[2.] Introduction to Legal Ethics.
[1.1] The Duke Lacrosse Rape Case.
In your first reading of the semester (“Legal Ethics: Why Aristotle Might Be Helpful”), Michael Milde begins by making the following point:
... even the cynical stance that asserts that lawyers have no scruples and will do whatever they can get away with depends for much of its rhetorical impact on the underlying assumption that there really are recognized constraints on what lawyers should be doing. Furthermore, it is clear that in practice, lawyers found to have fallen below certain levels of personal and professional behavior will be disciplined by their law societies, or by the courts. Thus in discussing the nature of legal ethics, it is, fortunately, not controversial to assume that there are standards of right conduct to which lawyers are expected to conform. (Milde 45, emphases added)
These claims are illustrated by the case of Mike Nifong, the Durham County, NC, district attorney who prosecuted the Duke Lacrosse rape case.
In March 2006, Crystal Gail Mangum, a 27-year old woman African-American woman who was a student at North Carolina Central University, accused three members of Duke’s lacrosse team of beating, choking and raping her during a party at an off-campus house. All three of the accused were white. Mangum was one of two exotic dancers hired to perform at the party. Police eventually charged the three players with rape and kidnapping.
Nifong was appointed to the position of DA by the state’s governor when the previous DA resigned to take a seat on the state Superior Court. During the early stages of the case, Nifong was running for election to the position to which he had earlier been appointed, and he was reelected as DA as the Duke case played out. During this period, Nifong gave many interviews in which he was very outspoken about the guilt of the three accused lacrosse players.
In December 2006, the State Bar of North Carolina filed an initial ethics complaint against Nifong, accusing him of breaking a number of its rules of professional conduct:
· “[E]xcept for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, [lawyers should] refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused…”
In January 2007, the North Carolina State Bar filed further charges against Nifong:
Nifong's office arranged for a private lab to conduct DNA testing as part of the investigation ... Those tests uncovered genetic material from several men on the woman's underwear and body, but none from any lacrosse player. The bar complaint alleges those results weren't released to defense lawyers in a timely fashion and that Nifong repeatedly said in court he had turned over all evidence that would potentially benefit the defense. Nifong's actions constitute a ‘systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice,’ the complaint read.
In June 2007, Nifong was disbarred because of these ethics violations. A North Carolina state bar disciplinary committee found that he had continued to pursue charges against the three lacrosse players even after it became obvious that they were innocent.
In July 2007, Nifong resigned from the position of district attorney.
In August 2007, Superior Court Judge W. Osmond Smith III found that Nifong
“willfully made false statements’” … when he insisted he had given the defense all results from a critical DNA test.
Smith found that Nifong had provided the defense with a DNA testing report that he knew to be incomplete. The omitted data contained test results showing that DNA of multiple men, none of whom were lacrosse players, was on the accuser.
Smith said his decision was aimed at “protecting and preserving the integrity of the court and its processes.” He said truthfulness is especially important when it comes to the rights of the accused to a fair trial.
For lying about that DNA evidence, Nifong was found guilty of contempt of court and served one day in jail. Since then he has been sued by six members of the Duke lacrosse team and has filed for bankruptcy.
Nifong is an example of a legal professional who seems to have behaved in a clearly unethical way, with his top priority not the pursuit of justice but the promotion of his own political career. Even cynics about legal ethics can recognize that what Nifong did was immoral and thus that there are moral standards that lawyers should live up to, even if it is the case that they frequently fail to do so.
In other words, the normative question “What should lawyers do?” seems to be independent of the descriptive question “What do they actually do?”
[2.2] Milde on Legal Ethics.
Our first reading in legal ethics is an article by Michael Milde (former professor of law, McGill University; retired in 2006).
Milde’s approach to legal ethics involves both
· descriptive elements (involving what the actual standards are that are employed by lawyers), and
· normative elements (involving how lawyers should behave, regardless of the standards they actually follow).
Milde discusses the three central traditions of normative ethics:
3. virtue ethics
Before we begin looking at the details of Milde’s article, we need to review the basics about these three traditions.
utilitarianism (df.): the right thing to do in any situation is whatever will increase the overall amount of happiness or well-being in the world and decrease the amount of pain and suffering.
· In the 19th century, classical utilitarians (including Jeremy Bentham, John Stuart Mill, and Henry Sidgwick) emphasized increasing happiness and reducing suffering.
· Modern utilitarians are likely to emphasize, not happiness, but well-being or making people (and perhaps other creatures) better off.
· Utilitarianism is essentially prospective or forward-looking, concerned with the consequences of an action.
A note about terminology: Milde prefers the term “consequentialism” to “utilitarianism.” However, “consequentialism” is better reserved for the broader theory, defined as follows:
consequentialism (df.): a normative theory that judges whether an action is moral or immoral based only its consequences/effects; nothing else about the action is morally relevant.
· Defined this way, consequentialism does not specify which consequences matter; in particular, it does not answer the question: consequences for whom?
· If you answer: the consequences for anyone who could be affected, then you are incorporating impartiality or equal consideration into your consequentialism, and this makes you a utilitarian.
· However, if you answer: the consequences for you and you alone—the effects of your actions on others are irrelevant to the morality of those actions, then you are embracing another, much less plausible form of consequentialism:
ethical egoism (df.): the form of consequentialism according to which the right thing to do in any situation is whatever has the best consequences for you; the effects of your actions on other beings are morally irrelevant.
Once you have eliminated ethical egoism as an option, utilitarianism is the only form of consequentialism remaining. So his preference for “consequentialism” may simply indicate that for Milde, as for many other philosophers, ethical egoism is a non-starter.
Consequentialism is one main tradition within normative ethics. Another main tradition is
deontology (df.): the tradition of normative ethics that focuses on duty, holding that there are some actions that you have a duty to perform and some you have a duty not to perform, regardless of the consequences (from Greek “deon”, meaning duty, and “logos”, meaning science or study).
· Unlike utilitarianism, deontology is retrospective, in that it bases moral judgments on antecedent considerations, i.e., those that are in place before the action to be evaluated: rights, duties, desert, etc.
One of the most influential forms of deontology is the ethical theory of Immanuel Kant (1724-1804; Prussian). Kant believed that...
· morality is a matter of reason; to be rational is to be moral, and if you behave immorally, you are being irrational;
· there are universal moral rules, rules that apply to all human beings, no matter the time or place;
· moral rules are absolute, i.e., they have no exceptions whatsoever and should never be broken, no matter the consequences; all moral rules are
categorical imperatives (df.): principles or rules that everyone is obligated to follow, no matter what; e.g., you ought not to kidnap and torture innocent children.
Kant believed that every individual categorical imperative can be derived from one central moral principle—a principle of which he offered multiple statements:
The Categorical Imperative (1st version): “Act only according to that maxim by which you can at the same time will that it should become a universal law.”
This principle suggests a procedure for deciding whether it is morally permissible to perform an action… Ask what “maxim” (a rule or principle of behavior) you would be following were you to perform that action, then ask whether you can rationally will for that maxim to “become a universal law,” i.e., whether you can rationally will for everyone to follow that maxim, all the time. If you can, then the maxim is “universalizable” and the action is morally permissible; but if you cannot, then the maxim is not “universalizable” and the action is immoral
The Categorical Imperative (2nd version): “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.”
This principle requires that we respect the rationality of individuals. In other words, it requires that we respect their ability to decide how they will behave, how they will live their own lives. It requires that we respect their autonomy.
autonomy (df.): the capacity for self-governance, especially for making important decisions for oneself [from Greek auto (“self”) and nomos (“rule”)].
This means that we can never use them or manipulate them to achieve our own purposes, even if our purposes are good ones.
Kant thought the two formulations of the CI were equivalent: he thought the two formulations implied all of the same specific categorical imperatives, i.e., all of the same specific rules of morality.
[2.2.3.] Virtue Ethics.
As different as utilitarianism and deontology are, they all assume the same approach to thinking about ethics: they assume that ethics ought to provide a guide for action, to tell us what we should do in any given circumstance.
But there is a very different way of approaching ethical questions, one that goes back to ancient Greece, to the philosophers Socrates, Plato and (especially) Aristotle (384-322 BCE), in his classic work Nichomachean Ethics.
Instead of asking about the morality of actions, or types of action, these ancient thinkers asked: what makes someone a good person? what sort of person should I be? what character traits should I cultivate in myself?
On this view, the primary job of normative ethics is to tell us what kind of people we should be.
virtue ethics (a.k.a. virtue theory) (df.): an approach to ethics that emphasizes morally valuable character traits rather than the moral value of actions; the virtues include
Milde will argue that “legal ethics is best understood as a version of virtue ethics. Standards of right conduct will be determined by the exercise of specific virtues developed through legal education and the practice of law.” (46)
And he will try to convince us that one advantage of the virtue ethics approach to legal ethics is that it can incorporate both deontological and consequentialist considerations.
As we will see, it is important to Milde’s view that “‘the law’ is a social institution, one that serves specific (and sometimes controversial) social and political purposes.” (46) In other words, an adequate account of legal ethics will attend to the social and political purposes that a system of law is supposed to serve.
Stopping point for Monday August 16. For next time, begin reading the article by Milde (“Legal Ethics: Why Aristotle Might be Helpful,” pp.45-51). This is available at the UWG Library website course reserves page for this class. You may have a pop quiz on this reading at the beginning of class on Wednesday.
 Wikipedia has a good summary article on this case <http://en.wikipedia.org/wiki/Duke_rape>. However, remember that Wikipedia can be edited by literally anyone and is therefore not reliable. If you are interested in the facts of this case, you should read some of the many news articles cited by this Wikipedia article.
 “State Bar Files Ethics Complaint Against Mike Nifong.” WRAL.com. 28 December 2006, URL = <http://www.wral.com/news/local/story/1120129/>, retrieved on Oct 27, 2007. The full text of the revised version of the complaint is here: http://news.findlaw.com/wp/docs/duke/ncbnifong12407cmp.html .
 “Former Duke Lacrosse 'Rape' Prosecutor Charged With Withholding Evidence, Misleading Court,” FOXNews.com, January 24, 2007, URL = <http://www.foxnews.com/story/0,2933,246281,00.html> retrieved August 15, 2010.
 Aaron Beard, “Judge Finds Duke Prosecutor in Contempt,” Associated Press, August 31, 2007. Emphasis added.
 “Judge: Duke lacrosse players can pursue lawsuit,” FOXNews.com, May 28, 2008, URL = <http://www.foxnews.com/wires/2008May28/0,4670,DukeLacrosse,00.html>, retrieved March 19, 2009.
 For more on utilitarianism, see Sinnott-Armstrong, Walter, “Consequentialism,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2008/entries/consequentialism/>.
 For more on deontology, see Larry Alexander and Michael Moore, “Deontological Ethics,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2008/entries/ethics-deontological/>.
 Foundations of the Metaphysics of Morals, 1785.
 Kant did put some emphasis on the moral evaluation of persons rather than acts. But his theory was primarily concerned with the moral evaluation of actions rather than that of people. Mill also recognized that people can be morally evaluated, based on their motives; but he held that the morality of actions was primary, and that in judging whether an action is right or wrong, we do not need to know anything about the motives behind it. (Tom Beauchamp, Philosophical Ethics: An Introduction to Moral Philosophy, p.183.)
 James Rachels, Elements of Moral Philosophy, 4th ed., p.176.
This page last updated 8/16/2010.
Copyright © 2010 Robert Lane. All rights reserved.