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CJ 482 [Ethics

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  • 1.
    • ETHICS AND LEGAL
    • PROFESSIONALS
    • Lecture Slides prepared by Mark Kellar
    AJ 482
  • 2. “ First . . . , Let's Kill All the Lawyers . . .”
    • The public has little confidence in lawyers’ ability to live up to ideals of equity, fairness, and justice
    • Both Plato and Aristotle condemned the advocate’s ability to make the truth appear false and the guilty appear innocent
    • The lawyers’ ability to argue either side of an issue raises a level of distrust
    • The law can be a tool of oppression or a sword of power; lawyers and judges are the ones who wield its power
  • 3. The American Bar Association set ethical guidelines for lawyers in its Model Rules of Professional Responsibility 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
  • 4. 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
  • 5. LEGAL AGENT vs. MORAL AGENT
    • Being a purely legal advocate is inconsistent with being a moral person
    • Pure legal agents sacrifice values of truthfulness, moral courage, benevolence, trustworthiness, and moral autonomy
    • To maintain individual morality, a lawyer must be a moral agent as well as a legal advocate
  • 6. 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
  • 7. 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
  • 8. A HIGHER STANDARD of BEHAVIOR?
    • Most agree that lawyers, like police officers, should be held to a higher standard of behavior.
    • Some allege that, instead, lawyers allow themselves a double standard, to wit:
        • Lying is lying unless it is done by a lawyer
        • Even then, it is just doing one’s duty, a mere “misstatement of fact” made in the client’s interests
  • 9. DEFENSE ATTORNEYS
      • Defense attorneys are often in the position of defending clients they know are guilty
      • A lawyer is supposed to assist clients without regard for personal preference or interest
      • People with unpopular causes and individuals who are obviously guilty still deserve counsel
      • It is the ethical duty of an attorney to provide such counsel
  • 10. DEFENSE ATTORNEYS
        • 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
  • 11. DEFENSE ATTORNEYS By rule, an attorney cannot allow perjury by the defendant If perjury occurs before the attorney realizes the client’s intent, the defense must not use or refer to the perjured testimony If a defendant commits perjury but the attorney does not know it is perjury, might this lead to a “don’t ask, don’t tell” mentality?
  • 12. DEFENSE ATTORNEYS
        • Conflicts of Interest:
          • Attorneys must not represent clients whose interests conflict with those of the attorney
          • Attorneys must not represent two clients with opposing interests
        • If a heavy caseload compels an attorney to advise his or her client to accept a plea bargain instead of going to trial, has the attorney violated prohibitions against conflict of interest?
  • 13. DEFENSE ATTORNEYS
    • Zealous Defense:
      • Defense counsel is the client’s professional representative, not the client's alter ego
      • Aggressive advocacy sometimes involves the use of ethically questionable tactics
      • Some attorneys go to great lengths to choose a sympathetic jury. Is it ethical to “stack” a jury in favor of the client’s position?
  • 14. DEFENSE ATTORNEYS
    • Resolving Ethical Dilemmas:
    • The situational model weighs each case on its particular factors
    • The systems model considers the guiding ethical rule to determine rightness or wrongness of a behavior
  • 15. PROSECUTORS Must seek justice, not convictions Have discretion to charge or not charge defendants —one of the most important decisions in the criminal justice process The decision to charge: • May be influenced by politics • Is especially sensitive in capital cases
  • 16. PROSECUTORS
    • Factors Influencing the Decision to Prosecute:
          • Legal sufficiency
          • System efficiency
          • Defendant rehabilitation
          • Trial sufficiency
  • 17. PROSECUTORS
    • Conflicts of Interest:
          • Problems related to part-time prosecutors
          • Problems related to a prosecutor’s political aspirations
          • Problems related to asset forfeiture laws
  • 18. PROSECUTORS
    • Plea Bargaining:
      • Is considered by most to be efficient and probably inevitable, if not exactly “right”
      • Makes sense if the goals of the system are crime control or bureaucratic efficiency
      • Is harder to justify if the goals of the system are due process and protection of individual rights
  • 19. PROSECUTORS Media Relations: No out-of-court statements should be given that would materially prejudice a proceeding Statements regarding the general nature of the charge and information that is public record are permissible
  • 20. PROSECUTORS Expert Witnesses: May provide testimony based on principles generally accepted in the scientific community Benefit from a halo effect when their expertise in one area results in their receiving deference in other areas Lose credibility after gaining a reputation as a “hired gun” by always appearing on one side of an issue
  • 21. PROSECUTORS The prosecutor’s goal is the achievement of justice, not the achievement of convictions Zealous pursuit of justice is desirable, even commendable. Overzealousness that leads to prosecutorial misconduct is reprehensible Prosecutorial misconduct may include: • Improper communication with the defendant • Ex parte communication with the judge • Failure to correct false testimony • Failure to disclose evidence
  • 22. PERCEPTIONS of JUDICIAL PROCESSING
    • The American justice system is based on an adversarial model
    • The ideal: two advocates of equal ability pursue truth, guided by a neutral judge
    • Most defendants are represented by inexperienced advocates with large caseloads and insufficient time to spend with each client
    • The practice of law has been called a confidence game
    • Although attorneys appear to wage a battle against each other to achieve justice, for many, their primary allegiance is not to the client, but to themselves
  • 23. Bureaucratic Justice: The system’s goal—bureaucratic efficiency—often supplants the original goal—justice. While not intentionally discriminatory, the policies and procedures of bureaucratic justice may cause perceptions of unfairness Plea bargaining is consistent with bureaucratic justice, as it achieves maximum punishment for minimum work PERCEPTIONS of JUDICIAL PROCESSING
  • 24. The Wedding Cake Model: The largest portion of cases are the cake’s bottom layers The few "serious" cases are the top layer The few high profile cases at the top of the cake exemplify “text book” justice The bottom of the cake represents the majority of cases, in which defendants may meet with an attorney only once or twice immediately before agreeing to a plea arrangement PERCEPTIONS of JUDICIAL PROCESSING
  • 25. JUDICIAL ETHICS
    • The ABA’s Model Code of Judicial Conduct identifies ethical considerations unique to judges
    • The Code’s canons address:
      • Impropriety and the appearance of impropriety
      • Impartiality and diligence
      • Personal affairs
      • Extra-judicial activities
      • Political activities
    • Examples of ethical thin ice:
      • Campaign contributions from attorneys
      • Assigning indigent cases to one’s friends
  • 26. JUDICIAL DISCRETION
    • Occurs in two major areas:
    • Interpretation of the law
    • Sentencing
    • Interpretation of the law includes:
    • Ruling on admissibility of evidence
    • Ruling on objections during trial
    • Writing critical jury instructions
  • 27. JUDICIAL DISCRETION
    • Interpretation of the law may necessitate invoking the exclusionary rule.
    • A fair society cannot accept a conviction based on tainted evidence
    • Thus, illegally obtained evidence cannot be used (is excluded ) at trial
    • This serves to discourage police from breaking the law in a misguided effort to enforce the law
    • Some exceptions are allowed, including:
      • Public safety
      • Good faith
      • Inevitable discovery
  • 28. JUDICIAL DISCRETION Sentencing raises unique ethical issues Is there a single acceptable punishment for a certain type of offense or offender? Does justice depend on community opinion of the crime, the criminal, and the proposed punishment? Sentencing inconsistencies occur between individual judges in the same community Mandatory sentences, published as Sentencing Guidelines , require the judge to impose a specific sentence unless there is a proven mitigating or aggravating factor in the case
  • 29. JUDICIAL MISCONDUCT Judicial misconduct is rare, but does occur Neutrality is questioned when judges voice strong opinions on issues or cases A judge may recuse him/herself if he/she has a vested interest in the issue or one of the parties involved Often the mere appearance of impropriety is sufficient to warrant recusal Lack of courtroom decorum could, in extreme cases, represent judicial misconduct
  • 30. JUSTICE ON TRIAL?
    • False convictions have occurred due to:
        • Eyewitness perjury
        • Ineffective counsel
        • False confessions
        • Police misconduct
        • Fabrication of evidence
        • Misuse of forensics
        • Racial bias
  • 31. JUSTICE ON TRIAL?
    • Examples of ineffective counsel in capital cases:
        • Attorney use of heroin and cocaine during trial
        • Attorney letting defendant wear the same clothes described by victim
        • Attorney admitting that he didn't know the applicable law or the facts of the case
        • Attorney not being able to cite a single death penalty case holding
        • Attorney drinking heavily each day of the trial
  • 32. JUSTICE ON TRIAL? Eyewitness testimony remains problematic Most experts regard eyewitness testimony as subjective and unreliable Despite widespread mistrust of eyewitness testimony, the judicial system continues to place tremendous reliance on it
  • 33. JUSTICE ON TRIAL? Although not common, errors do occur, resulting in the conviction of innocent defendants This does not necessarily suggest that the system is fundamentally flawed Judicial oversight during trial prevents most errors Elaborate appellate mechanisms exist in all states and the federal system to rectify identified errors
  • 34. INNOCENCE PROJECTS Innocence projects are recent movements to reexamine cases where there is a possibility that serious errors may have occurred Funded by private individuals and groups Some argue that a governmental agency, rather than volunteer or private organizations, is needed Great Britain's Criminal Cases Review Commission is an existing model
  • 35. JUDICIAL INDEPENDENCE and the CONSTITUTION
        • Judges wield great discretion, and usually exercise it fairly and ethically
        • Judges are sometimes driven by extremist positions such as blatant racism or sexism
        • The system provides for appellate review and even impeachment to counter extreme or recurring malfeasance
        • Like the rest of us, judges are grounded in their personal ethical belief system
        • Well-intentioned individuals may, and often do, disagree concerning specific application of ethical principles
  • 36. JUDICIAL INDEPENDENCE and the CONSTITUTION
        • An independent judiciary is a fundamental tenant of the American governmental system
        • But judges are not completely independent, as they must either stand for election or be appointed (or reappointed) by the jurisdictional executive
        • Conservative judges — strict constructionists — support individual rights specified in the Constitution or created by some other recognized legal source
        • Generally, conservative judges believe judges should limit their role to interpreting the law rather than using their position to “make” law
  • 37. JUDICIAL INDEPENDENCE and the CONSTITUTION
        • Liberal judges — interpretationists — support rights that the Framers might have recognized or that should be recognized due to "evolving standards"
        • Generally, liberal judges believe judges should use their position to expand their interpretation of the law into a reasonable application beyond the exact language used
  • 38. THE UNITED STATES SUPREME COURT The Court’s immense power makes it politically crucial for both conservatives and liberals to try to exert control over it The current Court tends toward moderation, with many decisions resulting from five-to-four votes, thus making every vote critical to both political perspectives Every vacancy results in fierce political battles over the candidates Historically, the assumption that certain justices will vote a specific way on specific issues is inaccurate Justices are guided by common-law doctrine, the Constitution, and their individual ethical orientation, in addition to political considerations