Lawyers And Ethics Research Paper

SCENARIO: WHEN IS ATTORNEY-CLIENT PRIVILEDGE RENDERED MOOT? ETHICAL DIMENSIONS

A court-appointed lawyer rather than a public defender is assigned to a murder case in which she must defend a purported murderer. During one of their attorney-client meetings, the suspect discloses that he abducted a five year old boy from a local playground a week prior, murdered him, and buried the boy’s remains behind his abode. After her emotionally-charged meeting with her client, the court-appointed attorney mines through local newspapers in order to gain more knowledge about the purported crime. She finds an article in which the mother of the slain boy pleads to the public for anyone who knows any information about her missing son to please come forward and notify law enforcement so that justice could be served. The attorney thus faces an ethical dilemma in which she must weigh her moral and utilitarian obligations to benefit society at large by punishing a criminal for his heinous crime that he had just confessed to or whether she should preserve the sanctity of attorney-client privilege in which his revelations cannot incriminate him. Indeed, the attorney procured the information from her client in confidence during a privileged and private meeting. Revealing the information would result in her disbarment, but the attorney believes that she has a moral obligation to break attorney-client privilege in such extenuating circumstances. Defending an empirically guilty criminal thus unequivocally raises significant questions about the American legal system and how attorneys should act when they procure damning evidence that their client indeed committed a heinous offense such as capital murder. Fears about legal malpractice often emerge in such contentious and difficult cases (Carey & Brennan, 2004). Nonetheless, deploying the dyadic paradigm of legal guilt versus factual guilt help elucidate both the professional as well as ethical implications of representing a client that the attorney knows is factually and intuitively guilty. By examining past criminal cases at the Supreme Court and the Appellate court levels as well as popular culture and discursive representations, it is unequivocal that despite ubiquitous moral imperatives it is necessary to not only discern crucial differences between factual and legal guilt but also that the criminal justice system in order to function justly and correctly according to Habeas Corpus must sometimes sacrifice legal veracity and a criminal conviction in order to preserve the rudimentary principles that undergird the American criminal justice system and the very principles that protect the inalienable rights of defendants.

ATTORNEY-CLIENT PRIVILEDGE

The etiology of factual guilt often stems from the confession of a client to a defense lawyer who believes he or she is safe from prosecution under the attorney-client privilege (Clemmer, 2008). Legal experts have time and again articulated their steadfast belief that attorney-client privilege forms the bedrock of the legal profession, and all lawyers whether they be court-appointed, public defenders, or those who have their own private practices must uphold and protect this right. However, ethical questions arise if or when a lawyer obtains information that clearly links an accused perpetrator with the crime they are accused of committing. With regards to murder, the attorney is suspended into a state of liminality in which he or she must decide how to act both within an ethical as well as a legal framework (Carey & Brennan, 2004). The lexicon deployed with regards to this sacrosanct attorney-client privilege must be fleshed out in order to understand their applicability as well as their legal currency. The principle of legal confidentiality between attorney and client is explicated in an idiosyncratic fashion according to jurisdiction. It refers to “a fundamental principle in the client-lawyer relationshipthat, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation .This contributes to the trust that is the hallmark of the client-lawyer relationship” (Michmerhuizen, 2007). Any violation of this compact would infract on the legal ethics that attorneys agreed to abide by, thereby resulting in disciplinary action and probable disbarment.
However, legal statutes do exist in extenuating circumstances that provide nuance to this ethical dilemma over attorney-client privilege, which is often referred to as testimonial privilege. This privilege is not absolute, as it solely protects the “essence of the communications actually had by the client and lawyer and only extends to information given for the purpose of obtaining legal representation. The underlying information is not protected it if is available from another source. Therefore, information cannot be placed under an evidentiary ‘cloak’ of protection simply because it has been told to the lawyer” (Michmerhuizen, 2007). Despite this loophole in the wording of legal ethics, it is nonetheless unequivocal that the client-attorney confidentiality pact remains sacrosanct, and thus the attorney is obliged to protect the information shared in private meetings. This principal is applicable not only to issues articulated in confidentiality by the client but also to any news related to any representation of the client whether it emanated from an external source or from the client themselves (Michmerhuizen, 2007).
Indeed, the scope of client-attorney privilege is not straightforward or plain because the rule can be applied to situations apart from the defendant’s verbal exchanges with his or her attorney where its exclusion retains legal currency. Indeed, contingency plays a critical role in ethical dilemmas regarding the defense of the factually guilty. If the client articulates his or her future plans to carry out a nefarious scheme or plan that may harm someone or destroy critical evidence in a crime investigation or engage in perjury and/or any other fraudulent act, the attorney retains the right to intervene without violated the legal code of ethics.

ATTORNEY-CLIENT OBLIGATIONS, ETHICS, AND LEGAL PRECEDENT

As has been reiterated, lawyers who believe unequivocally that their clients are guilty face abominable ethical dilemmas when his or her client push for a vociferous defense despite the odds stacked against them. A defense attorney legally has the responsibility to protect the confidentiality of the client and the information that the client shared with the attorney while also conducting a fervent defense even if such a defense contradicts the attorney’s own moral compass. In the past lawyers have been prosecuted for failing to give law enforcement incriminating evidence against their clients. One example is the Canadian lawyer Kenneth Murray who was accused of obstructed justice for not handing over recoded video of his client committing rapes and murders. He was eventually acquitted, but nonetheless this example demonstrates that the layer’s legal duty to remain steadfastly loyal to their clients regardless of any moral gumption is often complicated. Murray interpreted his legal obligation towards his client in a broader sense than the criminal justice system officials did. As a result, he never turned the video evidence for over a year because he felt bound to respect the confidentiality and loyalty clauses he forged with his client (Clemmer , 2008). Indeed, lawyers cannot succumb to ethical principles in the face of a judicial system that touts itself as affording all presumed criminals due process and the presumption of innocence.

CONCLUSION: POPULAR CULTURE AND THE DISCURSIVE REPRESENTATION OF LEGAL ETHICS

The representation of intelligent and good lawyers in popular culture has taken a variety of forms. Indeed, the moral canon that undergirds Western society articulates an argument that if a suspected criminal has unequivocally committed a crime, then a “good” and moral lawyer should betray the confidentiality compact forged with their client in order to live up to Western standards that are incommensurate with the values espoused in society at large. Indeed, manifestations of popular culture during certain epochs reflect the hegemonic perceptions and beliefs of those who inhabit it. This reflection, no doubt, often skews reality in order to pander to an audience that will yield greater economic profits. Nonetheless, popular culture retains some currency and helps elucidate public perceptions and informs institutional decisions that have significant material and financial consequences. While the concept of justice is contingent on one’s experiences and is a nuanced procedural sentiment, there has nonetheless been a general consensus that conflates justice with truth and rationality. A defense lawyer is charged with the obligation to protect all members of the public from real or perceived danger. It is important to remember that popular culture sanitizes the image of the judicial system in order to proffer a narrative that is incommensurate with reality. A litany of criminal justice shows such as Law & Order have proliferated, yet these representations limnan idyllic version of the actual judicial system. The guilty always confesses as a result of their moral gumption, and seemingly every suspected criminal is indeed guilty f the crime they are charged with. Such visual articulations skew the reality that the judicial process is far more nuanced, complicated and nebulous. Thus, when faced with such ethical dilemmas, defense lawyers appointed by the court must take into consideration how their actions will affect the trajectory of a historically flawed judicial system. Indeed, preserving the inalienable right of Habeas corpus supersedes one’s moral predilections.

References

Banks, C. (2013). The importance of ethics in criminal justice. In
Criminal justice ethics: Theory and practice (3rd ed.). Thousand Oaks: SAGE Publications.
Clemmer, C.D. (2008). Obstructing the Bernardo investigation: Kenneth Murray and the defense counsel’s conflictibg obligation to clients and the court. Osgood Hall Review of Law and Policy, 1, 137-197.
Luban, D. (1983). The Good lawyer: Lawyers' roles and lawyers' ethics. Totowa, N.J.: Rowman & Allanheld.
Michmerhuizen, S. (2007, January 1). Confidentiality, privilege: A basic value in two different applications. Center for Professional Responsibility. Retrieved January 23, 2015, from http://www.americanbar.org/content/dam/aba/administrative
Neil, M. (2013, March 5). Murder defendants may be better off with public defenders than court-appointed lawyers, study says. ABA Journal. Retrieved January 23, 2015, from http://www.abajournal.com/news/article/those_f