… does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
-attorney may be acting for the client, but he/she is not personally or professionally supporting their views
-you are acting as a person’s right to representation and right to challenge the prosecution’s evidence; if you or someone didn’t do it, then the constitution/legal system fails; being an amoral technician is essential
-as amoral technician, brutally cross-examine rape victim b/c in best interest of client
