CHAPTER 8:

Law and Legal

Professionals

Lecture Slides prepared by Cheryn Rowell

 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.
 Protection from Harm

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.
 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)
 Protection From Self (Paternalism)

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.
 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.
 Protection of Morals (Moralism)
 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.
 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.
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.
 Perceptions of Judicial Processing
A “Confidence Game”:
Advocacy a pretence
Individualized justice a pretence

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

The Wedding Cake Model:

The few "serious" cases are the top layer
Bottom of the cake represents the majority of cases
Bottom receive mere token of justice process
 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.
 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.
 Rules of the Justice Game (Dershowitz)

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.

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).
 Rules of the Justice Game (Dershowitz)

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 Attorney-Client Relationship

 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.
 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
 Ethical Standards for Lawyers
Model Code of Professional Responsibility
Model Rules of Professional Responsibility
Restatement of Law Governing Lawyers
Criminal 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.
 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

 ABA’s Model Code of Judicial Conduct
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.”