The Moral Responsibilities of Lawyers
It seems that the StopTheACLU blog and the Volokh Conspiracy are having a little tiff about this week’s blogburst. He has a problem with this post in particular.
ACLU critics call the organization pro-terrorist, pro-pedophile, anti-Christian, etc. Volokh takes exception, particularly in calling the lawsuits frivolous. For that, he has a point. Frivolous is ALWAYS the term that lawyers use to describe their opponents arguments and it has become largely devoid of value. I also don’t think that suing New York to stop random searches is driven by a pro-terrorist agenda. I think it is largely parsing words and playing on fears. We can be searched going into airports, government buildings, and for that matter, public schools. But the ACLU thinks the Republic is collapsing searching people going on trains. It is a silly argument but in the end, it is also a silly policy. Quite often our counterterrorist policies are designed to prevent the LAST attack, not the next one. However, I digress.
The fundamental issue people have with the ACLU and that Eugene Volokh doesn’t get (nor do lawyers) is that we recognize that the ACLU shapes the law and lawyers insist they are not involved with lawmaking or shaping the law. On this count, Volokh is wrong. Lawyers are most certainly involved in lawmaking, law shaping, and imposing social change via the law. We’ll overlook that all judges are lawyers and that the bulk of legislators are lawyers as well.
The way our judicial system works is that largely you can do anything you want until you are challenged on it (either criminally or in civil court). Then a judge decides between which two sets of legal arguments he buys and that becomes case law. When the Supreme Court does this, it becomes the de facto law of the land. Lawyers may insist that they don’t shape or make the law, but I think this is largely an attempt to exonerate them from any social responsibility for their actions.
Remember the Twinkie defense? That was invented by a lawyer who managed to convince 12 people that it was legitimate to slide his client who had apparently killed someone into an insanity defense. How about Roe v Wade? That wouldn’t be the law of the land because of Norma McCorvey (Roe). It became the law of the land because two lawyers found her, took her situation, and argued in front of the Supreme Court that things should be different. One could say that the Court decided, so they bear the responsibility but if it weren’t for the lawyer’s arguments and initiative the case wouldn’t ever be heard. The lawyers do play a part in shaping and creating law.
Also, a common tactic of lawyers is to price the other side out of the game. If the other side doesn’t have the money to defend themselves, they lose. This happens frequently with cash strapped school districts. The ACLU shows up and to prevent a lawsuit they school caves, even if they could successfully defend the suit. The ACLU can shape policy simply because it is too costly to fight them.
Lawyers are officers of the court and they serve a particular purpose in our society. They do, I would argue, have higher responsibilities than simply advocating and fighting for their clients. Lawyers have created a litigation climate where there is no such thing as an accident; only a right to collect money from whomever has the deepest pockets. The vigorous defense of rapists has led to women not coming forward and pressing charges because the lawyer will simply keep calling the woman a whore and put her sex life on trial. Our criminal system is less a measurement of guilt and innocence than a measurement of whether the police follow every single mundane procedure (some legitimate, some outright dumb) and if the police slip up, criminal walks.
Volokh argues that if cases are decided in favor of the ACLU then the law is at fault, and people should change the law. Thinking like this has given us a tax code that is incomprehensible to many lawyers, much less normal citizens. People can’t figure out what they owe without paying someone to figure it out for them. In order to sign up for a Hotmail account, I have to agree to 15 pages of contracts (assuming I found all the ones that are on the website).
Lawyers hide behind their clients saying they are simply vigorously defending their client’s interest. Society would be better off if lawyers realize that they have an obligation to society to create a fair and just system. It is time lawyers stop hiding and absolving themselves of responsibility and acknowledge that they have ethical responsibilities beyond lining their pockets with 40% of multi-million dollar judgments.
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Very well said.
Comment by Jay | August 5, 2005
While I’m not sure if I completely agree with you, you have a point.
One of the most mind numbing aspects of the law is, in fact, that lawyers are trained ultimately to suspend their viewpoints as a moral compass (at least if they are conservative viewpoints) in favor of representing the client. In a way, we are much like the Prussian General Staff. We figure that as long as we follow orders and fight for the cause we’ve been handed, we really do not need to consider the morality of it. Just like Prussian, and later German, officers believed that they could be moral persons, even while serving an immoral cause, as they were professionals following orders.
And that’s the disturbing nature of it.
Comment by Yeoman | August 6, 2005
Spot-on observations, John. While in our legal system everyone must be innocent until proven guilty, it still stuns and deeply saddens me whenever I hear of a situation where a client who clearly DID IT by every measure of objective evidence still gets off on a technicality… or worse, when lawyers KNOW that their client DID IT by their admission and still press the defense. How can one sleep at night working like that? Simply no conscience? Chilling.
In the case of the ACLU, and especially their use of our imperfect, convoluted, and overly PC legal system in defense of terrorists, this is simply the enabling of another weapon aimed at the heart of the America the ACLU abhors, in order to help create the America that they want: sterile, socialistic, athiestic, and certainly not democratic.
Comment by The MaryHunter | August 6, 2005
I think equating protection of civil rights with enabling terrorists is missing the point about our constitutional guarantees.
When a lawyer defends someone who DID IT, as you say, and gets the defendant off on a technicality, he is doing his job. The law is a by-the-book type of thing. The government must meet its burden of proof for any criminal charge - it is one of those contitutional guarantees. As it should be. Perhaps the government should do a better job when going after a criminal - the police should gather better evidence, perhaps? Remember when the government was able to just lock people up because it said the defendant broke the law - no lawyer was allowed to prove otherwise. That was one of those little annoying things that caused us to fight for independence from King George and England. And the basis of the bill of rights tends to reflect that very thing - core values based on personal freedoms and guarantees. It limits what the government can do.
Technicalities are what the law is about, and a lawyer getting a client off that you think is clearly guilty is part of those guarantees. It does not mean the man is innocent - merely that he is not guilty under law. Not a hard concept to understand. What about that man who “clearly did it” who just served 18 years for rape, yet DNA evidence just proved he did not commit the rape - you think he thinks the “clearly did it” from someone would hold up in his eyes?
As far as ethical responsibilities of a lawyer when defending a client, we have an ethical duty imposed BY LAW to defend to the utmost a client regardless of what he/she is charged with. Our licenses can be taken away for failing to do just that. I do agree that not all lawyers are ethical, but most I work with seem to be dedicated to that proposition.
And as for just lining the pockets - you surely jest! Just paying off my student loans is tough - country lawyers don’t make that much - I also defend pro bono client (no money), and I take court assignments that pay next to nothing - just so poor defendants can have their rights protected. A lot of lawyers do this or the entire legal system would grind to a halt.
General statements about an entire class of people tend to be wrong. Some lawyers are unethical; some line their pockets. That does not make all lawyers unethical or rich. Give it a rest with the general mudslinging statements. State facts and specifics.
Comment by maybeso | August 7, 2005
I realize that what John is saying may upset some lawyers, but the fact is, the American people are getting tired of watching criminal after criminal walk free because of dream team lawyers. They are tired of having laws & policies that may save us from another terrorist attack in the future. They are tired of the the PC culture.
The antipathy towards lawyers that was merely in jest once upon a time is starting to become very real. We do need to have lawyers; they do perform an important function. In order for the legal profession to once again regain good standing, it must, like any other profession, police it-self.
Take this post to heart. Mr. Bambenek is trying to save the legal profession, not destory it.
Comment by NYgirl | August 8, 2005
You can’t “save the legal profession” by redefining it into irrelevance.
If we as a society are going to decide that certain accusations are to be considered equivalent to proof of guilt, then there really won’t be any point left in having lawyers.
Perhaps by some definition of “saved”, the legal profession could be saved by redefining its ethical standards to include betrayal of one’s client. But then, by that definition, Western civilization could be saved from the threat of Islamist terrorism by adopting Sharia. It’s easy to “save” yourself by _surrendering_. But that’s not what most of us want.
RESPONSE:
There is a difference between taking accusations as proof of guilt and not engaging in unethical defense tactics. That and there is much more to law than the criminal system.
Comment by Matt | August 9, 2005
I’ve got several comments about the issues raised in this post. Rather than trying to fit them into a comment, though, I’ve got my own post up at:
http://belowbeltway.blogspot.com/2005/08/state-of-legal-profession.html
Comment by Doug | August 9, 2005