Deontological ethics are concerned with the intent of an action without regard to the outcome, while utilitarian ethics are concerned only with the consequences of the action. Some argue that the legal code of ethics is derived from a utilitarian theory, while others argue that it is derived from deontological theory. As deontological ethics are the polar opposite of utilitarian ethics, it should be impossible for legal ethics and the professional code of responsibility to be derived from both.
I argue that the legal codes of ethics are in fact derived from a hybrid of both theories called casuistry. Neither deontological nor utilitarian theory could completely allow for the code of legal ethics we have in place today, while casuistry bridges the divide between the two theories. The American Bar Association has recognized that legal ethics has strayed from normal ethics, when it is supposed to follow the basic mores of society as a whole.
As such, they have revised the code to include instances where it is permissible for lawyers to disclose information furnished by their clients that used to be completely confidential with no exceptions. At the same time, they have made such disclosure acceptable, but not required. This is in order to allow for the lawyer involved to follow his own moral compass in deciding what to do in a particular situation.
The Preamble of the 2009 Model Rules of Professional Conduct states in part “…a lawyer is also guided by personal conscience and the approbation of professional peers…Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living…Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying he Rules. ” Utilitarianism Perspective (Justice-Centered Theory)
Utilitarianism argues that in every situation the morally right thing to do is the action that promotes the greatest happiness for the greatest number of people. A major criticism of this theory is that it is solely concerned with the ends, with no regard for the means in which the goals are achieved. This theory will discount the rights of one or a few people if it will benefit the majority. Prior to the 1930s, there was very little opportunity for a litigant to force an opposing party to disclose information and evidence in advance of trial. Lawyers resisted the reforms that have made virtually all relevant information and evidence discoverable on the ground that such a practice was incompatible with the adversary system. However, they lost, and broad discovery has become an accepted part of what no one doubts is still an "adversary system.
This fact lends itself to the notion that codes and cannons are fluid and are amended frequently to reflect society’s mores and opinions of what constitutes justice. (Simon) The fact that the Bar Association has repeatedly amended its Professional Code to coincide with society’s ethical standards could lead one to argue that the justice system and the professional code is based on the utilitarian theory. This argument would be invalid because the justice system is set up to favor the rights of one (for example, assumed innocent until proven guilty. David Lubman argues that normal ethics should always overrule professional ethics, stating that “the adversary system and the system of professional obligation it mandates are justified only in that, lacking a clearly superior alternative, they should not be replaced. Thus, when professional and serious moral obligation conflict, moral obligation takes precedence. When they don't conflict, professional obligations rule the day. ” (Woolley and Wendel)
Simon also argues in favor of the justice-based model, stating that a lawyer should "take those actions that, considering the relevant circumstances of the particular case, seem most likely to promote justice. " (Simon) Deontological Perspective (Client-Based Theory) Utilitarianism would dictate that a lawyer always act in the best interest of the most people-usually society in a criminal case. Proponents of deontology would argue that if this were the case, there would essentially be no defense attorney because the defense attorney would be bound to disclose any information his client provides him.
Attorneys argue that client confidentiality is the cornerstone of the adversary system. Most of the arguments made by deontologists center around the adversary system. Defense attorneys-who seem to be the majority of lawyers focused on deontology-argue that anything that might harm their client is incompatible with the adversary system, which in the long run is detrimental to society as a whole. Some of the more well known proponents of this theory are Benjamin Freedman, Monroe Freedman, and Charles Fried.
Benjamin Freedman argues that normal ethics and professional ethics are completely separate, and that lawyers should always defer to their professional code when facing a moral dilemma “... in reaching decisions professionals are more constrained by their professional values than are nonprofessionals and, conversely, take into less account those considerations which ordinarily apply. ” (B. Freedman) Charles Fried stresses the moral value of loyalty, and insists that lawyers exhibit unwavering loyalty to clients, whatever their need or situation, taking the interests of clients more seriously than the interests of "the wider collectivity. He argues that lawyers should exercise the law to its fullest extent on behalf of his client, even if this means "procuring advantages for the client at the direct expense of some identified opposing party. ” (Woolley and Wendel) Monroe Freedman goes even further in arguing that our adversary system is set up to sanction lying by the defendant and his lawyer (“a lawyer should remain silent when his client lies to the judge. )
Freedman also argues that it is proper to put a witness on the stand when you know he will commit perjury, stating that the lawyer cannot notify the court that the client intends to lie (because of client confidentiality,) and he would also be unethical by withdrawing from the case. He concludes that “the obligation of confidentiality, in the context of our adversary system, apparently allows the attorney no alternative to putting a perjurious witness on the stand without explicit or implicit knowledge to either the judge or the jury. ” (M. H. Freedman) Freedman’s arguments are largely based on the Cannons of Ethics from 1908.
Many of his arguments can be dismissed out of hand since these Cannons have been amended to omit many of the portions that he cites in his arguments. Lubman argues vehemently against this type of thinking, insisting that “[e]very man is by being a moral agent, a Judge of right and wrong. This general character of a moral agent, he cannot put off, by putting on any professional character.
We must therefore always evaluate role-specific obligations from the perspective of a "pure" moral agent, unencumbered by roles, except to the extent there is a good moral reason for occupying roles and accepting their associated responsibilities. (Woolley and Wendel) If a lawyer views his client’s interests as his only concern and is willing to protect his client’s interests at any cost (even to the detriment of society) then he is nothing more than a hired gun, using his profession to bully others and hiding behind the technicalities of his professional code. Without question, the adversary system requires vigorous and zealous advocacy of clients. Zealous representation of a client is at the heart of a lawyer's ethical duties.
However, the lawyer must stay within the limits of the law when advocating on behalf of his client. The problem occurs when the attorney interprets the rules in a manner that contradicts the entire purpose of the adversarial system. Zealously defending your client does not require or permit you to lie, knowingly allow your client to lie in court, or conceal evidence. The attorneys that purposely interpret the rules in this way are more concerned with "winning" for their clients than following the spirit of the law.
They take the term “adversary system” literally. But what these lawyers forget is that the goal of the adversary system is to discover the truth. Because they are more concerned with winning than discovering the truth, they are not truly in favor of the adversary system; therefore they cannot argue that the deontological theory is in the best interest of society overall. Casuistry: The problem with trying to live purely by consequentialist or utilitarian standards is that there is no middle ground.
Case-based or context-based reasoning allows for more individual decision making because what is legal isn’t always moral and vice-versa. Casuistry allows for the main parts of both consequentialism and utilitarianism, and allows also for one to include their own virtue, character, personal experiences, and practical wisdom in his judgment. Casuistry is not a theory in itself as deontology and utilitarianism are, but it attempts to overcome the divide between deontology and utilitarianism by using pieces of both theories along with the relevant facts.
A criminal trial relies heavily on casuistry; the jury is instructed to only consider the facts of the case at hand and not allow their ideology interfere with their objective decision on guilt or innocence. The more truthful facts the jury has, the more likely they are to come to the correct result. Similarly, I argue that the lawyers should be allowed to look at the facts of the case and not just an arbitrary rule book when deciding how to handle an ethical dilemma. While arbitrary codes of ethics do change to adapt to society’s changing notions of what is “right,” the codes change rather slowly.
The casuist would be able to think more about the specific case at hand and what he knows to be right as opposed to the rule book which may be outdated. The main goal of casuistry is to come to the best possible conclusion, all things considered. Conclusion Professional codes have to intersect with normal moral systems in at least a majority of society’s mores, otherwise there would be no satisfaction for the general public, and they would not partake in the profession.
Further, f a person knows that he would have to give up all of his personal morals in order to join a particular profession, more than likely he would choose another profession. Most people have neither the ability nor the desire to simply turn off the personal moral code that has been instilled in them by family, church, and society in order to get a paycheck. “While it is true that professionals have esoteric knowledge, specialized skills, and special privileges and duties, these traits are not the only marks of professionalism.
Professionals also have a duty to integrate their special knowledge and skills into a proper social and moral framework. ” (Cooper) While proponents of both utilitarianism and deontology make some sound arguments as far as which theory should hold sway over the justice system, neither side is completely right. I argue that a combination of both theories, along with the relevant facts of a specific case should all be considered when trying to decide how to handle a moral dilemma.