Legal Ethics

I argue that it is morally wrong for a lawyer to pursue a legal outcome that he knows to be unjust, such as the acquittal of a guilty client or the triumph of the wrong side in a lawsuit.

This is a case that should go to the European Court of Human Rights. A decent, senior qualified family doctor was accused by his mentally ill daughter of sex abuse. Without real evidence except for what the girl told another mentally ill patient at a psychiatric hospital she stayed at for several years, and wit just two witnesses, one a younger child wo saw none of the accused offences, and the other parent, struck off the General Medical Council Register for (...) drunk driving more than once, the case was fitted up by those who are rampantly seeking to raise statistical numbers for child sex abuse offences by high level persons- a bizarre situation and a travesty against tis family doctor's human rights, because a judge can use his 'discretion' to send a much needed family doctor to 18 years in jail. The International Community should scrutinize the United Kingdom's Criminal Justice System. (shrink)

The trial took place at Bristol Crown Court, England, United Kingdom for the murder of Joanna Yeates, and Dr Vincent Tabak was the Defendant. The author attended at court for this trial and this paper notes many of the obvious and unsatisfactory legal and procedural points in this trial. Dr Vincent Tabak was convicted of the murder at this trial. Of course the jury were not to know the finer points of law as the lower court judge did not advise (...) the jury of any such points before they adjourned to make their decision. All but one concluded that Dr Tabak was guilty as charged, although even the charge was vague and all-encompassing as he was charged with ‘murder between Friday 17 December 2010 and Sunday 19 December 2010’. Defence counsel, very eminent barrister-at-law, appeared to be cowed by the other side and let them walk all over this case procedurally. For example, prosecution counsel handed him 1200 pages of evidence on the first day of the trial, as if to FULFIL disclosure obligations. E was stunned and asked the court for time off. But this was never again discussed. -/- The lower court judge appeared as if he had already decided on the case. When Defence Counsel asked him if he had before him a copy of a certain document, he flippantly say he had it but had left it on his desk in his room. When Defence Counsel, of international renown, was ready to present his opening speech and cross-examination of his client, Dr Vincent Tabak, this lower court judge dismissed the jury to their lunch break knowing that counsel was going to speak. Court had to be adjourned and the members of the jury quickly assembles by the court porters as they were leaving the court, which must have hampered their interest in what counsel’s statement said. A photograph of a dead body by a roadside, allegedly, Miss Yeates, was shown by projector slide a dozen irrelevant times during the trial period, thus embedding that photograph in the jury’s mind. The computer evidence leaves much to be desired and could, some suggested, easily have been concocted by the prosecution team, abusing the law of metadata evidence. Te lady who presented it did not give the court her qualifications and her expertise if any- and much more that beggars belief and loses trust in the British Criminal Justice System, such as it is, following ‘form over substance’. -/- . (shrink)

of (from British Columbia Philosophy Graduate Conference) In moral reasoning, we sometimes encounter situations where what our ethical principles tell us to do and what we actually do conflict. In legal ethics, such anomalies arise for lawyers in defending a client who commits perjury. Wallace argues that such lawyers have not mastered the practice of truth-telling, and thus suffer from some sort of moral deficiency. However, due to the complexities of legal practice, particularly the value of truth and evidence, lawyers (...) must learn to accommodate cases of perjury into their moral taxonomies, and this is not a simple feat. In addition, I examine the ethics of lying in everyday life, such as in cases of protecting reputation or feelings. As such, I posit that Wallace is oversimplifying the situation and individuals in “perjured client” cases actually have a better and more realistic grasp on the exercise of practical ethics than he claims. (shrink)

One’s constitution—whether one is generous or miserly, temperate or intemperate, kind or mean, etc.—is beyond one’s control in significant respects. Yet one’s constitution affects how one acts. And how one acts affects one’s moral standing. The counterintuitive inference—the so-called problem of constitutive moral luck—is that one’s moral standing is, to some significant extent, beyond one’s control. This article grants the premises but resists the inference. It argues that one’s constitution should have no net impact on one’s moral standing. While a (...) bad constitution lowers the chance that one will act morally, it offers significant gains to moral standing should that chance materialize. A good constitution increases one’s chance of performing good acts but for correspondingly more modest gains. This effect should smooth out, and possibly eliminate, the expected impact of constitution on moral standing. (shrink)

We address the ethics of scenarios in which one party (the ‘agent’) entraps, intentionally tempts, or intentionally tests the virtue of another (the ‘target’). We classify, in a new manner, three distinct types of acts that are of concern, namely acts of entrapment, of (mere) intentional temptation and of (mere) virtue testing. Our classification is, for each kind of scenario, of itself neutral concerning the question whether the agent acts permissibly (and concerning the extent to which the target is culpable). (...) We explain why acts of entrapment are more ethically objectionable than like acts of (mere) intentional temptation and why these, in turn, are more ethically objectionable than like acts of (mere) virtue testing. Along the way, we scrutinize, and eventually reject, the view that acts of entrapment are ethically unacceptable because intentional temptation is involved in entrapment. (The article touches upon, but is not about, the question of culpability.). (shrink)

Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...) that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes. (shrink)

The War on Cops is a collection of previously-published essays by Heather Mac Donald, a public intellectual in the United States who belongs to the ‘small faction’ of secular conservatives (Mark Oppenheimer, “A Place on the Right for a Few Godless Conservatives”, New York Times, February 18, 2011). The essays are journalistic rather than academic, having appeared in the City Journal, National Review, New York Daily News, InsideSources, Wall Street Journal, and Weekly Standard, but the volume is nonetheless significant to (...) contemporary philosophers due to both its form and content. First, Mac Donald presents a logical argument for her position and makes explicit use of philosophical devices such as thought experiments. Second, this argument concerns the controversy surrounding the killing of African American males by police officers in the last three years and she provides the first sustained criticism of the rationale for the Black Lives Matter movement. (shrink)

The appropriate adult safeguard is an important procedural safeguard that can be implemented to protect vulnerable suspects at the police investigative stage of the criminal process. The safeguard is available for young suspects and adult suspects who are defined as vulnerable, and can be performed by a vast array of individuals. It is intended to protect evidence, enable effective participation and avoid miscarriages of justice. However, the safeguard lacks an underpinning conceptual framework; it is, and can, be interpreted in multiple (...) ways, thus undermining its efficacy. Drawing upon doctrinal and socio-legal analysis, this article examines how the safeguard is—and, crucially, can be—conceptualised. It is argued that, although it is used principally as an evidential safeguard, the appropriate adult could be reimagined through the United Nations Conventions on the Rights of Persons with Disabilities and the United Nations Conventions on the Rights of the Child, with a specific focus on allowing for effective participation of the vulnerable suspect. (shrink)

For as long as knowledge asymmetry continues to be deemed the defining characteristic of the lay-professional relationship, the courts’ delineation of obligations meant to address lay vulnerability will too frequently end up compounding the layperson’s non-epistemic, ‘sense of self’ vulnerability. The proposed re-conceptualisation of professional responsibility calls for reform on several fronts: among these, an expanded ‘duty to consult’ is uniquely placed as a justiciable criterion capable of addressing such a situational, ‘sense of self’ vulnerability.

Mark Greenberg argues that legal obligations are those moral obligations created by the actions of legal institutions in the legally proper way. Here I defend three main claims. First, I argue that, although very often misunderstood, Joseph Raz is also a defender of MITL. Secondly, I argue that while both Greenberg and Raz are committed to MITL, they disagree about the conditions under which a moral obligation can be said to be created in the legally proper way. Finally, I argue (...) that Raz’s variant of MITL is better than Greenberg’s. It rests on a more plausible account of authority and it avoids one of the crucial defects threatening Greenberg’s view, namely, its overinclusiveness. (shrink)

The article advances an anti-foundationalist account of the key doctrines of the European Court of Human Rights : the margin of appreciation and European consensus. The first part of the article argues that anti-foundationalism, which understands the existence of human rights as ultimately dependent on social practices and their justification as based on a plurality of values, is a credible conception of human rights grounds. The second part contends that anti-foundationalism offers the best explanation of the MoA and EuC, without (...) making the ECtHR’s practice less normatively appealing. These arguments challenge the dominant critiques of the MoA and EuC, which often assume, but rarely explicitly defend, a foundationalist understanding of human rights. While the ECtHR’s use of the MoA and EuC can be inadequate, this is not because it is mistaken about the grounds of human rights. (shrink)

Many states governed by the rule of law provide for mercy powers, most prominently the power to grant pardons. This raises a potential conflict: the rule of law requires that like cases be treated alike. Mercy, on the other hand, is usually understood as being unfettered by legal principles, including the principle of treating like cases alike. Focusing on state officials’ pardon powers as an example of mercy, this article argues that we should conceive of pardons as miracles. Like miracles (...) which suspend individual laws of nature, pardons suspend legal rules on an individual and discretionary basis. Once suspended, the legal rules no longer apply to the given case, and consequently there is no conflict between pardons and the rule of law. As I will show, this discretionary suspension of legal rules is a prerequisite for pardons to fulfil their function as a corrective to undesirable legal results. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

A short story about the pitfals of a new law, the General Act for the Dismantling of Normalising Power and Structures of Privilege, and, more philosophically, about the problems of institutionalizing progressive politics through law. Published in The Cabinat of Imaginary Laws, by Peter Goodrich and Thanos Zartaloudis: Returning to the map of the island of utopia, this book provides a contemporary, inventive, addition to the long history of legal fictions and juristic phantasms. Aimed at an intellectual audience disgruntled with (...) the negativity of critique and the narrowness of the disciplines, this book will appeal especially to theorists, literati, lawyers, scholars and a general public concerned with the future of decaying laws and an increasingly derelict legal system. (shrink)

This study constitutes an ethical analysis through the lens of distributive justice in the case of the Troubled Asset Relief Program (TARP), which was enacted in the midst of the Great Recession of 2007–2009. It begins by engaging with the visions of justice constructed by John Rawls and Robert Nozick, using their insights to locate the injustices of TARP according to their moral imaginations. However, this study argues that Rawls’ and Nozick’s theories of justice primarily envision the nature of law (...) as being restrictive of vice, not as instructors of virtue. Thus, it resources the legal philosophy of St. Thomas Aquinas to demonstrate how the positive pedagogy of law can enable a more just construction of economic rescue legislation, one that not only prevents future repetitions of economic vices and injustice, but is also formative for a society that prizes economic justice and virtues. In doing so, the study proposes two criteria for a more just consideration of economic rescue legislation that embraces law’s positive pedagogy. (shrink)

In 2020, after the first Covid-19 lockdown, several countries implemented a policy of contact tracing and self-isolating for individuals who crossed borders or came into contact with infected people. To enforce these restrictions, some states imposed very harsh monetary penalties for people who violated them. Behind these harsh fines lies an instrumental rationale. They allow the state to avoid implementing a system of labor-intensive and costly surveillance and enforcement. In this article I argue that such severe penalties are extremely unjust. (...) In order not to expose citizens to the risk of being excessively fined, governmental institutions should instead intensify controls. I argue that they owe it to their citizens to increase the surveillance of compliance with self-isolation obligations. (shrink)

The elements of the tort of negligence are well known: injury, duty, breach, and actual and proximate cause. It is uncontroversial that the plaintiff must establish each of these elements to make out the prima facie case of negligence. Accordingly, there is no tort unless all of these elements are established. As torts are understood to be wrongs, it seems to follow that there is a wrong if and only if all of the elements of the tort of negligence are (...) satisfied. It seems to follow, then, that the wrong of negligence is constituted by the completed tort of negligence. This is the conclusion that I wish to challenge here. I shall contend that the wrong of negligence does not require the kind of legally cognisable injury that the tort of negligence plainly requires. Causing a material harm to another is not a prerequisite for wronging them. Instead, one wrongs another when one breaches the duty of care that one owes to them. (shrink)

Many studies have shown that marijuana can negatively affect the cognitive development of adolescents. For some individuals, marijuana use may also initiate opioid use, dose escalation, and opioid use disorder. States that legalize marijuana should help adolescents through regulation of advertising and availability of marijuana-infused edibles. Such policies may assist in protecting neurodevelopment of the adolescent and young adult brain. The federal government should also remove its prohibition of marijuana sales and use, leaving their regulation to state law-makers.

This paper examines the lawsuits brought by state and local government entities against prescription opioid producers and sellers. It examines their potential liability as well as some of the defenses they might raise. The paper also discusses multidistrict litigation and government lawsuits in state court. It concludes that litigation is not the best solution to the opioid crisis.

The proposed paper presents an argument in favor of a Rawlsian approach to ethics for Internet technology companies (den Hoven & Rooksby, 2008; Hoffman, 2017). Ethics statements from such companies are analyzed and shown to be utilitarian and teleological in nature, and therefore in opposition to Rawls’ theories of justice and fairness. The statements are also shown to have traits in common with Confucian virtue ethics (Ames, 2011; Nylan, 2008).

In the original publication of the article, the paragraph beginning “We begin with two steps or lawyers…” should read as “We begin with two steps or layers privileging jurisdictio as potestas.

This article analyses teaching reflection skills as a means to inculcate students’ capacity to contribute to justice. Arising out of understandings of professionalism, the rule of law, as well as m...

There is currently a debate about resilience and wellbeing of law students and legal practitioners. Tension has developed between a movement promoting the wellbeing of students and those who critic...

In this article we explain the specific contribution of Bar exams to the professional socialisation of Brazilian lawyer leaders through examining their changing content, particularly the coverage o...

Overdose deaths involving prescription opioids killed more than 17,000 Americans in 2017, marking a five-fold increase since 1999. High prescribing rates of opioid analgesics have been a substantial contributor to prescription opioid misuse, dependence, overdose and heroin use. There was recognition approximately ten years ago that opioid prescribing patterns were contributing to this startling increase in negative opioid-related outcomes, and federal actions, including Medicare reimbursement reform and regulatory actions, were initiated to restrict opioid prescribing. The current manuscript is a description (...) of those actions, the effect of those actions on opioid prescribing and related patient outcomes. We also describe our proposal of methods of expanding these efforts as an important piece to further reduce opioid-related misuse, dependence, and overdose death. (shrink)

In a survey on research misconduct, roughly 20% of the respondents admitted that they have submitted federal grant proposals that include scholars as research participants even though those scholars were not expected to contribute to the research effort. This manuscript argues that adding such false investigators is illegal, violating multiple federal statutes including the False Statements Act, the False Claims Act, and False, Fictitious, or Fraudulent Claims. Moreover, it is not only the offending academics and the false investigators that face (...) civil and criminal penalties because administrators may also be liable if they sign off on proposals and are in a position to know that false investigators might be included. Policy recommendations that should reduce the use of false investigators include changing institutional cultures, better training and oversight of the responsible conduct of research, and, most importantly, making all grant reviews double blind. (shrink)

: How, if at all, do motives matter to loyalty? We have argued that loyalty has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument depends on a flawed understanding of the significance of motive to loyalty. We defend a view of the importance of motivation to loyalty that we call the compatibility (...) account. On this view, A acts loyally toward B only if A’s motives are compatible with A’s robustly assigning non-derivative significance to the interests of B. We show that the compatibility account describes the motivational structure of fiduciary loyalty and of loyalty as such. This account provides a realistic picture of motivation and helps respond to two broader criticisms of cognitivism: first, that attributing significance to motivation is paradoxical; second, that attributing significance to motive would make fiduciary law impossible to administer. We also show that the compatibility account can help explain features of ineffective assistance of counsel jurisprudence under the Sixth Amendment to the U.S. Constitution, which draws on the lawyer’s duty of loyalty toward the client. (shrink)

Active shooter incidents have unfortunately become a common occurrence the world over. There is no country, city, or venue that is safe from these tragedies, and healthcare institutions are no exception. Healthcare facilities have been the targets of active shooters over the last several decades, with increasing incidents occurring over the last decade. People who work in healthcare have a professional and moral obligation to help patients. As concerns about the possibility of such incidents increase, how should healthcare institutions and (...) healthcare professionals understand their responsibilities in preparation for and during ASI? (shrink)

: In the abstract, the limits on a lawyer’s loyalty obligations could take several forms. For example, constraints on a fiduciary’s loyalty obligations may be derived from a correct understanding of that fiduciary’s loyalty itself. Indeed, violations might count as a form of disloyalty to the client. Alternatively, such constraints could stem from obligations owed to parties other than a lawyer’s client, or even something more abstract like the rule of law. Notably, such constraints could be derived from legal principles (...) that have nothing to do with fiduciary law. Each of these options is a conceptual possibility, contingent on the choices made by a given legal system. Constraints on a loyalty obligation that are implications of that loyalty obligation itself are defined here as internal. Constraints imposed from outside a given fiduciary loyalty obligation are defined as external. This paper seeks to deepen our understanding of a particular type of fiduciary loyalty by focusing on the role of such internal constraints, and in the process to elaborate on the scope of loyalty obligations more generally. This paper will also indicate why we should care about the internal/external distinction. Among other things, this distinction helps determine whether lawyers are better seen as private or public fiduciaries, and in practice it may bear on both judicial reasoning and legal compliance. (shrink)

Direct-to-Consumer genomics has been a controversial topic for over a decade. Much work has been done on the legal issues it raises. This article asks a different question: What will DTC genomics and its legal issues look like in ten to twenty years? After discussing the five current uses of DTC genomics, it describes three current legal issues: medical uses, privacy of genomic information, and privacy in collection and analysis of human DNA. It then suggests that changes in human genomics (...) and how it is used will make the first of those DTC genomics legal issues less important in the future, but that the third will be increasingly significant. (shrink)

Opioid litigation continues a growing public health litigation trend in which governments seek to hold companies responsible for population harms related to their products. The litigation can serve to address gaps in regulatory and legislative policymaking and in market self-regulation pervasive in the prescription opioid domain. Moreover, prior opioid settlements have satisfied civil tort litigation objectives of obtaining compensation for injured parties, deterring harmful behavior, and holding certain opioid manufacturers, distributors and pharmacies accountable for their actions. In this way, opioid (...) litigation represents progress over prior public health litigation campaigns involving tobacco, lead paint, and asbestos, which had more limited tort litigation effects. Although opioid litigation is not a comprehensive solution to the opioid crisis, it can complement other strategies and infuse much needed money, behavior changes, and public accountability for prescription opioid and related harms. (shrink)

It is 50 years since Stephen Wexler’s essay, Practicing Law for Poor People, was published.1 By any reasonable measure, this has become and remains an iconic piece. Whether he is agreed with or dis...

Since its enactment, the Affordable Care Act has faced numerous legal challenges. Many of these lawsuits have focused on implementation of the law and the limits of executive power. Opponents challenged the ACA under the Obama Administration while supporters have turned to the courts to prevent the Trump Administration from undermining the law. In the meantime, Congress remains gridlocked over the ACA and many other critical health policy issues, leaving the executive branch to adopt its preferred policy approach and ultimately (...) leading to lawsuits. This article briefly discusses the history of litigation over the ACA and some reasons why this litigation has been so enduring. The article then identifies other areas of health policy that are or could be future targets for litigation. Finally, the article comments on the potential impact of the courts on future health reform efforts. (shrink)

Over the past decades, anti-cancer treatments have evolved rapidly from cytotoxic chemotherapies to targeted therapies including oral targeted medications and injectable immunooncology and cell therapies. New anti-cancer medications come to markets at increasingly high prices, and health insurance coverage is crucial for patient access to these therapies. State laws are intended to facilitate insurance coverage of anti-cancer therapies.Using Massachusetts as a case study, we identified five current cancer coverage state laws and interviewed experts on their perceptions of the relevance of (...) the laws and how well they meet the current needs of cancer care given rapid changes in therapies. Interviewees emphasized that cancer therapies, as compared to many other therapeutic areas, are unique because insurance legislation targets their coverage. They identified the oral chemotherapy parity law as contributing to increasing treatment costs in commercial insurance. For commercial insurers, coverage mandates combined with the realities of new cancer medications — including high prices and often limited evidence of efficacy at approval — compound a difficult situation. Respondents recommended policy approaches to address this challenging coverage environment, including the implementation of closed formularies, the use of cost-effectiveness studies to guide coverage decisions, and the application of value-based pricing concepts. Given the evolution of cancer therapeutics, it may be time to evaluate the benefits and challenges of cancer coverage mandates. (shrink)

Using mobile health research as an extended example, this article provides an overview of when the Common Rule “applies” to a variety of activities, what might be meant when one says that the Common Rule does or does not “apply,” the extent to which these different meanings of “apply” matter, and, when the Common Rule does apply, how it applies.

Unveräußerliche Rechte kann man nicht freiwillig aufgeben oder übertragen. Nicht nur Grundrechte können unveräußerlich sein. Unser Rechtssystem schränkt auf unterschiedliche Weisen die Verfügung über gewisse Rechte ein. Weshalb dürfen aber die Rechtstragenden nicht darüber verfügen? Handelt es sich dabei nicht um eine ungerechtfertigte Einschränkung der Vertragsfreiheit oder der möglichen Einwilligung?