[9.3.4.] 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[1] which discusses conflicting duties faced by criminal-defense attorneys.

 

On Feldman’s view, strict adherence to black-letter law ...

 

black-letter law (df) “basic principles of law that are accepted by a majority of judges in most states. 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.”[2]

 

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.[3]

 

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.[4]]

 

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 also 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.”[5]

 

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.”[6]

·         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.”[7]

 

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 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 through every moral situation.

 

Milde’s bottom line:

·         legal rules, including rules of professional conduct (like the ABA’s Model Rules) are indispensable as a part of legal ethics;

·         but any such set of rules is inevitably incompletely... so deontology is not sufficient for legal ethics.

 

 

 

 

 

 

 

[9.4.] Legal Ethics and Consequentialism.

 

 

[9.4.1.] A Hybrid of Deontology and Consequentialism.

 

Milde has concluded that deontology is incomplete as an approach to legal ethics. He now examines the possibility of supplementing deontology with consequentialism (and remember, by “consequentialism” he means utilitarianism.)

 

In particular, he considers the possibility of using consequentialist ideas to resolve the conflict cases that are inevitable under a wholly deontological approach. The idea is that you begin with a deontological list of rules and principles that are usually to be followed regardless of the consequences. But then, if conflicts arise, you decide which duty is more important based on consequentialist reasoning. For example:

·         When faced with a conflict between the duty not to lie and the duty to prevent harm (or to preserve life), we should choose the course of action that will result in the greater increase in utility (understood as happiness, well-being, or preference satisfaction).

·         The lawyers in the Lake Pleasant Bodies Case should have decided which duty to uphold—the duty to maintain attorney-client confidentiality or the duty to reveal relevant physical evidence to the court—by considering which course of action would raise overall utility more.

 

An advantage of the hybrid approach: It “is supported by our ordinary expectation that all moral agents (including lawyers) will (and should) take the consequences of their actions into consideration when deciding how they should act.” (52) In other words, it’s what we expect people to do, anyway, as well as what we already think they should do.

 

An objection to the hybrid approach:

 

Once one allows that consequences matter, and that they have the last word in adjudicating conflicts, there is simply no reason not to go directly to a calculation of relative consequences. Duties, on this view, turn out to be defeasible suggestions about how best to maximize positive outcomes: the real evaluative work is done by the consequences. (52)

 

In other words, once we introduce concern for consequences, we practically abandoned deontology and the Kantian emphasis on absolute moral rules. The “absolute duties” of Kant become mere defeasible suggestions for how we should behave.

 

 

[9.4.2.] Act vs. Rule Utilitarianism.

 

At this point Milde brings up a widely discussed and debated distinction between two different forms of utilitarianism

 

Act Utilitarianism (df.): the morality of an individual action depends on whether that specific action increases or decreases utility. If the action increases utility, it is moral; if it decreases utility, it is immoral.

 

Rule Utilitarianism (df.): the morality of an individual action depends on what rule the action follows. If in general, following the rule increases utility, an individual action that follows the rule is moral. If in general following the rule decreases utility, an individual action that follows the rule is immoral

 

Act utilitarianism is the form of utilitarianism we have been considering so far in this course (although I haven’t called it that). In our thinking about utilitarianism, we have evaluated each individual action based on its own consequences. If the action itself has good consequences (and here “good” is understood in terms of maximized utility), then it is morally good. If it has bad consequences, then it is immoral.

 

Instead of asking the question, “What individual action will promote overall well-being?” a rule utilitarian will ask: “What general patterns of behavior can I engage in to promote overall well-being?” In other words, the emphasis will be on identifying those rules which, if followed by people in general, would result in maximized utility.

 

So an act utilitarian will approve of a specific action (call it “A”) if A itself increases utility.

 

But a rule utilitarian could disapprove of A even if doing A will increase utility, if in general (on average, on the whole) doing A would decrease utility.

 

A well-known illustration of the difference between act and rule utilitarianism[8]: suppose that a Utilitarian is visiting a small town in the Midwest where there is a great deal of prejudice against Muslim citizens. A young woman in the town is raped, and most of the townspeople jump to the conclusion that a Muslim did it. Violent riots begin, as the non-Muslim citizens begin demanding that the rapist be caught and punished. Many people, both Muslim and non-Muslim, are injured in the riots; some are killed. You can put an end to this violence and prevent further bloodshed if you lie and say you saw the rape happen and know who did it. Your perjured testimony will put an innocent man in jail and thus end the riots, saving lives.

 

Act utilitarians and rule utilitarians will respond to the case very differently:

·         An act utilitarian will have to approve of giving false testimony against an innocent person in this case, since it will have the best overall consequences.

·         But a rule utilitarian can say that it is wrong to give perjured testimony against the innocent, even though it would result in good consequences in this one case. It would be wrong because, in general, giving perjured testimony against innocent people has bad consequences.

 

Milde will argue that “rule utilitarianism is a better fit [for legal ethics] than act utilitarianism” (52), although even this form of rule utilitarianism has significant problems (as we will see later, Milde thinks virtue ethics is the best approach to legal ethics).

 

 

[9.4.3.] Act Utilitarianism and Legal Ethics.

 

Milde argues that act utilitarianism is an inadequate approach to legal ethics.

 

He offers two different arguments in support of this conclusion:

 

Argument #1: Act utilitarianism “allow[s] too much latitude for unconstrained, subjective decision making by individual lawyers” (52):

 

A conception of legal ethics that gives lawyers carte blanche [i.e., “blank check,” unrestricted power] to determine what they consider conducive to the maximization of positive outcomes would, on many accounts, fail to constitute any kind of ethical direction whatsoever. (53)

 

Imagine a criminal defense attorney who believes that it would be in the best interest of society if her client were to go to jail, perhaps because the client is a violent career criminal. So she decides that the right thing to do is to build a very weak defense for her client, thus helping to ensure that he goes to jail.

 

Even if the lawyer is right that overall utility would be increased by her client going to prison, it still seems wrong for her to aim at getting him sent there:

 

The chief concern here need not be that the lawyer in question has made a faulty calculation of the relative utilities. It is rather the sense that the lawyer should not be involved in this kind of calculation at all because it leads to a pernicious confusion of roles. In effect, even if the lawyer has correctly calculated the relative outcomes of various courses of action, he/she will have illegitimately usurped the roles of prosecutor, judge, and jury. The lawyer needs to recognize that he/she is part of a system, and by short-circuiting its procedures, the lawyer undermines the value of the system as a whole. This insight gives rise to those wholesome and familiar homilies to the effect that even vicious psychopaths deserve the benefit of effective, committed legal representation. (53, emphases added)[9]

 

 

Argument #2: In deciding how to act on a given occasion, an attorney must keep in mind that her actions on that occasion “have implications beyond ... her own situation and affect the legal profession and the legal system more generally.” (53)

·         An attorney has general obligations to uphold principles of due process, fairness, and justice, and her failure to live up to those obligations on a given occasion can help to undermine the legal generally.

·         Act utilitarianism “augments the temptation to treat the situation [at hand] as an exception, a singular confluence of circumstances that is unlikely to be repeated, and so is unlikely to have any effects beyond its immediate parameters.” (53) It can tempt an attorney into thinking that, just this one time, in these special circumstances (with this particular client, who is alleged to have committed this particular crime), it would be morally good to elevate considerations of utility over considerations of justice and fairness.

 

 

Stopping point for Wednesday March 25. For next time, continue reading the article by Milde (“Legal Ethics: Why Aristotle Might be Helpful,” pp.55-60).