CHAPTER 8

Law and Legal Professionals

Lecture slides prepared by Lisa J. Taylor

Law

• Administers justice

• Enforces rights

• Is a tool of behavior change

• Is educative

• Natural law: Laws inherent in the natural world that can be discovered by reason.

• Positive law: Laws written and enforced by society.

• Social contract theory holds that people sacrifice certain freedoms in exchange for the protection of society.

• How much freedom should be sacrificed?

• Only the minimum necessary to protect the liberty of others.

Protection from Harm

• Convicted of killing his wife.

• Note left on bathroom mirror rebuking his wife for not having sex with him the night before.

• Evidence of extramarital affair.

• Bloody bandana found near the home—but was suppressed from the defense.

• Incarcerated for nearly 25 years before being exonerated due to DNA and other evidence not shared at trial.

Michael Morton Case(1986)

Justifications for Law

• The harm principle: to prevent harm to persons other than the actor (assault, robbery, arson)

• The offense principle: to prevent serious offense to persons other than the actor (public indecency or lewdness)

• Legal paternalism: to prevent harm to the actor (seat belts)

• Legal moralism: to prohibit conduct that is inherently immoral (gambling)

• Benefit to others: to provide some benefit to persons other than the actor (toxic waste dumping)

Laws that prevent people from harming themselves.

Ethics of care: OK—behavior is “good” for the subject even though he or she may not agree.

Utilitarianism: OK—such laws reflect a “public good.”

Ethical formalism: NOT OK—violates the concept of treating all with regard.

Protection From Self (Paternalism)

Paternalism with Restrictions?

• Should be as limited as possible.

• Should only apply if a person is incapable of making a competent decision.

• Should seek only to prevent a serious and irreversible error.

• Two states have no helmet law.

• Nineteen states have a mandatory helmet law.

• Twenty-seven states have an age requirement for helmets.

• Two states have an age and insurance requirement.

Helmet Laws in

the United States

• The state often makes laws based on moral standards, even though there is no consensus within society about these moral standards.

• Some behaviors are defined as “wrong” and are prohibited, although those involved in them are consenting.

• Legal moralism may change through time.

• The U.S. Supreme Court upheld Georgia’s right to declare sodomy illegal in 1986. In 2003, the same court declared Texas’s law against same-sex sodomy unconstitutional.

Protection of Morals (Moralism)

• Massachusetts was first to allow same-sex marriages in 2004.

• Prior to 2012, same-sex marriage was also legalized in NY, CT, IA, NH, VT, and Washington, D.C.

• In early 2012, WA State and MD both approved same-sex marriage laws, but neither took effect immediately and both were expected to be challenged in referendums.

• In early May, 2012, NC voted for a constitutional amendment that would ban same-sex marriages, partnerships and civil unions.

• This issue continues to evolve, be a topic of discussion, and hotly debated in the political arena.

Same-Sex Marriage Laws in

the United States

Paradigms of Law

Consensus paradigm Society is a community of like-minded individuals who agree on goals important for ultimate survival.

Conflict paradigm Society contains competing and conflicting interests. Governance is based on power; if some win, others lose, and those who hold power promote self-interest.

Pluralist paradigm Society contains competing interests, but more than two basic interest groups exist; the power balance may shift as part of the dynamics of societal change.

• Some people believe that advocate for more severe sanctions and harsher laws against illegal aliens.

• There are other groups who advocate amnesty, worker permits, the Dream Act (that would award citizenship to college graduates or those who enter the military) or other solutions.

• The law is dynamic and even existing law is fluid in that enforcement practices shift from time to time.

Immigration Laws in the

United States

Perceptions of Judicial Processing

The Ideal:The American Justice system is fair and unbiased.

Two equal advocates, with a neutral judge, arrive at the truth.

The Reality:Most defendants are represented by overworked and/or

inexperienced advocates.

A “Confidence Game”:Advocacy a pretenceIndividualized justice a pretence

Bureaucratic Justice:Bureaucratic efficiency supplants goal of justicePresumption of guilt (plea bargaining)

The Wedding Cake Model: The few "serious" cases are the top layerBottom of the cake represents the majority of casesBottom receive mere token of justice process

Perceptions of Judicial Processing

Rules of the Justice Game (Dershowitz)

Rule I: Almost all criminal defendants are, in fact, guilty.

Rule II: All criminal defense lawyers, prosecutors, and judges understand and believe Rule I.

Rule III: It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.

Rule IV: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.

• Investigative report revealed that black and Hispanic motorists passing through were stopped for minor violations and threatened with jail or the loss of their children if they didn’t hand over large amounts of money.

• The DA said denied any wrongdoing, arguing that Texas law allows the confiscation of money and personal property used in a crime.

• Prosecutor’s office wrote a $10K check from the asset forfeiture account to a police officer who stopped many of the people, for “investigative costs.”

• Class action suit was filed.

• Investigation showed that over 1K people were stopped on questionable grounds.

Tenaha, Texas(2009)

Rules of the Justice Game (Dershowitz)

Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV.

Rule VI: Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.

Rule VII: All judges are aware of Rule VI.

Rule VIII: Most trial judges pretend to believe police officers who they know are lying.

Rule IX: All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers.

Rules of the Justice Game (Dershowitz)

Rule X: Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.

Rule XI: Most judges and prosecutors would not knowingly convict a defendant whom they believe to be innocent of the crime charged (or a closely related crime).

Rule XII: Rule XI does not apply to members of organized crime, drug dealers, career criminals, or potential informers.

Rule XIII: Nobody really wants justice.

• The Legal Agent model defines the lawyer as neither moral nor immoral, but merely a tool.

• Under the Special Relationship model, the lawyer places loyalty to the client above all other considerations.

• Under the Moral Agent model, the lawyer must adhere to his or her own moral code.

The Attorney-Client Relationship

Legal Agent vs. Moral Agent

• “Hired gun”

• Promotes client’s interests and performs client’s will

• Argument that this is the role of the attorney and ethical standards and rules keep attorneys from doing illegal or unethical acts

• Maintains own values of truthfulness, moral courage, benevolence, trustworthiness, and moral autonomy

• Will refuse to perform acts that violate personal code of ethics

• Argument that ethical rules are easily circumvented and each attorney must practice individual morality

Legal Agent vs. Moral Agent

Cohen’s Moral Principles for Lawyers:

• Don’t treat people merely as the means to winning cases

• Treat similar people similarly

• Don’t deceive the court

• Make reasonable personal sacrifices for morally good causes

• Don’t financially support or profit from wrongful acts

• Avoid harming others while representing your client

• Be loyal to your client; don’t betray confidences

• Make moral decisions; act consistently upon them

Legal Agent vs. Moral Agent

Criticisms of Cohen’s Principles:

• They are naïve and wrong on several counts

• Existing rules already prevent unscrupulous acts

• Decisions regarding justice and morality are so subjective that it is impossible for them to be judged

• A lawyer acting as a moral agent would forfeit client trust by substituting his or her own moral code for the client’s

Model Code of Professional ResponsibilityModel Rules of Professional Responsibility

Restatement of Law Governing LawyersCriminal Justice Standards

• Each state bar association can sanction offending lawyers or recommend suspension of their law license.

• Many complain that bar associations ineffectively police their own ranks.

• While law schools require ethics courses, many believe that, in practice, ethical considerations are secondary.

Ethical Standards for Lawyers

Thinking

Point

In the first quarter of 2010, a public defender from San Francisco accused the district attorney of outright obstruction of justice and unethical conduct by refusing to release the district’s law enforcement officers criminal and misconduct histories for use in trial. The district attorney’s office is legally obligated to hand over such information to the designated defense. By neglecting to hand over such information, hundreds of cases are in jeopardy of mistrials.

Was the DA’s act unethical?

Does it violate the legal agent? Moral agent? Why?

Responsibility to the Client

Attorneys cannot abandon their clients unless:the legal action is for harassment or malicious purposes, continued employment will result in violation of a disciplinary rule, discharged by a client, or a mental or physical condition renders effective counsel impossible.

Responsibility to the Client

Attorney–client privilege prevents compelling attorneys to disclose confidential information about their clients

Exceptions that permit revealing confidences include:•When clients consent

•When required by law or a court

•To defend against an accusation of wrongful conduct

•To prevent clients from committing crime or fraud

•To prevent, mitigate, or rectify financial injury to another

1. “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

2. “A judge shall perform the duties of judicial office impartially, competently, and diligently.”

3. “A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”

4. “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”

ABA’s Model Code of Judicial Conduct