peterr@utcsrgv.UUCP (Peter Rowley) (08/23/83)
A good reason for feeling less than sanguine about the legal profession appears to be inherent in the adversarial system. They work for their clients, whether those clients act legally or not. As I understand it, lawyers are protected from being asked about crimes committed by their clients, and this seems reasonable. But it means that "winning the case" takes precedence over the outcome for society, because that is the only avenue of expression for the lawyer. S/he CANNOT take the inside evidence and judge the case; that's the jury's job. Thus information that may well demand a verdict of guilty is witheld by lawyers, as a normal part of their job. Worse, it appears that this "the client is always to be defended" attitude may cause some lawyers to counsel their corporate clients in circumventing or even breaking the law, to the clear detriment of society. An example of this would be a lawyer reviewing court settlements in auto accident cases to come up with an expected cost figure of defective brakes to compare to the cost of recalling the cars involved. I'd be delighted to hear of ethical codes that prevent lawyers from doing such things, and instances where lawyers have been disbarred for such activities. Most complaints about lawyers in this group seem to be that they act only to generate business for themselves. To summarize this article, there can be a lot of anti-social activity when they simply do their job of defending their clients, who come to them.
dave@utcsrgv.UUCP (Dave Sherman) (08/23/83)
Peter Rowley has suggested that lawyers act unethically to protect
their clients. In Ontario that is simply *not permitted*.
The Rules of Professional Conduct are quite clear about this.
The lawyer must "represent his client resolutely, honourably,
and within the limits of the law" (Rule 8).
"The lawyer must not, for example:
...
(b) knowingly assist or permit his client to do anything
which the lawyer considers to be dishonest or dishonourable;
...
(e) knowingly attempt to deceive a tribunal or influence the
course of justice by offering false evidence, mis-stating
facts or law, presenting or relying upon a false or deceptive
affidavit, or otherwise assisting in any fraud, crime or
illegal conduct.
(Rule 8, Commentary 1)
2.(b) if the client desires that a course be taken which would involve
a breach of this Rule, the lawyer must refuse and to everything reasonably
possible to prevent it. If he cannot do so he should ... withdraw or seek
leave to withdraw [from acting for the client]. (Rule 8, Commentary 2).
Peter suggests that "lawyers are protected from being asked about crimes
committed by their clients". Well, in most cases they have no personal
knowledge (being told by the client is not "personal knowledge") so it
wouldn't be admissible in evidence anyway. However, there is also
a strict principle of confidentiality, so that clients can tell their
lawyers things in confidence, with the assurance that they won't be
passed on to the authorities.
Rule 8, Commentary 9 provides:
... if the accused clearly admits to his lawyer the factual and mental
elements necessary to constitute the offence, the lawyer, if convinced
that the admissions are true and voluntary, may properly take objection
to the jurisdiction of the court, or to the form of the indictment, or
to the admissibility or sufficiency of the evidence, but he may not
suggest that some other person committed the offence or call any evidence
in support of an alibi...
========================
Obviously, there are lawyers who are unethical. But from my experience,
most work *within* the system and within the constraints of the Rules
of Professional Conduct.
Bar Admission students take a course on Ethics and Professional
Responsibility during their articling period. They must write an
exam in which they are faced with a number of difficult issues
(such as when the duty of confidentiality and duty of honesty to
the court conflict). They then discuss their answers with their
principal (the lawyer they are articling for).
There are a lot of difficult ethical questions, and some of them aren't
easily resolvable. But to suggest that lawyers have no ethical standards
or Code of Professional Conduct is wrong.
Dave Sherman
The Law Society of Upper Canada
Toronto
--
{allegra,cornell,floyd,ihnp4,linus,utzoo,uw-beaver,watmath}!utcsrgv!lsuc!daveperelgut@utcsrgv.UUCP (Stephen Perelgut) (08/23/83)
I don't believe that the problem was lawyers actually condoning illegal
activities but rather the ethical responsibilities within the legal system.
Even playing the game it is possible for people who have committed illegal
acts to go unpunished due to technical legal reasons. We have all heard many
times about the criminal who escapes on a technicality. Take the U.S.
"Miranda Rights" (please). If a cop sees someone pull out a gun and shoot
someone dead but doesn't read him his rights, does that criminal go free?
I understand fully why there are technicalities. (Keep officials in line and
prevent abuses). And I have heard the stories of people wrongly convicted on
circumstantial evidence. I am just unsure whether technical loopholes should
apply in capital crimes.
[ I am a fan of contract and corporate law, but all criminal defense lawyers
should have one finger chopped off for every technicality they invoke :-) ]
--
Stephen Perelgut Computer Systems Research Group University of Toronto
{ linus, ihnp4, allegra, floyd }!utcsrgv!perelgutrcj@burl.UUCP (08/26/83)
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ .... But it means that "winning the case" takes precedence over the outcome for society, because that is the only avenue of expression for the lawyer. S/he CANNOT take the inside evidence and judge the case; that's the jury's job. Thus information that may well demand a verdict of guilty is witheld by lawyers, as a normal part of their job. Worse, it appears that this "the client is always to be defended" attitude may cause some lawyers to counsel their corporate clients in circumventing or even breaking the law, to the clear detriment of society. An example of this would be a lawyer reviewing court settlements in auto accident cases to come up with an expected cost figure of defective brakes to compare to the cost of recalling the cars involved. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ If you want a very poignant statement about this very issue, catch "And Justice for All" starring Al Pacino the next time it comes around. In one scene (I hope I am remembering correctly), Al Pacino (a trial lawyer) is at his girlfriend's apartment when a friend of his (also a trial lawyer) comes staggering into the apartment very drunk. It turns out that he has just won "The Big Case", but he almost gets hysterical when they try to congratulate him -- he got the guy off on a technicality even though he knew that the guy was guilty (murder), and he had gone out on the street and almost instantly killed someone else. Another good point was brought out when Al Pacino was threatened with disbarment (is that a word?) because he helped the police track down a killer. The guy was an old client of his, and he recognized the fellow's MO and gave the police leads on where to find him. This, to the legal profession, is known as "violating confidence"; it has its merits because it prevents people from being hassled unnecessarily. But isn't there a time to draw the line (i.e., use good common sense)? My only other rather-non-related point is a reply to Dave Sherman's analogy of saying that a C programmer who uses fancy structures and pointers that are incomprehensible to the novice is analogous to the point many people are trying to make about lawyers. Partially true, but the question *CONSTANTLY* needs to be asked: Are the C Programmer's fancies enhancing the speed, decreasing the size, or doing something desirable to the program? Or are they there simply for show? Think about it, -- The MAD Programmer -- 919-228-3814 (Cornet 291) alias: Curtis Jackson ...![ floyd sb1 mhuxv ]!burl!rcj