Ethical challenges in the practice of law
Author: Radu Damaschin
“If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside law or outside of it, in the vague sanctions of his conscience.” Oliver Wendell Holmes
Perhaps more than in any other profession, legal practitioners are often confronted with moral issues for which laws, statutes and especially codes of ethics do not always provide real solutions. The Romanian code of ethics governing the legal profession, for example, sets forth principles and rules of conduct that the lawyer should abide by, both in the exercise of the profession and in their public and private life. More specifically, the professional ethical norms outline certain general guidelines that should govern the attorney’s relationship with the clients, magistrates, judicial bodies and institutions with jurisdictional powers, as well as with any other entities with whom they initiate and establish relations in the course of exercising their profession.
Such guidelines can certainly be relevant in establishing a code of behavior and often set the standard for enforcing disciplinary liability; however, they do not necessarily provide an ethical basis for the decisions that a lawyer may take in the course of their professional activity. This article does not focus on the issues of incompatibility or conflict of interests, which, despite the fact that they sometimes give rise to highly sensitive and confusing problems, are nonetheless manageable under the purview of firmly-established professional rules. In day-to-day practice, the great ethical challenges faced by the legal professionals consist in their approach to the case, the client and the client’s objectives and, obviously, in the actions they chose to pursue in order to achieve these objectives.
The practice of law must often deal with specific challenges such as prostitution, the consumption of illegal substances, fiscal optimization, urbanism and environmental protection, establishing custody for minors, etc. These types of cases give rise to moral dilemmas that should be resolved by the lawyer based on abstract principles (dignity, honor, ethical standards, integrity), which the deontological code enumerates without actually clarifying whether they have an intrinsic significance with respect to the nature or social role of the profession.
Many times, the choice of a certain professional conduct may place the lawyer in an area of extreme discomfort that clashes with their own value system or their vision as to what would be the correct and moral thing to do. Even though the subject is almost always avoided, it is most definitely an issue on everyone’s personal agenda, at least as long as the legal practitioner does not tend to ignore it.
Evidently, this material is not intended to analyze the nature of our ethical convictions or the reasons underlying our actions. We only want to emphasize that, in most cases, general ethical theories represent a natural common benchmark for all the decisions taken by a lawyer in the exercise of their profession. From this perspective, there are two fundamental approaches to the inquiry into the motivation of conscious human behavior. The first one refers to the deontological/Kantian ethics, which is based on the concept of duty. Under this approach, only actions motivated by duty have any moral value. Consequences are utterly irrelevant since they are ab initio uncertain. Simply put, moral value exists only when the way in which you act in relation to others is equivalent to the way in which all others would act in relation to you. On the other hand, the teleological or consequentialist theory considers that the value of an action is given by its final purpose. The proponents of this theory dismiss the idea that actions are intrinsically bad or good and consider that this assessment should be made based on consequences, which may be pleasure or happiness. To these two fundamental theories we can add the ethical model of virtue, which is, however, centered mainly on the character of the person and not necessarily on the nature of the person’s actions.[1]
Considering these traditional ethical principles and given that, in most cases, lawyers act in certain circumstances in a way that is entirely different from that in which a regular person would act, there is a certain tendency to characterize the whole professional group as immoral.
In order to provide solid ethical arguments to support the particularities that characterize the profession and counteract such harsh moral judgment, North American and Commonwealth lawyers have developed an amorality theory, referred to as the standard concept of legal ethics. This ethics approach considered the standard because it corresponds to the classical perspective on the legal profession, namely that of representing contrary interests before the court[2]. This stems, first of all, from the premise that legal reasoning, as expressed in the activities specific to the legal profession, is almost invariably a manifestation of the underlying ethical element. Second, the theory focuses on the fact that a lawyer’s moral options cannot be judged by reference to the teleological or deontological analysis model because they are far too general and universalist. On the other hand, using virtue as the reference standard would not be relevant given that it is considered to be tributary to historical, social and cultural relativism, which can affect and distort the evaluation and decision-making process. Furthermore, generally speaking, outside any context, very few actions can be considered fundamentally good or bad. A lawyer’s action or inaction is always a response to a particular situation. Therefore, it is irrelevant to compare the morality of an action that occurred in a particular circumstance with that of the same action under completely different circumstances. This is why it is considered that specific interpretations of applied ethics, such as legal ethics, should always rest on specific factual circumstances against the background of the socio-economic and cultural context. Furthermore, some authors consider that this theory is also based on a differentiation of roles, which situates the lawyer in a unique position whereby their moral obligations in the exercise of their day-to-day professional activities are fundamentally different from that of a regular person.[3]
Going back to the standard moral concept, most authors consider that this is substantiated on the following principles[4]: i) the principle of partisanship; ii) the principle of neutrality or that of client autonomy; ii) the principle of non-accountability.
The principle of partisanship, or, more specifically, of advocating the client’s case, is reflected in lawyers’ obligation of doing everything they consider necessary to protect the client’s interests. Moreover, in order to provide adequate representation, the lawyer might breach the purpose of the substantive law, as well as ignore third parties’ interests.
The principle of neutrality imposes upon lawyers the obligation to not judge the client’s objectives and to not allow their moral values interfere with providing the best defense for their clients. A classic example is in this respect is the decision to file a complaint in court or to raise specific arguments, a decision that belongs to the client, not to the lawyer. In these, and in all cases, moral neutrality is the element that allows lawyers to be the best advocates for their clients.
The principle of non-accountability excludes any moral accountability for the actions committed in the course of performing professional obligations, as long as they fall under the applicable legal limits. Under this theory, the lawyer is only a (legal) instrument of the client, a technician who provides assistance in order to obtain the intended results.
The standard concept of legal ethics, as reflected in the principles above, focuses exclusively on the role of the lawyer as the representative of the client. Historically speaking, this is a liberalist concept, as it rests on the conflict between the citizen and the state institutions, which was later expanded to cover any legal conflict that involves the skills of a lawyer. Some authors consider that this concept might be justified by legal positivism, which is the predominant legal philosophy in North America.[5] This article, however, examines the distinction between law and ethics; more specifically the preeminence of law over ethics. A lawyer’s conduct is determined exclusively by legal, not ethical grounds. More specifically, a lawyer’s professional obligations, as reflected in the statutory and deontological norms governing the profession, must be strictly followed, without any additional ethical analysis
It is obvious that these principles are not immune to criticism, much of which is not exaggerated at all. In this respect, it has been noted that the unconditional assumption of the theory of amorality can sometimes have painful legal and social consequences. Distorting reality and encouraging confusion as to the applicable law through abusive techniques and professional tools (that do not necessarily constitute legal abuse) can lead to questionable legal solutions. The desire to win at (almost) any cost results in indifference towards the regime/dynamics of the property/rights and towards the social consequences of such a decision. At the same time, the consistent application of these rules of conduct may result in a lack of sensitivity in the personal and even the professional life of the lawyer, which prevents the lawyer from showing empathy for the client’s situation. Finally, the abuse of amorality can also leave a definitive mark on the public perception of the statute of the legal profession and the integrity of its members.
For this particular reason, the ethical approach outlined above is just one of the approaches proposed by theoreticians. An alternative theory is equally centered on the social role of the lawyer, but analyzes it from a different angle, in the sense that the legal activity and, implicitly, professional ethics, are no longer subordinated to the interest of the client, but to the need to ensure conformity with the reasoning of the law. Based on this assumption, the lawyer should make sure that no decision is taken based exclusively on purely formal or procedural arguments. This approach transforms in fact the legal practitioner in a defender of the legal system (of the proper functioning of the legal institutions), even if this may be contrary to the interests of the lawyer’s client. As in the case of the standard ethical theory, under this alternative theory personal moral convictions are irrelevant. This theory, referred to as the responsible lawyer theory, is supplemented or nuanced, as appropriate, by the theory of moral activism, pursuant to which the lawyer must contribute to changing the laws and the institutions so that the access to justice becomes easier and the law, considered in the most general sense, is improved.
Finally, a last possible approach to professional ethics may be analyzed from the perspective of the relationships between the members of the community, in relation to whom the law and the legal institutions are perceived as a derivative. Under this theory, the role of the lawyer is to avoid any harm to the members of the community, who are, in all situations, more important than any institution[6]. One can see that the last two theories attempt to strike a balance between personal ethics and professional conduct.
Without denying that, by virtue of their activity, lawyers have the chance to contribute to preventing conflicts, perfecting laws and institutions, enhancing the trust of the general public in the legal system, we must note that in Romania the legal practice is, at least for now, predominantly centered on resolving conflicts between contradictory interests. From this perspective, the standard approach seems much more appropriate to contribute, at least in part, to surmounting the moral challenges with which lawyers could be confronted.
Furthermore, without claiming that the aforementioned theories can offer viable solutions to all these problems, we dare say that, in the exercise of their specific activity, the lawyer cannot be asked to be truly impartial. Their conduct is always determined by the mandate granted by the client, and in relation to such mandate, lawyers need to distance themselves from certain moral considerations that would prevent them from providing the best legal assistance to their client. Regardless of whether we analyze the ethics of the legal practitioner from the perspective of the classical legal conflict of interest or from the perspective of their special role as guardian of the forms of social order (advisor, negotiator, mediator, etc.), lawyers should have their own moral standards that would guide them in providing the public service they are required to fulfill.
In theory, things seem to be quite simple. In practice, the situation is somewhat different, since it is difficult to imagine that lawyers could actually afford to absolutize the moral values they should abide by. From this perspective, the distinction of roles analyzed as possible grounds for the standard conception is a theoretical premise that is, to a certain extent, overemphasized, as no one can draw a clear line between personal and professional life. The same applies to the distinction between personal moral values and the moral values that are supposed to be purely professional. The amorality theory can serve, in many cases, as undisputable professional support but, in order for the lawyer to reach self-acceptance, this theory will have to be eventually reconciled with the layer’s own moral convictions. And this remains a purely personal endeavor.
This article, although not fully comprehensive on the ethical issues faced by legal professionals, may nonetheless can serve as an effective tool for guiding the ethical practice of the legal profession and an useful moral assessment tool in a world that is becoming ever more complex.
This article was first published in Romanian language on Cariere Online.
[1] Virtue ethics encourage people to act in the way that a virtuous person would act, and offer in this respect standards of conduct that a “good” person should abide by.
[2] The standard concept of lawyers’ ethics is specific for the system of adversarial advocacy where trials are mainly led by lawyers and the role of the judge is limited to ensuring a fair trial/procedural framework, not to investigating the truth, which is a characteristic specific for the (continental) inquisitorial jurisidictions. However, from the perspective of the topic analyzed herein, the distinction is irrelevant.
[3] Please see Stier Serena, Legal Ethics: The integrity Thesis, Ohio State Law Journal, vol. 52 no. 2 (1991), p. 553, http://hdl.handle.net/1811/64554
[4] Please see W. Bradley Wendell, Lawyers and Fidelity to Law, Priceton University Press, Princeton 2010, p. 6.
[5] For details, please see Cesar Arjona, Amorality Explained, Ramón Llull Journal of Applied Ethics, 2013 (4), p. 51-66.
[6] For further details, please see Christine Parker, A critical morality for lawyers: four approaches to lawyers’ ethics, https://www.austlii.edu.au/au/journals/MonashULawRw/2004/3.html,
