[9.] Introduction to Legal Ethics.

 

Our first reading in legal ethics is an article by Michael Milde (former professor of law, McGill University; retired in 2006).

 

 

[9.1] The Duke Lacrosse Rape Case.

 

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.[1] He was appointed to the position of district attorney 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. He was, in fact, reelected as the Duke case played out.

 

In December 2006, the State Bar of North Carolina filed an ethics complaint against Nifong, accusing him of breaking rules of professional conduct:

 

• “making ‘comments that have a substantial likelihood of heightening public condemnation of the accused.’”

 

• “‘dishonesty, fraud, deceit or misrepresentation.’ The bar said that when DNA testing failed to find any evidence that any lacrosse player raped the accuser, Nifong told a reporter the players might have used a condom. According to the bar, Nifong knew that assertion was misleading, because he had received a report from an emergency room nurse in which the accuser said her attackers did not use a condom.”[2]

 

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. He resigned from his position as attorney general in July 2007.

 

In August 2007, Superior Court Judge W. Osmond Smith III found that Nifong

 

“willfully made false statements’” in September [2006] 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.[3]

 

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.[4]

 

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.

 

 

[9.2] Milde on Legal Ethics.

 

Just as with DesJardin’s approach to business ethics, Milde’s way of thinking about 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 we have dealt with up to now:

·         utilitarianism, which is essentially prospective or forward-looking, concerned with the consequences of an action  [Milde prefers the term “consequentialism”; 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, ethical egoism is a non-starter.]

·         deontology, which is based on antecedent considerations, i.e., those that are in place before the action to be evaluated: rights, duties, desert, etc.

·         virtue ethics, which is concerned with morally valuable personality traits that make one a good person, rather than with the evaluation of individual actions.

 

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.

 

 

[9.3] 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 there are differences between Kantian deontology and legal ethics

2.      “the empirical argument”

3.      “the conceptual argument” (#1): conflicting duties (in general)

4.      “the conceptual argument” (#2): conflicting duties (in legal ethics)

 

 

[9.3.1.] Argument 1: Kantian Deontology vs. Legal Ethics.

 

Kantian deontology and legal ethics are fundamentally different in at least two ways:

 

Kantian deontology	legal ethics
“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)[5]
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)[6] or consequentialist (encouraging them to “consult the actual, probable, or even just possible consequences of their actions before determining how to act.” (47))

 

 

[9.3.2.] 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...

 

 

[9.3.3.] 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 save innocent lives whenever we can.

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)[7]

 

 

Stopping point for Monday March 23. For next time, continue reading the article by Milde (“Legal Ethics: Why Aristotle Might be Helpful,” pp.52-54).