A. THE CRISIS IN THE LEGAL PROFESSION Professional code of ethics, distinguish jobs/careers from professions. This idea of a distinct profession - being challenged and this crisis in legal profession is also prevalent in other professions egg, medical profession
FOUR REASONS WHY FAITH BEING LOST IN PROFESSIONAL ETHICS PER ROSSOUW 1. IT IMPEDES PROPER SERVICE - as rules don't protect the profession or the public, it enforces effective marketing/advertising of services, Radloff survey concluded that many practitioners don't' regard certain forms of marketing as unethical. Rules therefor equal antiquated marketing, stumbling blocks to proper exercise of duties and is designed to antagonise.
2. IT CAN'T BE EFFECTIVELY ENFORCED - lack of trust in the capabilities of Law Society to enforce the code and in practice, repeated and blatant transgressions goes unpunished.
3. ITS VIEWED MORE AS IDEOLOGY THAN PROFESSIONAL ETHICS - outsiders/clients regard the code and its application merely as an instrument to protect practitioners, their honour, status and privileges against complaints of public. Interest of client neglected, as copies of code are not easily available, formulated in complicated way, difficult to understand as also enforced by colleagues of accused practitioners.
4. ITS NOT ECONOMICALLY VIABLE - as there's a five fold doubling of numbers of attorneys and lax entrance policies in law faculties and affirmative action - thus severe numbers explosion - severe competition resembling that of the business world. This competition = legal practitioners often see themselves as business people competing for business in a dog eats dog fashion instead of professionals who serve the public. Argue for replacement of professional ethics with ordinary business ethics estate agents and banks often play law firms off against one another to cut fees/offer rewards in return for business. Competition = attorneys act in ways unconscionable a decade ago ie. As long as it is not illegal, its justified en though the code may be violated eg. Excessive entertaining, touting, kickbacks, pay-offs (eg cash, meat parcels, shopping vouchers, cell phones, laptops). Large portions of legal fees are paid back to estate agents without buyers/sellers knowing this. Attorneys therefore regard themselves as just another form of business ie selling goods and services at the highest possible fee in order to make big profits - Survival morality so brought about by increase competition, sluggish economic environment, affirmative action, rising operational costs, foreign competitors due to globalisation. The competition is also increased by the entry into the previous fields of exclusive domain of attorneys by estate agents, financial institutions, tax planners, accountants and in-house legal advisors.
REASONS OF MICHOLKON AND WEBB 1. ITS TOO FORMALISTICALLY INCLINED - duties of too narrow and individualist nature without reference to context or consequences - concentrate on the letter rather than the spirit of ethical norms. Obedience hereto and historical dominance = legal education focused more on technical skill, professional success, rule regulation/compliance an issues of ethics. Morals and justice. Justice is assumed to flow from correct application of law of facts and truth is conflated with factual truth. However vindication of clients rights = lawyers act ethically to ensure justice as power imbalances - truth follows power. Lawyer creativity - also that manipulations create right or evade rights and truths of a moral and political nature.
2. LIBERALISM INFLUENCES - middle class values = influenced justification for rules of professional legal ethics: Social background, individual dignity, autonomy equality and values of democracy and rule of law were not a guarantee for moral and ethical professional legal standard. Law don't impartially protect everyone's dignity and autonomy as in its content and application, it is driven with discriminatory distinctions on race, class gender. This = paternalistic invasion of client autonomy and unfounded assumptions about clients needs, desires and interests. Cases are treated as purely technical problems of how most effectively to vindicate their client's legal rights. Separation of powers and usurping of clients role in decision making therefore not ensured and lawyers don't play a truly positive social role to further justice. Public perceive attorneys not as playing this social role but merely enrichment of themselves in pursuant of a comfortable living.
OTHER REASONS 1. LAW NOT SEEM AS CALLING -the profession is not used to serve the public interest but as a means to the unscrupulous pursuit of money and status at the expense of the basic values of profession. Lawyers seen as being out to make money like in other trades/occupations. The ideals now are to work as corporate lawyers for an in-house legal department in a big corporation or as a market-driven seller of expertise.
2. SOCIETAL FOCUS ON FINANCIAL SUCCESS - in USA and RSA = the financially successful and not those displaying high moral character are honoured by society. Desire for wealth, affluence and influence has eroded civic and community values. Despite these goals of increased levels of wealth and income, many professionals experience a sense of unanimity and alienation and happiness.
3. MANIPULATION OF VALUES - Pierre Schlag argues that American lawyers use truth, rationality, justice and other moral values in an instrumental sense to aid the manipulation of other legal actors. Lawyers that sell their souls to the highest bidder and these values have no inherent value and meaning and are used to delay, threaten, wheedle, manipulate situations therefore the ethical and professional ideal of good lawyer has completely collapsed in respect of the idea that law is a normative enterprise. Lawyers no longer serve the public good or the basic internal good of justice as the profession is used as a means to achieve pre-determined objectives or external goods.
4. LAWLESSNESS IN RSA - leads to a blunting of moral sensitivities during apartheid. More relaxed political and moral ties now prevalent in post-apartheid RSA as the transition from the pre-apartheid culture of authority. Kruger Commission found a small percentage of practitioners involved in false/deceptive third party claims and the use of trust funds for money laundering. Radloff survey also revealed that large percentages in property law indicated that they don't regard certain forms of marketing as unethical.
WHAT IS A PROFESSION The word "profession" is derived form the Latin profession that means "a public statement" or "promise". From this may be inferred that a legal professional (whether an attorney, advocate, judge, magistrate, public prosecutor or legal adviser) should be worthy of public trust, and should carry out his or her professional duties with public-spiritedness and the highest standards of ethical conduct. Business persons on the other hand = a person who trades goods/services for money to make a profit.
Although members of professions are paid for their services and manage their practices on sound business principles, the professions may be distinguished from their jobs, businesses or trades, by virtue of the following characteristics:
Professionals are required to have specialised intellectual knowledge and skills before they will be granted access to their chose profession. This knowledge, which is not generally accessible to the lay person, puts the professional in a position of authority vis-à-vis the client. The client has no other option but to trust the professional and should therefore be able to rely on the last-mentioned's integrity.
Professionals are expected to have a commitment to promoting the basic good of society. In the case of the legal profession, the basic good is justice, fairness.
Professionals are expected to have a commitment to serving the public in matter related to their particular field and to protect, serve and enhance public good and public trust.
Professionals enjoy relative autonomy in the execution of their duties. They use their discretion in the execution of their duties and do not blindly accede to their clients or other authorities.
Professionals should have a willingness to accept personal responsibility for their actions and for maintaining public confidence in their particular profession.
Professionals share a sense of common identity and an established moral community.
Professionals are self-disciplined and abide by a code of legal ethics based upon what the best thinkers in their particular profession regard as proper conduct for a member of that profession.
The above standards of professional conduct are reinforced by the profession itself or by the courts, taking into account the views of the controlling body of the particular profession.
The crisis outlined above necessitates a restoration of the ethical basis of the legal profession. This module on professional ethics therefore attempts to look at restoring this ethical basis, on the assumption that the law is indeed a collective, normative enterprise and not merely a rhetorical smokescreen for the exercise of power or the accumulation of wealth. To regard lawyers as no more than businessmen would mean that the idea of the law and the objectives of justice, such as the fair and equal distribution of privileges and responsibilities relating to property, liberty and life, would be thwarted. Only only practitioners, and only the rights and privileges of those able would then accept the most profitable cases to pay the high price of legal services would be protected. Justice would be denied to those who could not afford to pay for it. So, too, public trust in the legal profession and the existing socio-political dispensation would be undermined if justice were no longer served. Furthermore, the voices of those who need legal assistance would no longer be heard.
As indicated above we are of the opinion that the crisis in the legal profession should be addressed in the following two ways: First, the nature of ethical conduct should be approached from a more comprehensive philosophical viewpoint (preferably that of virtue ethics). Secondly, the requirements of membership of the legal profession should be served for remnants of a more comprehensive ethical approach to legal practice, which may have been in force in earlier times.
B. AN ETHICAL PHILOSOPHICAL PERSPECTIVE ON THE CRISIS IN THE LEGAL PROFESSION DEFINITION OF LEGAL ETHICS 1. Combination of two separate disciplines of law and ethics.
2. Ethics = the philosophical discipline in which the difference between rights and use of good and evil are studied together with requirement for decency with regard to human conduct.
3. Wide sense - "includes the study of debate between positivism and natural law (is the law's validity dependent on its moral content) or between liberalism and communitarianism (can the law be used to enforce moral views on abortion, homosexuality, prostitution or human cloning).
4. Narrow sense = the ethical standards of professional conduct applicable to the field of law ie how "ought" a legal practitioner to behave in order to be a good, decent and proper legal practitioner ie its the philosophical or theoretical investigation of moral behaviour.
IS THE TRADITIONAL PRACTICAL APPROACH TO RSA LEGAL ETHICS OF LEWIS AN INHERENT CONTRADICTION 1. TRADITIONAL PRACTICAL APPROACH Lewis - ethical philosophy - not the focus, as purpose of approach is to set out the Code of rules prescribing conduct for attorneys that ahs to be obeyed. This code = as much a part of positive law can be objectively described and need no deeper philosophy or history behind the code. What's required = an entirely practical approach to professional conduct of legal practitioners to compliance only in accordance with legal mind set and the positive law regulating the conduct of legal practitioners. This practical, positivistic approach of ethical conduct of legal practitioners can be regarded as one of reasons for the growing crisis.
2. IS THE TRADITIONAL APPROACH A CONTRADICTION IN TERMS The reduction of ethics to a code of conduct raises questions whether he should be using the term ethics. Ethics = the philosophical/theoretical investigation of moral behaviour and if ethics is understood as the philosophical reflection on morality, therefore is legal ethics not a contradiction in terms. Is there not a fundamental clash between ethics and law? Legal and ethical philosophers have found very little of value in the way lawyers approach ethics. This = what is taught as a law ethics is not ethics, but similar to rules made by administrative entities/agencies. It is regulatory and appeals o sanction and not conscience and seeks mandate rather than insight. Ethical and legal philosophy therefore not decisive to Lewis.
3. WHAT IS ETHICS REALLY That ethical and legal philosophy is of decisive. NB Coqulette argues that the legal philosophy of lawyer will influence his understanding of ethics. Formalistic positivistic approach = ethics - a question of compliance to a codified closed and coherent set of legal rules. Spirited or cultural values therefore are too subjective and individualistic to provide reliable guides to conduct. Enforcement/compliance and positive rules that prescribe the do's and don'ts = a Kantian/; rule based or deontological approach to ethics. Emphasis = therefore on compliance with minimum standards/rule which could be strictly enforced by law societies. Other lawyers will see the positive rules as secondary and even sub-ordinate to spiritual and cultural sources of ethical guidance. This approach is problematic and is on of the reasons for the crisis in profession.
4. THE NARROW VIEW OF ETHICS Used in order to justify view that lawyer's job is not to judge wrong or right of client but to defend his client's interests as best he can. Narrow approach to ethics = a technical application of law in interpreting ethical rules. It = emphasise on the use of logical or rational thought without giving proper concern for values. Where present day lawyers criticise legal positivism and formalism, they still have traditional notions of legalism that prevails as per Stan Ross.
Legal ethics have traditionally been discussed without reference to ethics (Lewis). However the legalistic approach to professional conduct is not philosophically neutral as suggested by Lewis as it rests implicitly on philosophical assumptions of formalism, positivism and legalism instead of his claim of a purely practical approach.
5. WHAT SHOULD THE APPROACH BE? Should begin with bringing to light the philosophy of law and ethics upon which it rests and the influence it has on ethics. This wider philosophical perspective exposes the unethical approach to legal ethics amongst lawyers. Ethical philosophy = that ethical responsibility involves more/something difference to strict compliance with rules either out of duty or from the bad man's perspective of Holmes that rule transgression will be enforced between courts/regulatory bodies.
CAN A ROLE-DIFFERENTIATED APPROACH JUSTIFY UNETHICAL CONDUCT? What its about - 1. Client's interests take preference above those of others;
2. Otherwise moral considerations rendered irrelevant in such approach;
3. Services duty = to the best of professional ability irrespective of the moral worth of clients end/cause as long as its no illegal;
4. Professional therefore does for the client what the ordinary person won't do;
5. Criminal defence lawyer to do best for the client irrespective of his belief in the client's innocence or not;
6. Professional job is not to approve /disapprove of character of client or his cause nor to judge the rights and wrongs of client.
7. Private judgments of professional not to be substituted for the public institutional policy of judgment as this would deprive the client of opportunity to have the system determine guilt / innocence;
8. The adversary system therefore best method in order to determine guilt/innocence else it would lead to an oligarchy of lawyers if there own private views would be decisive;
9. This sometimes referred to as the ethics of hired gun.
CAN MORALITY IN PRIVATE LIFE BE DISTINGUISHED FROM PROFESSIONAL LIFE?
1. Professional regulation = lawyers are client-orientated and lose focus of broader ethical and civic responsibilities;
2. The = they would do for clients, what they normally would have found immoral/unethical.
3. Lawyers own private views therefore to be disregarded due to the nature of profession.
4. Therefore not focussed on balancing interest of all involved, or try to ascertain true version of facts, or apply the law objectively to the facts.
5. The rule based/role differentiated approach offered as a defence in that unethical conduct goes with their role as a lawyer where in professionally capacity, they don't act as ordinary people but as occupants/actors of a rule.
6. The role insulates them from moral conscience in which standards of ordinary morality don't apply.
7. Markowitz = morally good lawyer will be uncomfortable with this approach as role occupants/agents, disregards the fact of them being autonomous, self driven entities to be judged on their own moral merit.
8. This approach = also a betrayal of their personal private moral ideals to always act honestly, justly an in friendly/cordial manner.
9. Subjective approach = immoral/unethical behaviour = sub-ordination of their ideals to the adversary system and reduction to more cogs in the machine of the legal
10. This = loss of integrity/ideals/own life moral plan and an impression of acceptance of immoral conduct having become part of their professional character.
11. Moral good character requires they have to identify with their own conduct and to know that it contributes to the fulfilment of their moral ambitions.
12. Anything else would + that they would become estranged from their moral life and would use the integrity that gives meaning to their lives.
CAN ROLE-DIFFERENTIATED APPROACH BE JUSTIFIED? (a) Adversary System - judge = the impartial referee who listens to both sides of the opposing parties and who has to se that the legal representatives adhere to the procedures and rules. Roles therefore divided - judge to ascertain true version of facts and apply law objectively and lawyer focus on clients interests and not on presumption of justice and the general good/or to balance the interest of all involved. As mouthpiece for the client = have to fearlessly promote clients interests regardless of interests of other person. Justice and equal protection is assured under this system as everybody has the opportunity to present their case before an independent judge. It is set in context however that everyone has equal access to legal representation and equal bargaining power. Partiality and client loyalty therefore justified under role-differentiated professional ethics and regarded at the essence/NB virtue of legal profession. Professional rules = clients interests to be fearlessly, jealously and even aggressively advanced and lawyer not to undermine clients case even if of the opinion that client won't win the case. Client's morally undeserving often to be defended by lawyers and puts them in a moral dilemma between partiality and personal ethical ideals of fair play and honesty.
(b) Sharp practices - eg aggressive cross-examination of truthful witnesses in order to undermine their credibility or to confuse them. Also includes unnecessarily delaying a case, manipulating facts, making statements they themselves don't believe and pleading technical defences (egg prescription) knowing full well that their client morally obliged to compensate the claimant. Only issues of relevance is whether there appearance in court was good or bad, whether their arguments was clever and whether their cross-examination was skilful. Whether they told lies, abused power or acted unethically is not relevant to a role-differentiated approach.
(c) Lawyerly virtues - the approach in respect of which morally good practitioners try to redescribe or deprofessionalize their professional role = don't need to renounce their own ethical ideals/integrity. They therefore act virtuously because they strive for professional virtues of client loyalty and statesmanship towards the community ie they act selflessly and renounce themselves when promoting client's interests and uphold the political culture of the community by promoting a variety of interests. These tasks therefore are to expose weaknesses of all positions through aggressive cross-examination. These would not amount to the abuse of people.
CRITIQUE - MARKOWITZ - lawyers still despite above, have to abandon certain virtues Statesmanship and requirement to put both sides of a case and commitment to procedure rather than result still makes them morally unfit. Redescribing professional role will solve the moral dilemma only if the outside world accepts this, which seems unlikely. Lawyers are cast as villains by historical forces and must often abandon their integrity to be able to have really successful practices.
WASSERSTROM- holds that the concept of the hired gun can best be defended in the case of criminal lawyer and argues lawyers being subject more to the demand of moral point of view. His instructions are as follows:
1. The legitimacy of role-differentiated behaviour can be sustained only if the adversarial criminal law system (where prosecutor and accused act as opponents) is itself legitimate. However, we have some cause of scepticism about the justice and effectiveness of the present legal system.
2. Role-differentiated behaviour justifies a cut-thought, "winner takes all", capitalistic ethic, competitiveness (rather than cooperation, aggressiveness (rather than accommodation and ruthlessness (rather than compassion).
3. Lawyers cannot adopt a purely role-differentiated perspective as easily as medical doctors can, because it is intrinsically good to cure a disease, but in no way can it be intrinsically good to win every lawsuit at all costs, especially where lawyers need to portray that winning at all costs is the essence of justice.
4. Lawyers pay a price for their role-differentiated professional behaviours because it is hard if not impossible, to divorce one's professional way of thinking from other aspects of one's life. "Cleverness" and ruthlessness in professional life may have a devastating effect on a lawyer's private life. The professional life one chooses often determines what kind of person one becomes.
ANSWER lies perhaps in move away from the legalistic/rule based/formalistic mind set that leads to role-differentiated behaviour between lawyers and clients which is stripped of all moral depth and public/civic responsibility. This = the bad man perspective of nothing but fear before enforcement of rules being relevant. If legalistic mind set is discontinued a more rewarding and ethically defensible lawyer-client relationship is possible on the basis of care (Menkel-Meadow) or the virtue of good judgement (Kronman).
Stan Ross - also argues that realistic approach leads to an inhumane present legal system but the moral contractual approach leads to a situation where one can reconcile being a good lawyer with being a moral or virtuous person.
PHILOSOPHICAL APPROACHES TO LEGAL ETHICS 1. Rule based ethics = recognised by his sense of duty;
2. Virtue-base ethics + recognised by types of character portrayed;