[2.3] Legal Ethics and Deontology.
Legal ethics might seem at first to be deontological, given the emphasis the law and legal codes of ethics place on right and duties.
But Milde thinks that this is not the case. He provides four different arguments in support of the claim that legal ethics should not be deontological:
1. the argument that Kantian deontology and legal ethics are fundamentally different
2. “the empirical argument”
3. “the conceptual argument” (#1): conflicting duties (in general)
4. “the conceptual argument” (#2): conflicting duties (in legal ethics)
[2.3.1.] Argument 1: Kantian Deontology vs. Legal Ethics.
Kantian deontology and legal ethics are fundamentally different in at least two ways:
“does not rely on canonical texts to outline an agent’s duties.” Rather, it holds “that all rational agents are capable, on due reflection, of identifying the relevant duties for themselves.” (47)
does have such canonical texts, by which all legal professionals are bound. Over the course of its history, the American Bar Association has put forward different codes...
· Canons of Professional Ethics (1908)
· Model Code of Professional Responsibility (1969)
· Model Rules of Professional Conduct (1983, but amended numerous times since then, most recently in February 2009)
relies on “absolute injunctions and obligations,” e.g., the two formulations of Kant’s Categorical Imperative that we have studied allow for no exceptions whatsoever.
draws on codes that contain rules which are either hortatory (strongly encouraging lawyers to pursue some course of action) or consequentialist (encouraging them to “consult the actual, probable, or even just possible consequences of their actions before determining how to act.” (47))
[2.3.2.] Argument 2: The Empirical Argument.
empirical (df.): having to do with experience and observation.
In general, an empirical argument is one that relies on evidence drawn from sensory experience or observation.
Milde’s empirical argument relies on the actual, observed behavior of lawyers: “codified directives play only a relatively minor [role] in ethical decision making by lawyers.” (48)
In general, lawyers tend not to rely on professional codifications of morality in solving problems. They tend to rely instead on “other members of the profession, specifically senior colleagues (preferably a senior partner in their own firm, when this [is] a possibility).” (48) Milde is here discussing a study of lawyers in Ontario and refers exclusively to the Professional Handbook of the Law Society of Upper Canada. But he seems to intend his conclusion to be generalizable to the professional codes of American law societies, such as the ABA’s Model Rules of Professional Conduct.
Milde considers the following objection:
...the empirical evidence suggests that practitioners are not content to solve moral problems by reference to codified rules and duties alone. It does not show that the persons involved do not engage in a deontological process of trying to identify what their moral duty is in a specific situation. Thus it may seem more like a comment on the adequacy of attempts to codify deontological obligations, rather than a comment about the deontological approach itself. (48)
In other words, the fact that lawyers tend to rely on something other than published professional ethical guidelines to solve problems might indicate only that those guidelines lack the information needed for such problem-solving. And this is consistent with that information being deontological, i.e., it is consistent with that information consisting of absolute rules.
Milde thinks this objection can be gotten around by considering two related non-empirical arguments...
[2.3.3.] Argument 3: The First Conceptual Argument: Conflicting Duties, in General.
This describes a problem with deontological ethics in general (the next argument will consider deontology in the context of legal ethics in particular).
Kant famously held that “Do not lie” is a categorical imperative, a moral rule that it is always immoral to break, no matter what the circumstances. He held that it is immoral to lie even when you believe doing so will save an innocent person’s life.
But for critics of Kant, this example seems to illustrate how duties can come into conflict with one another. Assume that Kant is right that we are bound by
· the duty not to lie.
It is plausible to think that we are also bound by
· the duty to prevent harm, or to save lives.
There have been actual situations in which people have found that they could not fulfill both duties: situations where in order to save the life of an innocent person they had to tell a lie. In this sort of case, the absolute duties have come into conflict, and it is impossible to fulfill both of them. This is a perennial criticism of any normative theory that maintains that there are absolute rules, rules which must never be broken no matter what.
How does a deontologist resolve a conflict like this? If these duties are absolute, then it seems like the conflict is irresolvable, and a person in this situation is destined to violate one of the rules and is therefore forced to perform an immoral action.
To try to settle the conflict by calculating consequences (“Which would increase well-being more, lying to the murderer to save a life, or telling him the truth, thereby directing him to his victim?”) would be to abandon deontology in favor of utilitarianism.
And to leave it up to intuition (to say to each individual that she needs to decide for herself, whenever such a conflict arises, which rule is more important) makes “the decision unacceptably subjective.” (49)
[2.3.4.] Argument 4: The Second Conceptual Argument: Conflicting Duties in Legal Ethics.
One might think that the duties codified in codes of legal ethics would not give rise conflicting duties, since many of those rules are not intended to be absolute. They are instead meant to be consequentialist (directing lawyers to pursue the best possible outcome) or merely exhortative (urging, but not absolutely requiring, some specific course of action).
But Milde argues that despite this, codes of legal ethics can still result in conflicting duties. In doing so, he draws on an article by Heidi Feldman which discusses conflicting duties faced by criminal-defense attorneys.
On Feldman’s view, strict adherence to black-letter law ...
black-letter law (df): fundamental principles of law that are very well established, widely accepted, and uncontroversial. “The term probably derives from the practice of publishers of encyclopedias and legal treatises to highlight principles of law by printing them in boldface type.”
will not always resolve conflicting duties. In fact, a lawyer can sometimes rely only on what is least controversial and most widely accepted in the law but still find it possible to justify completely different courses of action.
As an illustration of this, Feldman discusses the Lake Pleasant Bodies Case:
On Sunday July 29, 1973, Robert Garrow fatally stabbed Phillip Domblewski, an eighteen-year-old student from Schenectady, while Domblewski was on a camping trip in the Adirondacks
About ten days later, after the largest manhunt in the history of the state of New York, police captured Garrow. Police suspected that Garrow had been involved in several crimes beyond the Domblewski murder. They had recently found the body of Daniel Porter, whose death seemed similar to Domblewski’s, about fifty miles from the place where Domblewski was killed. In addition, Porter’s camping companion, Susan Petz, had disappeared “without a trace.” Police later came to suspect that Garrow was also involved in the disappearance of Alicia Hauck, a sixteen-year-old high school student, who had been missing since July 11, 1973.
Shortly after police caught Garrow, the judge appointed Frank Armani to be Garrow’s public defender. Not a criminal lawyer, Armani had never tried a murder case, but he had represented Garrow in several other matters. Armani recruited his friend, Francis Belge, a noted trial lawyer from the area, to help him. Armani and Belge began to prepare an insanity defense for Garrow.
At the end of August 1973, Garrow confided to his lawyers that he had killed Daniel Porter and raped and killed Susan Petz and Alicia Hauck. Armani and Belge verified Garrow’s claims; shortly after Garrow’s confession, the lawyers found the bodies of Hauck and Petz, and photographed them. They found Petz’s body in an abandoned mine shaft, and Hauck’s body in a cemetery. In order to fit all of Hauck’s remains in the photo, Belge had to move her skull. The attorneys did not disclose their find to anyone, even though authorities were still searching for the bodies.
On September 7, 1973, the lawyers met with the District Attorney to discuss plea bargaining. While exactly what the lawyers said is disputed, they at least suggested they could help police find the bodies of Petz and Hauck in exchange for favorable treatment for Garrow. In any case, prosecutors rejected their offer. At around the same time, Armani was approached by Petz’s father for information, but Armani refused to tell him anything about his daughter.
Students eventually accidentally discovered the bodies of Petz and Hauck. Petz’s corpse was not discovered until four months after Armani and Belge took the photos, and the body of Hauck was not found until December 1973. Even after locating the bodies, law enforcement officials were unable to connect Garrow to their demise until his trial in June 1974. There, as part of his insanity defense, Garrow testified in court to killing Phillip Domblewski, Daniel Porter, Susan Petz and Alicia Hauck, and to committing several rapes. Armani and Belge held a press conference on June 20, during which they admitted they had known of Garrow’s other crimes, and of the locations of the bodies, for more than six months.
Garrow was found guilty of Domblewski’s murder and sentenced to twenty-five years to life. On September 8, 1978, Garrow escaped from jail. He was shot and killed by authorities on September 11.
Armani and Belge faced a conflict between two duties:
1. the duty to preserve lawyer-client confidentiality (on this duty, Milde writes: “Lawyer-client privilege is one of the foundations of trust between lawyer and client and helps ensure that full representation is possible,” p.50).
2. the duty to reveal to the court physical evidence relevant to the case at hand (Milde: “lawyers, as officers of the court, have a particular duty to ensure that they do not undermine the administration of justice.” p.50)
The ABA’s Model Rules codify both of these duties and give no guidelines for what to do should they conflict (Feldman quotes an earlier version of the Model Rules; the following comes from the latest version):
Rule 1.6: Confidentiality of Information: ... A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ... [This rule goes on to list several exceptions, none of which is directly relevant to the Lake Pleasant Bodies Case.]
Rule 8.4: Misconduct: It is professional misconduct for a lawyer to: ... commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] engage in conduct that is prejudicial to the administration of justice; ...
Rule 3.4: Fairness to Opposing Party and Counsel: A lawyer shall not: ... unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.
As Feldman points out, Armani and Belge were also operating under
the New York penal code, specifically its provision on hindering a prosecution. This section makes it a criminal offense to assist a criminal so as to a) “prevent, hinder, or delay discovery or apprehension of ... a person who has committed a crime” or b) “to assist a person in profiting or benefiting from the commission of a crime.” Prohibited forms of assistance include the suppression of any physical evidence “which might aid in the discovery or apprehension” of a criminal “or in the lodging of a criminal charge against him.”
On Feldman’s view, a lawyer could rely on these rules to make a credible case for either course of action: revealing the location of the bodies to the court, or keeping that information secret:
· A lawyer who prefers non-disclosure can emphasize Rule 1.6 and argue “that the criminal statute does not require disclosure of mere knowledge of the location of physical evidence. Omitting to tell the police or the prosecution of the site of the corpses does not suppress physical evidence: the bodies remain in place, ready to be discovered.”
· One who prefers disclosure can rely instead on Rule 8.4 and “question the significance of the distinction between omission and commission in this context. When the police are having tremendous difficulty locating these bodies ... withholding this information is a form of helping the client hide the corpses—conduct expressly forbidden by New York’s law against hindering apprehension of a criminal.”
The point that Feldman (and following her, Milde) are making is not that one course of action is morally better than the other. They are not taking a stand on the issue of which duty (confidentiality or the revelation of physical evidence) is the more important one.
Rather, their point is that to decide which course of action is morally better, a lawyer will have to go beyond any set of ethical codes and any actual legislation. Formal codifications of duties are not enough to provide guidance in every moral situation.
Milde’s bottom line:
· legal rules, including rules of professional conduct (like the ABA’s Model Rules of Professional Conduct) are indispensable as a part of legal ethics;
· but any such set of rules is inevitably incomplete... so deontology is not sufficient for legal ethics.
Stopping point for Wednesday August 18. For next time, continue reading the article by Milde (“Legal Ethics: Why Aristotle Might be Helpful,” pp.52-54).
 To illustrate the former sort of rule Milde quotes from the ABA’s Model Rules of Professional Conduct, Rule 3.2: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” (64, n.1)
 But W. D. Ross (1877-1971, Scottish philosopher and author of The Right and the Good (1930), thought it was possible to build an account of duty according to which we know what our duties are by intuition that does not make those duties objectionably subjective. Ross’s approach to deontology may get around the problem of conflict cases. He maintained that deontological duties are not absolute: if you have a duty to do x, it is not a duty to do x no matter what. Rather, it is a prima facie duty, a duty to do x in most circumstances, in the absence of some more important moral duty. So Ross might resolve the case of the inquiring murderer by saying that we have a real prima facie duty not to lie, but a stronger duty not to allow an innocent person to be killed. But how does one know, in a given situation, which duty is more important? Ross’s answer: by way of rational intuition, which Milde describes as “evaluative commitments shared by all rational individuals, and hence demonstrable to all rational individuals” (49). Ross thought it was possible to explain duties this way without succumbing to any sort of ethical relativism (especially one that makes morality relative, not to entire societies, but to individuals). But Milde is skeptical about whether any such approach could really work: “...any recourse to intuitions, including Ross’s, remains controversial, because it is not clear what one can say to someone who frankly and honestly does not share one’s intuitions.” (49) Suppose you disagree with someone (Kant, for instance) about what the more important moral duty is: not lying, or preserving life. Each of you has examined the situation in its entirety and has tried, in an objective and impartial way, to figure out which obligation is more important. If you still disagree, then you have not escaped the problem of conflict cases.
 Heidi Li Feldman, “Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?” Southern California Law Review 69, 1996, 885-948. Available online through the UWG Library web site (through the Lexis-Nexis database).
 West’s Encyclopedia of American Law, 2nd ed., 1998.
 Feldman, “Codes and Virtues.”
 Those exceptions are as follows: “(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (6) to comply with other law or a court order.” < http://www.abanet.org/cpr/mrpc/rule_1_6.html >
 Feldman, “Codes and Virtues,” quoting from the New York penal code; emphasis added.
 Feldman, “Codes and Virtues,” quoted at Milde 51.
 Feldman, “Codes and Virtues,” quoted at Milde 51; emphasis added.
This page last updated 8/18/2010.
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