AJ 482

ETHICS AND LEGALPROFESSIONALS

Lecture Slides prepared by Mark Kellar

“First . . . , Let's Kill All the Lawyers . . .”

• The public has little confidence in lawyers’ ability to live up to ideals of equity, fairness, and justice

• Both Plato and Aristotle condemned the advocate’s ability to make the truth appear false and the guilty appear innocent

• The lawyers’ ability to argue either side of an issue raises a level of distrust

• The law can be a tool of oppression or a sword of power; lawyers and judges are the ones who wield its power

Ethical Standards for Lawyers

The American Bar Association set ethical guidelines for lawyers in its Model Rules of Professional Responsibility

Each state bar association can sanction offending lawyers or recommend suspension of their law license

Many complain that bar associations ineffectively police their own ranks

While law schools require ethics courses, many believe that, in practice, ethical considerations are secondary

The Attorney-Client Relationship

The Legal Agent model defines the lawyer as neither moral nor immoral, but merely a tool

Under the Special Relationship model, the lawyer places loyalty to the client above all other considerations

Under the Moral Agent model, the lawyer must adhere to his or her own moral code

LEGAL AGENT vs. MORAL AGENT

• Being a purely legal advocate is inconsistent with being a moral person

• Pure legal agents sacrifice values of truthfulness, moral courage, benevolence, trustworthiness, and moral autonomy

• To maintain individual morality, a lawyer must be a moral agent as well as a legal advocate

LEGAL AGENT vs. MORAL AGENT

Cohen’s Moral Principles for Lawyers:

• Don’t treat people merely as the means to winning cases

• Treat similar people similarly

• Don’t deceive the court

• Make reasonable personal sacrifices for morally good causes

• Don’t financially support or profit from wrongful acts

• Avoid harming others while representing your client

• Be loyal to your client; don’t betray confidences

• Make moral decisions; act consistently upon them

LEGAL AGENT vs. MORAL AGENT

Criticisms of Cohen’s Principles:

• They are naïve and wrong on several counts

• Existing rules already prevent unscrupulous acts

• Decisions regarding justice and morality are so subjective that it is impossible for them to be judged

• A lawyer acting as a moral agent would forfeit client trust by substituting his or her own moral code for the client’s

A HIGHER STANDARD of BEHAVIOR?

Most agree that lawyers, like police officers, should be held to a higher standard of behavior.

Some allege that, instead, lawyers allow themselves a double standard, to wit:

• Lying is lying unless it is done by a lawyer

• Even then, it is just doing one’s duty, a mere “misstatement of fact” made in the client’s interests

DEFENSE ATTORNEYS

– Defense attorneys are often in the position of defending clients they know are guilty

– A lawyer is supposed to assist clients without regard for personal preference or interest

– People with unpopular causes and individuals who are obviously guilty still deserve counsel

– It is the ethical duty of an attorney to provide such counsel

DEFENSE ATTORNEYS

Attorney–client privilege prevents compelling attorneys to disclose confidential information about their clients

Exceptions that permit revealing confidences include:

• When clients consent

• When required by law or a court

• To defend against an accusation of wrongful conduct

• To prevent clients from committing crime or fraud

• To prevent, mitigate or rectify financial injury to another

DEFENSE ATTORNEYS

By rule, an attorney cannot allow perjury by the defendant

If perjury occurs before the attorney realizes the client’s intent, the defense must not use or refer to the perjured testimony

If a defendant commits perjury but the attorney does not know it is perjury, might this lead to a “don’t ask, don’t tell” mentality?

DEFENSE ATTORNEYS

Conflicts of Interest:

– Attorneys must not represent clients whose interests conflict with those of the attorney

– Attorneys must not represent two clients with opposing interests

If a heavy caseload compels an attorney to advise his or her client to accept a plea bargain instead of going to trial, has the attorney violated prohibitions against conflict of interest?

DEFENSE ATTORNEYS

Zealous Defense:

– Defense counsel is the client’s professional representative, not the client's alter ego

– Aggressive advocacy sometimes involves the use of ethically questionable tactics

– Some attorneys go to great lengths to choose a sympathetic jury. Is it ethical to “stack” a jury in favor of the client’s position?

DEFENSE ATTORNEYS

Resolving Ethical Dilemmas:

• The situational model weighs each case on its particular factors

• The systems model considers the guiding ethical rule to determine rightness or wrongness of a behavior

PROSECUTORS

Must seek justice, not convictions

Have discretion to charge or not charge defendants—one of the most important decisions in the criminal justice process

The decision to charge:

• May be influenced by politics

• Is especially sensitive in capital cases

PROSECUTORS

Factors Influencing the Decision to Prosecute:

– Legal sufficiency

– System efficiency

– Defendant rehabilitation

– Trial sufficiency

PROSECUTORS

Conflicts of Interest:

– Problems related to part-time prosecutors

– Problems related to a prosecutor’s political aspirations

– Problems related to asset forfeiture laws

PROSECUTORS

Plea Bargaining:

– Is considered by most to be efficient and probably inevitable, if not exactly “right”

– Makes sense if the goals of the system are crime control or bureaucratic efficiency

– Is harder to justify if the goals of the system are due process and protection of individual rights

PROSECUTORS

Media Relations:

No out-of-court statements should be given that would materially prejudice a proceeding

Statements regarding the general nature of the charge and information that is public record are permissible

PROSECUTORS

Expert Witnesses:

May provide testimony based on principles generally accepted in the scientific community

Benefit from a halo effect when their expertise in one area results in their receiving deference in other areas

Lose credibility after gaining a reputation as a “hired gun” by always appearing on one side of an issue

PROSECUTORS

The prosecutor’s goal is the achievement of justice, not the achievement of convictions

Zealous pursuit of justice is desirable, even commendable.

Overzealousness that leads to prosecutorial misconduct is reprehensible

Prosecutorial misconduct may include:

• Improper communication with the defendant

• Ex parte communication with the judge

• Failure to correct false testimony

• Failure to disclose evidence

PERCEPTIONS of JUDICIAL PROCESSING

• The American justice system is based on an adversarial model

• The ideal: two advocates of equal ability pursue truth, guided by a neutral judge

• Most defendants are represented by inexperienced advocates with large caseloads and insufficient time to spend with each client

• The practice of law has been called a confidence game

• Although attorneys appear to wage a battle against each other to achieve justice, for many, their primary allegiance is not to the client, but to themselves

PERCEPTIONS of JUDICIAL PROCESSING

Bureaucratic Justice:

The system’s goal—bureaucratic efficiency—often supplants the original goal—justice.

While not intentionally discriminatory, the policies and procedures of bureaucratic justice may cause perceptions of unfairness

Plea bargaining is consistent with bureaucratic justice, as it achieves maximum punishment for minimum work

The Wedding Cake Model:

The largest portion of cases are the cake’s bottom layers

The few "serious" cases are the top layer

The few high profile cases at the top of the cake exemplify “text book” justice

The bottom of the cake represents the majority of cases, in which defendants may meet with an attorney only once or twice immediately before agreeing to a plea arrangement

PERCEPTIONS of JUDICIAL PROCESSING

JUDICIAL ETHICS

The ABA’s Model Code of Judicial Conduct identifies ethical considerations unique to judges

The Code’s canons address:

– Impropriety and the appearance of impropriety– Impartiality and diligence– Personal affairs– Extra-judicial activities– Political activities

Examples of ethical thin ice:

– Campaign contributions from attorneys– Assigning indigent cases to one’s friends

JUDICIAL DISCRETION

Occurs in two major areas:

• Interpretation of the law

• Sentencing

Interpretation of the law includes:

• Ruling on admissibility of evidence

• Ruling on objections during trial

• Writing critical jury instructions

JUDICIAL DISCRETION

Interpretation of the law may necessitate invoking the exclusionary rule.

A fair society cannot accept a conviction based on tainted evidence

Thus, illegally obtained evidence cannot be used (is excluded) at trial

This serves to discourage police from breaking the law in a misguided effort to enforce the law

Some exceptions are allowed, including:

– Public safety– Good faith– Inevitable discovery

JUDICIAL DISCRETION

Sentencing raises unique ethical issues

Is there a single acceptable punishment for a certain type of offense or offender?

Does justice depend on community opinion of the crime, the criminal, and the proposed punishment?

Sentencing inconsistencies occur between individual judges in the same community

Mandatory sentences, published as Sentencing Guidelines, require the judge to impose a specific sentence unless there is a proven mitigating or aggravating factor in the case

JUDICIAL MISCONDUCT

Judicial misconduct is rare, but does occur

Neutrality is questioned when judges voice strong opinions on issues or cases

A judge may recuse him/herself if he/she has a vested interest in the issue or one of the parties involved

Often the mere appearance of impropriety is sufficient to warrant recusal

Lack of courtroom decorum could, in extreme cases, represent judicial misconduct

JUSTICE ON TRIAL?

False convictions have occurred due to:

• Eyewitness perjury

• Ineffective counsel

• False confessions

• Police misconduct

• Fabrication of evidence

• Misuse of forensics

• Racial bias

JUSTICE ON TRIAL?

Examples of ineffective counsel in capital cases:

• Attorney use of heroin and cocaine during trial

• Attorney letting defendant wear the same clothes described by victim

• Attorney admitting that he didn't know the applicable law or the facts of the case

• Attorney not being able to cite a single death penalty case holding

• Attorney drinking heavily each day of the trial

JUSTICE ON TRIAL?

Eyewitness testimony remains problematic

Most experts regard eyewitness testimony as subjective and unreliable

Despite widespread mistrust of eyewitness testimony, the judicial system continues to place tremendous reliance on it

JUSTICE ON TRIAL?

Although not common, errors do occur, resulting in the conviction of innocent defendants

This does not necessarily suggest that the system is fundamentally flawed

Judicial oversight during trial prevents most errors

Elaborate appellate mechanisms exist in all states and the federal system to rectify identified errors

INNOCENCE PROJECTS

Innocence projects are recent movements to reexamine cases where there is a possibility that serious errors may have occurred

Funded by private individuals and groups

Some argue that a governmental agency, rather than volunteer or private organizations, is needed

Great Britain's Criminal Cases Review Commission is an existing model

JUDICIAL INDEPENDENCE and the CONSTITUTION

Judges wield great discretion, and usually exercise it fairly and ethically

Judges are sometimes driven by extremist positions such as blatant racism or sexism

The system provides for appellate review and even impeachment to counter extreme or recurring malfeasance

Like the rest of us, judges are grounded in their personal ethical belief system

Well-intentioned individuals may, and often do, disagree concerning specific application of ethical principles

JUDICIAL INDEPENDENCE and the CONSTITUTION

An independent judiciary is a fundamental tenant of the American governmental system

But judges are not completely independent, as they must either stand for election or be appointed (or reappointed) by the jurisdictional executive

Conservative judges—strict constructionists—support individual rights specified in the Constitution or created by some other recognized legal source

Generally, conservative judges believe judges should limit their role to interpreting the law rather than using their position to “make” law

JUDICIAL INDEPENDENCE and the CONSTITUTION

Liberal judges—interpretationists—support rights that the Framers might have recognized or that should be recognized due to "evolving standards"

Generally, liberal judges believe judges should use their position to expand their interpretation of the law into a reasonable application beyond the exact language used

THE UNITED STATES SUPREME COURT

The Court’s immense power makes it politically crucial for both conservatives and liberals to try to exert control over it

The current Court tends toward moderation, with many decisions resulting from five-to-four votes, thus making every vote critical to both political perspectives

Every vacancy results in fierce political battles over the candidates

Historically, the assumption that certain justices will vote a specific way on specific issues is inaccurate

Justices are guided by common-law doctrine, the Constitution, and their individual ethical orientation, in addition to political considerations