In the recent spate of philosophers' writing on legal ethics, most contend that lawyers' professional role exposes them to great risk of moral wrongdoing; and some even conclude that the role's demands inevitably corrupt lawyers' characters. In assessing their arguments, I take up three questions: (1) whether philosophers' training and experience give them authority to scold lawyers; (2) whether anything substantive has emerged in the scolding that lawyers are morally bound to take to heart; and (3) (...) whether lawyers ought to defer to philosophers' claims about moral principle. I return a negative answer to each. (shrink)
Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legal ethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legal ethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers. This (...) article suggests that the problem with both the professional rules and the extant accounts of legal ethics is that they treat the role of lawyer as largely uniform, whereas lawyers actually serve several importantly different roles in different contexts. The central insight of the article is that legal ethics must be fundamentally context-sensitive: what lawyers are morally permitted or required to do depends on the background context in which they are working. Additionally, by taking context into account, this article is the first to present a theory of legal ethics as appropriately shaped and constrained by normative political philosophy and norms of political legitimacy. -/- Specifically, the article argues that people act as lawyers in three different contexts: State v. Individual (situations in which the State seeks to apply some general law to a particular individual), Individual v. Individual (situations in which private individuals are engaged in a dispute), and Individual v. State (situations in which individuals object to State conduct on constitutional or other grounds unrelated to the question of whether a general law applies to their particular case); that the value of lawyers, qua lawyers, stems from a different source in each of these contexts; and that a theory of legal ethics must take into account both of these first two claims. This article develops one such theory - the Multi-Context View. To demonstrate how the theory applies in practice, the article applies the Multi-Context View to two significant issues in legal ethics: the ethical issues involved in deciding whether to represent a client and the moral permissibility of the use of tactical delay. (shrink)
This article explores the psychological literature on rationalization and connects it with contemporary questions about the role of in-house lawyers in ethical dilemmas. Using the case study of AWB Ltd, the exclusive marketer of Australian wheat exports overseas, it suggests that rationalizations were influential in the perpetuation by in-house lawyers of AWB's payment of kickbacks to the Iraqi regime. The article explores how lawyers' professional rationalizations can work together with commercial imperatives to prevent in-house lawyers from (...) seeing ethical issues as those outside the organisation would see them. In particular, where lawyers over-identify with their client's commercial point of view and convince themselves that their role is primarily about providing 'technical' advice on commercial matters, wilful or unintended 'ethical blindness' can result. Lawyers can end up involved in or perpetuating serious misconduct by their client organizations. (shrink)
Me d i a lawyers were surveyed about their perceptions of journalism ethics, whether they discussed journalism ethics with their media clients, and whether they believed such nonlegal counseling were appropriate. The study found that most media lawyers do contribute to ethical decision making i n news organizations and believe the practice appropriate. It concludes that, as a result, indust y and academic proponents of journalistic ethics should target not only journalists but also media lawyers in their (...) attempts to foster ethical decision making and public support for the news media. (shrink)
Governance and discipline of the legal profession is a highly topical issue in the New Zealand and has been the subject of recent reform, with a move to a more co-regulatory structure. An explanation of that context follows, together with an overview of how the Disciplinary Tribunal under the Law Practitioners Act 1982 and its successor under the Lawyers and Conveyancers Act 2006 approach strike-off or suspension as the penalty in what would currently be termed 'misconduct' cases. Case studies (...) and comparisons of the responses under the prior and current regimes are included. Finally some conclusions are drawn about whether the sanctioning of lawyer deviance is changing. (shrink)
Descriptions of the relationship between lawyers and journalists range from 'uneasy' and 'sometimes prickly' to 'strained and often combatant.' This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of (...) both lawyers and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles which guide lawyers' interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist's lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public. (shrink)
Company directors and executives seek legal advice outside the company on a regular basis. This advice is meant to be given within the context of the lawyers’ professional obligations and ethical practise. What clients may not appreciate is there is often a conflict of interest between the lawyers’ professional and ethical concerns and the legal advice business. If lawyers follow their business interests, their advice may be incomplete especially in relation to the ethical consequences of that advice. (...) This could lead to a compromise of the clients’ commercial interests and even raise doubts in relation to the legality of the clients’ proposed course of action. (shrink)
In Australia, since 2004, there has been a move to expand the range of models for legal practice. Lawyers may now incorporate a legal practice, which may have non-legal directors and shareholders. They may also enter into a partnership with a range of non-legal professional partners. This change is happening at the same time that legal practice culture is moving from a professional service model to a business-oriented model. Increased pressures have been thrown into the mix by the global (...) financial crisis and the downturn in the legal market. Inevitably, these changes have created new conflict problems. When a lawyer is responsible to both clients and shareholders, how can that conflict be resolved? What are the roles of non-legal directors or partners? What if they have ethical or legal duties which conflict with a lawyer?s duty to a client? When a corporate legal business is listed on the stock exchange, what pressure may that bring to bear on the business model of the legal practice? How can all of these issues be resolved in grim financial times? The author will examine all of these issues in light of Australian and international experiences with new lawyering patterns and the global financial crisis. (shrink)
This report proposes a method of making progress in developing the ethics project in legal education. It presents the findings of research into how ethics is currently taught in a number of different jurisdictions and then considers ways in which an effective community of practice might be developed. This involves establishing effective methods of dissemination and collaboration amongst all those interested in developing ethical legal professionals. The report explores ways of using Web 2.0 technologies to achieve these goals. Finally, it (...) presents a new website designed to enable educators, practitioners, regulators and judges to contribute to a developing resource bank and to engage in collaboration and discussion in improving our efforts at developing ethical lawyers. (shrink)
There is a growing trend in Australia to require lawyers to certify reasonable prospects of success for the cases they bring and defend. New South Wales has led the way with the Legal Profession Act 2004 (NSW) Pt 3.2 Division 10 requiring legal practitioners to certify reasonable prospects of success in all claims for damages. The requirement places a significant onus on lawyers to make a judgment about the merits of a case before it is begun, yet the (...) common law has long provided mechanisms to ensure that cases without prospects of success do not go to trial. This article considers Australian legislative provisions requiring lawyers to certify reasonable prospects of success of cases. It examines the application of the NSW legislation by the courts highlighting the difficulties of interpretation of what constitute 'reasonable prospects of success' and the application of the legislation in the context of the dynamic litigation process. It is argued that these legislated obligations on lawyers will have a detrimental effect on access to justice by denying parties, in particular plaintiffs, the opportunity to have their cases properly and fully determined in the courts. This article examines common law mechanisms for dissuading cases without prospects and argues that the general law is an effective system for ensuring that cases without prospects of success are not maintained. The Australian experience is instructive for consideration of optimal reform packages for the administration of justice and to evaluate the role of any litigation lawyer within the judicial and court process. (shrink)
On 1 August 2008 the Lawyers and Conveyancers Act 2006 came into force. It provides the terms of the current regulatory bargain struck between the state and the New Zealand legal profession. Barely 16 months later the profession was served notice that the basis of that bargain might radically change. To an academic lawyer with a practising certificate, this is both a tantalising research opportunity as well as a professionally unsettling prospect. Part 1 of this paper explores the current (...) regime of co-regulation in New Zealand, barely bedded down after substantial reform. Part 2 suggests some potential case studies where such failure to exhibit integrity is egregious and traverses the impediments to researching why such lawyers fail. Part 3 asks whether a wholesale change to external regulation would better advance competency and integrity and reduce lawyer deviancy. (shrink)
Many suggest that professionalism as traditionally understood is all but dead in today's legal marketplace. Some scholars believe that 'professional' orientations based on managerialism and influenced by profitability have seen the demise of the lawyer's traditional professional identity. This paper argues otherwise. A pilot qualitative study of new Australian lawyers indicates that professional ideals can still flourish. Participants both understood the traditional ideals and sought to incorporate them in their own developing sense of professionalism. This paper reviews the experiences (...) of 11 early-career Australian lawyers in their first year of practice. Preliminary results suggest that certain experiences are crucial to developing and retaining a broad sense of professionalism: finding a balance between autonomous/independent work and close mentoring and supervision; realizing that legal practice is not merely a rational and rule-based activity, but one that involves ongoing uncertainty, including the uncertainly of dealing with 'real' people displaying 'real' emotions; and reaching a comfortable 'value convergence' between one's own values and those modelled by colleagues. (shrink)
Lawyers' ethics have been condemned for centuries, but they received little scholarly scrutiny until the last few decades. Ethics in Practice brings together leading experts in the emerging field of legal ethics to discuss the central dilemmas of practicing law. This collection cuts across conventional disciplinary boundaries to address the roles, responsibilities, and regulation of contemporary lawyers. Contributors address common concerns from diverse perspectives, including philosophy, psychology, economics, political science, and organizational behavior. Topics include the nature of professions, (...) the structure of practice, the constraints of an adversarial system, the attorney-client relationship, the practical value of moral theory, the role of race and gender, and the public service responsibilities of lawyers and law students. Unique in both its breadth and its depth, this book redefines debates that are of enduring significance for both the profession and the public. (shrink)
From the turn of the century, jurists have tended to associate lawyers with doctors as professionals and tried to ground this association in an analogy between law and medicine. Paradoxically, such comparisons suggest that American law and medicine are not analogous, while an analogy proposed by Plato illumines more fundamental respects in which law and medicine might be truly analogous.
For more than a decade, American lawyers have bewailed the ethical crisis in their profession, wringing their hands about its bad image. But their response has been limited to spending money on public relations, mandating education, and endlessly revising ethical rules. In this book, Richard Abel will argue that these measures will do little or nothing to solve the problems illustrated by the six disciplinary case studies featured in this book unless the legal monopoly enjoyed by attorneys in the (...) U.S. is drastically contracted. -/- Richard Abel examines some of the most common ethical complaints made about lawyers in Lawyers in the Dock. Using detailed records of disciplinary proceedings, he describes the actions surrounding certain cases based on three of the most common complaints: neglecting the client by failing to pursue cases diligently; overcharging of clients by mystifying billing practices; and betraying adversaries and courts out of excessive loyalty to clients or causes. -/- In this book, Richard Abel will argue that these measures will do little or nothing to solve the problems exposed by his six disciplinary case studies unless structural changes are made to the legal monopoly in order to restore the public trust in lawyers. Lawyers in the Dock is essential reading for lawyers, law students, and potential clients who wish to restore trust and professional responsibility in the legal profession. (shrink)
Lawyer misbehaviour occurs in every country and regulators often struggle to address it effectively. This article looks at six case studies of disciplined lawyers in Australia, Canada, the Netherlands, New Zealand and the United Kingdom. It notes the similarities in the cases and to disciplined lawyers previously described in case studies in the United States. In particular, these case studies involved male lawyers predominantly working in solo or small firms who were insufficiently exposed to positive professional values (...) early in practice. They were willing to lie to achieve their goals and were motivated, at least in part, by money. The article considers how the love of money, the behavioural disposition known as Machiavellianism, and the need to maintain self-esteem may have affected the lawyers' conduct. It also discusses the need to deal more effectively with recidivists, like the lawyers in these case studies, and identifies some possible regulatory responses to recidivism. (shrink)
Citing the Lincoln Savings and Loan scandal, the Leo Frank murder trial, and other cases, author William Simon takes a fresh look at the ethics of lawyering.
Justice is an important concept in philosophy since ancient times and a key phenomenon in human life (in societies). First a judge at a court, two sides, their witnesses, Lawyer-A and Lawyer-B are considered in this quasi-essay inquiry. Then pointed out that, which lawyer better develops his/her arguments, his/her side will be advantageous. Reality conceals on the one side, truth (and rightness) stands on the other. However this will be risky in social life; it may be understood by an ordinary (...) man (or someone who doesn’t have a proper philosophical insight) as “who - obeying the rules- better diverts reality and shows that (s)he is right, his/her side wins.” Not only knowledge, but also philosophy itself loses prestige in such a tableau. Stemming from ‘Gettier-pictures,’ a “murderingevent” is presented thereafter. By help of pseudo-philosophers Prof. Truth, Prof. Reality and E.G. (“eyeglasser”) some perspectives related to “knowledge” and “knowing” are discussed while trying to analyze the mentioned event. At the end, (reflecting in the place of me) E.G. states some features (which are important for him) concerning knowledge. In this paper, ‘subject-dependency’ and internalizability (or better, interiorizability) of knowledge will be traced somehow; in addition to a search towards ‘relevant’, ‘valuable’, ‘illicit’, and ‘proper’ kinds. (shrink)
Peer review and publication is one of the factors proposed in Daubert v. Merrell Dow Pharmaceuticals, Inc. as indicia of the reliability of scientific testimony. This Article traces the origins of the peer-review system, the process by which it became standard at scientific and medical journals, and the many roles it now plays. Additionally, the Author articulates the epistemological rationale for pre-publication peer-review and the inherent limitations of the system as a scientific quality-control mechanism. The Article explores recent changes in (...) science, in scientific publishing, and in the academy that have put the system under strain. The Author argues that Justice Blackmun's advice to courts - that peer-reviewed publication is relevant, but is not dispositive - is of little practical help. Instead, the Author suggests questions that courts should ask in assessing the significance of the fact that testimony is, or is not, based on peer-reviewed publication and illustrates with reference to another Bendectin case, Blum v. Merrell Dow Pharmaceuticals, Inc., where some of these questions were asked. (shrink)
Applied ethics is sometimes understood on the engineering model: As engineers apply physics to human problems, so philosophers apply ethics to dilemmas of professional practice. It is argued that there is nothing in ethics comparable to physics. Using legal ethics as an example, it is suggested that political philosophy provides a better approach to understanding professional ethics. If, for example, the adversary system is a legitimate social institution, and if attorneys must adhere to certain principles in order for that institution (...) to fulfill its purposes, then attorneys may be said to be subject to those ethical principles. (shrink)
However, as in other disciplines, academic recognition can in turn entrench static and powerful meta-theories and narratives about professional ethos and ...
This Article examines the genesis and evolution of the Restatements of Property. The author argues that, while the Restatement (First) of Property took as its original purpose to restate the law, in the course of its creation it was turned to reform. Subsequent Restatements of Property are dedicated almost wholly to reform. The author concludes that this shift in objectives has sparked criticism and rendered these works of less value and interest to the legislatures, bench and the bar, which have (...) largely ignored the property Restatements. (shrink)
I. I. I. Gordon (2009). Lawyers and the Rule of Law. In Scott W. Cameron, Galen L. Fletcher & Jane H. Wise (eds.), Life in the Law: Service & Integrity. J. Reuben Clark Law Society, Brigham Young University Law School.score: 9.0
Sandra Day O'Connor (2009). On Being Ethical Lawyers. In Scott W. Cameron, Galen L. Fletcher & Jane H. Wise (eds.), Life in the Law: Service & Integrity. J. Reuben Clark Law Society, Brigham Young University Law School.score: 9.0
Two fundamental paradigms are in conflict. Expert systems are the creation of the artificial intelligence paradigm which presumes that an objective reality can be understood and controlled by an individual expert intelligence that can be replaced by machinery. The alternative paradigm assumes that reality is the subjective product of human beings striving to collaborate through shared norms and experiences, a process that can be assisted by but never replaced by computers. The first paradigm is appropriate in the domains of natural (...) science and mathematics but dangerous in social sciencet business and, especially, the law. Expert systems are constructed on the basis of a number of metaphysical assumptions that are invalid in the legal domain. These assumptions are assimilated through a number ofcommonplace metaphors that guide the thoughts of the majority of people entering the computing field who are usually trained in first paradigm subjects such as mathematics and the natural science. This inappropriate paradigm hinders our progress in the field of computers and law. We need to adopt a socially orientated view of tbe nature of reality, of language, of meaning, of intelligence, and of reasoning. It will be easier then to build computer systems to facilitate social interactions in the legal domain and easier to understand why boxes that try to imitate legal expertise are intrinsically fraudulent. (shrink)
Steven Keeva's "Transforming Practices" Is Changing Lives "Every lawyer and law student in America [should] read this book, study it, savor it, and make it a ...
Contextualism answers skepticism by proposing a variable standard of justification, keyed to the context of utterance. A lawyer's situation with respect to a criminal defendant's factual guilt is a special one. The argument here is that in this special context an especially high standard of epistemic justification applies. The standard is even more exacting than the proof-beyond-reasonable-doubt standard that juries are sworn to follow. The upshot is that criminal defense lawyers normally cannot know that a client is factually guilt.
... abolished in 1869, but which we here learn still forms a deplorable factor in the social life of the poor in England, especially in breaking up homes. ...
Since 1985, I have divided my professional life between teaching philosophy and practicing law in Northampton, Massachusetts. I am part of two excellent professional communities, the faculty of Smith College and the Hampshire County Bar. Making allowance for the usual sources of adult unhappiness--one gets divorced, has a drug or alcohol or gambling problem, a debilitating disease or injury, a child in jail, etc.-! -, we Northampton lawyers seem generally to be a happy lot. We are public-spirited, appearing disproportionately (...) on the boards of local nonprofit corporations. I know of no local polls on the question but our fellow townspeople appear to hold us in good esteem. We get on well with one another-- perhaps rather better than do my academic colleagues. Our chief source of professional anxiety is attracting remunerative employment in a highly competitive labor market. Still, virtually everyone seems to make at least a passable living and some obviously prosper. Very few of us have burned out and left practice. When we talk shop we often complain about particular judges, our clients and occasionally other lawyers, but never about the value of our profession. We do not often indulge in abstract speculation. (My lawyer friends take no interest at all in my writings on jurisprudence.) But our demeanors do not bespeak inchoate unhappiness with our professional lives. We are evidently pro! ud of what we do. (shrink)
This paper tests Harry Arthur's theory that there is an “ethical economy“ of lawyer regulation in Canada, in which Canadian law societies use their regulatory powers only in high reward/low risk cases - ie, where the practitioner is less likely to resist their authority and the offence is morally unambiguous. Analysing reported cases from 2009 in British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia the paper concludes that Arthurs' description still accurately characterises the regulation of lawyers by Canadian law (...) societies. The paper then conducts a case study of law society and court cases related to one Canadian lawyer, Anthony Merchant, to assess whether the ethical economy is inevitable, or whether a different approach to lawyer regulation can and should be undertaken. (shrink)
Comparative case studies of lawyer deviance and discipline offer a unique perspective on how and why lawyers misbehave, how regulatory bodies respond, and the efficacy of those responses. Such studies also provide valuable pedagogic tools, opening the eyes of law students to the ways in which they, too, could transgress ethical rules. This special issue builds on my two books on misbehaving lawyers in New York and California by presenting vivid accounts of such lawyers in the UK, (...) Canada, Australia, New Zealand, and the Netherlands. (shrink)
