Turn on thread page Beta

Do Lawyers Ever Make Immoral Decisions? watch

    Offline

    1
    ReputationRep:
    With respect to the opening post, I would say, without getting unduly philosophical about things, that there is a difference between 'morality' and 'ethics'. It is not my job to pass moral judgment on my clients. However, I am obliged to act ethically i.e. within the code of professional ethics imposed upon me by my professional body.

    As a barrister I am governed by a number of different ethical rules.

    The 'cab rank' rule means that I cannot pick and chose my clients. Provided that the brief falls within my competence and expertise, and I am available, I am obliged to accept the job. This may mean that I accept instructions from someone who I find morally repulsive, or with whose political views I disagree. I have to put aside my personal views and for a very good reason: everyone is entitled to independent legal representation.

    My code of conduct states that I must promote and protect my client's best interests fearlessly and by all proper and lawful means, without regard to my own interests.

    I am bound by rules of legal professional privilege. As a general rule any communications that pass between lawyer and client are confidential.

    I also have an overriding duty not to mislead the court, whether knowingly or recklessly. This means that I cannot put forward any factual matter that I know to be untrue, nor can I fail to bring to the attention of the court some case or legal principle that is against my position.

    Sometimes these rules can come into conflict. If my client reveals to me that he did in fact commit the crime with which he is charged, I am entitled to test the evidence against him but may not put forward a positive defence that I know to be untrue.

    For example, if I am representing someone who is charged with an assault and the only evidence against him is a visual identification, I may test the reliability of the ID evidence. I can cross examine the witness on matters such as the quality of the lighting, whether their view was obscured, the distance from which they viewed the incident and so on. I may put to them that their identification is mistaken. What I cannot do is suggest that it couldn't possibly be my client because he was at home watching television with his mother - this is a positive factual defence that I know to be untrue.

    If my client wanted me to run his case on that basis, I would have to withdraw from the case on the ground that I was 'professionally embarrassed'. I cannot tell the court what my client has said to me as that would put me in breach the rules of legal professional privilege.

    (Original post by TheMeister)
    Hence why I if I graduate in Law (as I'd like to), I'd try my hardest to try to work for the CPS. The money isn't as good (by a good margin) as it would be in a private practice, but at least you'll be able to sleep at night.
    Our justice system is founded on the basis that ‘he who asserts proves’. It is always for the Crown to prove its case. As a general rule the defendant does not have to prove anything. It is my job, if I am defending, to robustly test the case for the Crown. I am defending one of the most fundamental civil liberties: the presumption of innocence. I sleep just fine at night.

    There are ethical minefields and difficulties whether you prosecute or defend. Would you really sleep easy at night if you feared that you had helped to convict an innocent man?

    It is not always easy to balance my duty to promote my client's best interests with the other professional obligations I am bound by; I am sometimes required to make very difficult ethical decisions. My first port of call in a sticky situation is the Bar Council's ethical hotline, I usually also call someone senior in Chambers as well to run the situation past them.

    (Original post by Shortarse1)
    In the mind of a lawyer:

    Morals < Money
    In the mind of this lawyer at least:

    Ethics > Money.

    Fundamentally my professional reputation is my living - I am not about to compromise myself by getting a reputation for 'sharp practice'.
    Offline

    1
    ReputationRep:
    (Original post by python38)
    Sorry, I'm a little confused here... what do you mean by "know"? (When I said that the lawyer knows more than the judge, I meant the client tells them more, so that the lawyer knows the client has said certain things are true for whatever reason.)
    The person above has answered your question i think. very well too.
    Offline

    10
    ReputationRep:
    Is the Pope Catholic?
    Offline

    15
    ReputationRep:
    (Original post by ninon)
    I sleep just fine at night.
    You are not me.
    Offline

    1
    ReputationRep:
    all the damn time...lol thats why i think i'd make a great lawyer!
    Offline

    19
    ReputationRep:
    (Original post by python38)
    You mean it's unlikely someone would tell their lawyer they were guilty if they knew there was little evidence against them? I agree with that, but what if they didn't know exactly how much evidence there was? My point was that the judge is never going to know exactly what the lawyer has been told, whether or not it was actually true, due to the whole confidentiality thing.

    What's the CPS? (As you can probably tell, I don't know all that much about Law yet, unfortunately.)
    The defendant doesn't have to make any decisions before knowing how much evidence there is - it is for the prosecution to produce evidence. Knowing the case against you is a pretty fundamental part of any right to a fair trial.

    A more fundamental point is that it doesn't really matter what the defendant said if it isn't supported by evidence. Not defending someone, leading to a conviction, on the basis of "I just know he is guilty" or "he said so" is hear-say. This is exactly how thousands of people were convicted of witchcraft and burnt at the stake up until the 19th century.

    The CPS is the Crown Prosecution Service - they are the guys that prosecute people in the criminal courts on behalf of the State.

    (Original post by ninon)
    Our justice system is founded on the basis that ‘he who asserts proves’. It is always for the Crown to prove its case. As a general rule the defendant does not have to prove anything. It is my job, if I am defending, to robustly test the case for the Crown. I am defending one of the most fundamental civil liberties: the presumption of innocence. I sleep just fine at night.
    I think this sums it up!

    (Original post by TheMeister)
    You are not me.
    Would you care to defend this statement - "but at least you'll be able to sleep at night." - in the light of ninon's post? Do you really think that it is for the lawyer rather than the judge and jury to decide on guilt?
    Offline

    15
    ReputationRep:
    (Original post by jacketpotato)
    Would you care to defend this statement?
    No, of course it's not for the individual barrister to decide on the 'guilt' of a defendant - if that were the case, I'm sure we'd have seen a huge precedent in miscarriages of justice; however, moral obligation would dictate myself to refuse to accept a case where the defendant is clearly in breach of the law. There is no reason for a barrister to take on such a case other than to harbour a greater reputation in legal circles or, sadly, for sheer gluttony when it comes to the financial aspect. Nevertheless, it's difficult for me to speculate and say I'd flatly refuse any case were I to become a lawyer in the future (assisted suicide cases etc.), however, I would find it particularly troublesome knowing that I would be defending in contempt of the law.
    Offline

    0
    ReputationRep:
    (Original post by TheMeister)
    moral obligation would dictate myself to refuse to accept a case where the defendant is clearly in breach of the law ... I would find it particularly troublesome knowing that I would be defending in contempt of the law.
    I think the point people are trying to make is that legal guilt and moral guilt are not the same, and lawyers of all people should understand this distinction and be comfortable with it. Even if they have privately confessed to a crime, the defendant is legally innocent until proven guilty and guilt is proven in court by a either a plea or a verdict of "guilty, your Honour". If neither of these things has happened, we cannot say that someone is guilty. You would not necessarily be in "contempt of the law" (whatever that is) if you defended someone who had told you they were guilty, as long as you didn't mislead the court - Ninon has explained this brilliantly.

    I don't think the court setting is even designed to establish absolute truth, but rather to decide what facts can be believed beyond reasonable doubt, which isn't at all the same thing. Only those facts can be taken into account when the jury decide their verdict.

    I would say that lawyers shouldn't make immoral decisions, but may quite often have to act amorally - which is not the same as acting unethically.
    Offline

    15
    ReputationRep:
    (Original post by DaisyEmma)
    I think the point people are trying to make is that legal guilt and moral guilt are not the same, and lawyers of all people should understand this distinction and be comfortable with it. Even if they have privately confessed to a crime, the defendant is legally innocent until proven guilty and guilt is proven in court by a either a plea or a verdict of "guilty, your Honour". If neither of these things has happened, we cannot say that someone is guilty.

    Even then, the court setting is not designed to establish absolute truth, but rather to decide what facts can be believed beyond reasonable doubt. Only these facts can be taken into account when the jury decide their verdict.

    I would say that lawyers shouldn't make immoral decisions, but may quite often have to act amorally - which is not the same as acting unethically.
    That's a much better explanation of the way I feel - :congrats:
    Offline

    0
    ReputationRep:
    Thanks, though I've now edited it a bit for clarity - sorry.

    I'm not sure we're in agreement though - I think I would feel OK about defending someone who had confessed their [moral] guilt to me. I don't think it would feel very different to defending someone who I personally disliked. I guess it depends on the crime though - if someone who was being charged with rape looked me in the eye and said "actually, I've raped several women - I can't help myself" I might feel rather uncomfortable about facilitating their release back into society. Ninon, what would you do in that situation? Encourage the client to plead guilty?
    Offline

    1
    ReputationRep:
    (Original post by python38)
    Wow, thanks very much for taking the time to write such a detailed explanation ! That pretty much cleared up most of the doubts I had. Just one thing - do the ethical rules you mentioned apply to solicitors, too? (I'm not sure which career path I would prefer to follow, you see.)
    You are most welcome.

    Solicitors are bound by a different code of conduct. There are areas of overlap. Chalks may be able to shed further light on the subject.

    (Original post by TheMeister)
    No, of course it's not for the individual barrister to decide on the 'guilt' of a defendant - if that were the case, I'm sure we'd have seen a huge precedent in miscarriages of justice; however, moral obligation would dictate myself to refuse to accept a case where the defendant is clearly in breach of the law. There is no reason for a barrister to take on such a case other than to harbour a greater reputation in legal circles or, sadly, for sheer gluttony when it comes to the financial aspect.
    I strongly disagree with this statement. Most criminal defence work is neither glamorous nor well paid; particularly at the junior end. I have acted in cases where I have barely broken even by the time my travel costs and clerks fees have been factored in.

    As stated above I take on criminal defence work because my code of conduct obliges me to. The cab rank rule ensures that everyone has access to independent legal advice. It is very, very rare indeed that a client does reveal to you that they have committed the crime with which they are charged. I may sometimes suspect that my client is guilty; however it is not for me to make that judgment. I cannot refuse to act for someone I suspect to be guilty, nor can I refuse to act on the basis that someone is of a particular race, or religion, or of a political creed with which I disagree.

    My practice is mostly civil and family but I also do some criminal work, both prosecuting and defending. Neither position is morally neutral. I have prosecuted an alleged assault on a police officer who had clearly used very excessive force in executing an arrest – not a pleasant situation to be in and I was rather relieved when the Defendant was acquitted.

    The criminal justice system is overwhelmed with people with people who are impoverished, deprived, or mentally unwell. There are career criminals but there are also those who have had a momentary fall from grace, or made an error of judgment. Sometimes the alleged victim will have a string of previous convictions to rival the defendant’s. It is not a black and white situation.

    (Original post by DaisyEmma)
    I guess it depends on the crime though - if someone who was being charged with rape looked me in the eye and said "actually, I've raped several women - I can't help myself" I might feel rather uncomfortable about facilitating their release back into society. Ninon, what would you do in that situation? Encourage the client to plead guilty?
    That is a very difficult situation. I will advise a client of the strength of the case against them and of the credit to be gained for a guilty plea. The client’s plea is a matter for them and it would not be proper for me to pressurise a client to plead guilty. If they insisted on maintaining a not guilty plea, but had informed me that they had committed the offence in question, I would inform them that my overriding duty to the court constrained me from doing anything other than testing the evidence against them and invite them to consider whether they wanted alternative legal representation. If I was being asked to do more than test the evidence, I would withdraw.

    This is precisely the sort of situation in which I would call the Bar Council ethics line and speak to a senior member of Chambers.
    Offline

    0
    ReputationRep:
    (Original post by python38)
    I'm considering applying to study Law at university and a legal career interests me, but I was wondering: if you're a barrister or a solicitor, do you ever have to make "immoral" decisions?

    Suppose, say, you were a solicitor, and a client told you they were guilty of something, couldn't you advise them not to plead guilty, and then they might be acquitted?

    Or you were a barrister, a client told you they were guilty of something, but they ended up not pleading guilty, you defended the fact they weren't guilty, and they were acquitted?

    Do barristers and solicitors ever have to make decisions that would be considered ethically wrong just to win a case?

    I really like what I've heard so far of the legal profession, except for the fact I'm not sure how much a lawyer has to bend or ignore the truth. Surely, it's not just a win-the-case-at-all-costs kind of job?

    Thanks.
    I've just finished 3 weeks of work experience in a London solicitors firm and observed exactly what decisions these solicitors made; they were taking on all sorts of clients with different situations (some guilty, some not) and only offered advice suitable to the situation i.e. if the client was up against concrete evidence of guilt, the solicitor would advise a plea of guilty, if the evidence is questionable, the solicitor would advise a plea of not guilty - but this advice is only offered in compliance with the rules of conduct ergo the question you have asked (...couldn't you advise them not to plead guilty, and then they might be acquitted?) would only arise if the solicitor believed the evidence could be defeated, otherwise there would be a risk of misconduct since the solicitor knew that the client was guilty.

    During this work experience I also shadowed barristers in court. In the second scenario (a client told you they were guilty of something, but they ended up not pleading guilty, you defended the fact they weren't guilty, and they were acquitted?) the barrister would have to provide the best defence possible for the client in order to comply with the rules of professional conduct. Therefore should the client admit to the crime but then plead not guilty the barrister would be obliged to follow instructions and present a viable defence since the client remains in control of their case throughout the trial.

    So to answer your question lawyers do make immoral decisions but only in order to comply with the instructions received from their clients esle they would conflict with their rules of professionalism.
    Lawyers don't tend to bend the truth the tend to interpret it in a different way in order for it to fit their case which is exactly what using the law is all about - interpretation of law. And you're right, it's not a win-at-all-costs kind of job; in fact it is rather interesting and you should continue to consider following a legal career
    Offline

    15
    ReputationRep:
    Offline

    0
    ReputationRep:
    (Original post by TheMeister)
    Hence why I if I graduate in Law (as I'd like to), I'd try my hardest to try to work for the CPS. The money isn't as good (by a good margin) as it would be in a private practice, but at least you'll be able to sleep at night.
    Or you could simply not go into criminal law. There are so many other areas and if you want to sleep at night, criminal is not the area to choose, in my opinion.
    Offline

    19
    ReputationRep:
    (Original post by TheMeister)
    No, of course it's not for the individual barrister to decide on the 'guilt' of a defendant - if that were the case, I'm sure we'd have seen a huge precedent in miscarriages of justice; however, moral obligation would dictate myself to refuse to accept a case where the defendant is clearly in breach of the law. There is no reason for a barrister to take on such a case other than to harbour a greater reputation in legal circles or, sadly, for sheer gluttony when it comes to the financial aspect. Nevertheless, it's difficult for me to speculate and say I'd flatly refuse any case were I to become a lawyer in the future (assisted suicide cases etc.), however, I would find it particularly troublesome knowing that I would be defending in contempt of the law.
    If someone is clearly in breach of the law, they are going to be found guilty whether you defend them or not. But they will still have a story to tell which is relevant to sentencing. Even the worst murderer will have something to say - whether it be a messed up upbringing or serious mental health problems. Putting forward someone's side of the story is not "contempt of the law" - our legal system works by giving both sides a chance to put forward their case.

    To say that there is no reason to hear it is shocking to me - this is exactly how thousands of people were drowned and burnt for witchcraft - people thought they were "obviously" guilty and so saw no reason to listen to anything the witches had to say. Simply put, if you are prepared to convict people willy nilly without having someone to put forward their side of the story, then you are not fit to be a criminal lawyer in this country - both morally and as a matter of rules of conduct.

    (Original post by DaisyEmma)
    Even then, the court setting is not designed to establish absolute truth, but rather to decide what facts can be believed beyond reasonable doubt. Only these facts can be taken into account when the jury decide their verdict
    Of course the court is designed to establish the truth. It is designed to establish whether or not someone committed a particular crime; decided by a jury. All facts are taken into account whether they individually are beyond reasonable doubt or not - the case is taken as a whole to see whether X is guilty of the given crime or not. You seem to be under the impression that we have quirky rules of evidence which stop relevant facts being pleaded - we don't. You can't start imprisoning people where there is doubt as to whether they are guilty or not.

    (Original post by Kate2416)
    Or you could simply not go into criminal law. There are so many other areas and if you want to sleep at night, criminal is not the area to choose, in my opinion.
    Most people who do criminal do it because it helps them sleep at night. It is poorly paid compared to other areas; but nearly everyone I've come across who does it says that it is extremely rewarding.

    This emphasis on the idea of someone who privately tells you they are guilty is ridiculous - its completely hypothetical. Even if such scenarios actually existed, without further evidence you don't know whether that person is sane or telling the truth. People can't be convicted on the basis of hearsay.
    Offline

    15
    ReputationRep:
    (Original post by jacketpotato)
    If someone is clearly in breach of the law, they are going to be found guilty whether you defend them or not. But they will still have a story to tell which is relevant to sentencing. Even the worst murderer will have something to say - whether it be a messed up upbringing or serious mental health problems. Putting forward someone's side of the story is not "contempt of the law" - our legal system works by giving both sides a chance to put forward their case.

    To say that there is no reason to hear it is shocking to me - this is exactly how thousands of people were drowned and burnt for witchcraft - people thought they were "obviously" guilty and so saw no reason to listen to anything the witches had to say. Simply put, if you are prepared to convict people willy nilly without having someone to put forward their side of the story, then you are not fit to be a criminal lawyer in this country - both morally and as a matter of rules of conduct.
    You've completely misunderstood what I meant, never mind. I shall remove this from my watchlist. :sigh:
    Offline

    1
    ReputationRep:
    Ninon is absolutely right in what s/he says, and jacketpotato is on the ball too. I simply want to add a comment on morality.

    I believe that what I do is moral. The moral issue is not the masturbatory one about how I feel. That is not a moral issue - it is an issue about preferring self-comfort above anything else. That is where TheMeister goes wrong (and why they will never be a barrister unless they can understand their error).

    The moral issue is about society. The question is how we deal with the bad, the sick, the dangerous and the psychotic. Any society can deal decently with reasonable people. The test comes when bad people are in the frame.

    The selfish mindset says, 'I know this person is bad and has broken the law. I cannot, in conscience, defend them'. The moral mindset says, 'The ultimate test for a society is whether everyone is entitled to the same opportunities and are subject to the same punishments. Therefore I will defend this person'.

    On analysis, the mistake made by the selfish person is that of presumption. Rather that entrust the decision to Judge and jury - as the law and society demands - they choose to make the decision themselves, pre-empting the Judge and jury, condemning the accused and (all too often) feeling a glow of self-righteous pride in their decision.

    But there is nothing moral in refusing a fellow citizen the rights to which you are entitled and would claim in a heartbeat, were it necessary. That is profoundly immoral.

    Thus - lawyers do not make immoral decisions (if they are doing their job properly). They make uncomfortable ones, which are easy to mischaracterise and can be attacked by people who can't be bothered to work a difficult topic through, or who just cynically like to bash others.
    Offline

    0
    ReputationRep:
    People always seem to forget that the rights of defendants are of paramount importance in a criminal trial. This is a worrying trend, with even Tony Blair a few years back saying that 'the ultimate miscarriage of justice would be for a guilty man to walk free.' The very opposite. It is the ultimate miscarriage of justice for an innocent man to be punished, and as has been said above, even the guilty deserve a decent defence - it's what our legal system is founded on. Helena Kennedy dealt with this very debate in her Hamlyn Lecture, if you are interested then I would highly recommend you read it (it's very short and accessible). What ninon, jacketpotato and Simon have written is absolutely correct.
    Offline

    17
    ReputationRep:
    (Original post by Kate2416)
    Or you could simply not go into criminal law. There are so many other areas and if you want to sleep at night, criminal is not the area to choose, in my opinion.
    I second this. I would say that the majority (99%) of the people I know are going into commercial, not criminal law. Of course lots of other immorality issues arise in the business sphere, however none have been discussed in this thread.

    xx
 
 
 
Poll
How are you feeling in the run-up to Results Day 2018?
Useful resources

The Student Room, Get Revising and Marked by Teachers are trading names of The Student Room Group Ltd.

Register Number: 04666380 (England and Wales), VAT No. 806 8067 22 Registered Office: International House, Queens Road, Brighton, BN1 3XE

Write a reply...
Reply
Hide
Reputation gems: You get these gems as you gain rep from other members for making good contributions and giving helpful advice.