The legal world seems to be something of a paradox. Without missing a beat law societies and legal theory espouse lofty statements of morality, while at the same time encouraging lawyers to be nothing more than “amoral technicians”. The message is lawyers are the valiant vanguards of justice and right…unless the client just wants you to help increase the value of their stock, then do that. The question I would ask is if lawyers are to attempt to serve the common good is this truly the best way to do it?
The typical defence of the traditional concept of lawyering (crudely sketched above), is that serving the client is the best way to serve the common good. Facilitating each individual’s ability to advance their interest within the bounds of the law, is advancing the common good. To fulfill this mandate legal ethics emphasizes ideas such as loyalty to the client and adherence to the rule of law. The question that lingers in my mind as I study law is whether this truly is the best way to advance the common good. Should lawyer’s ultimate allegiance be to the client’s legal goals?
Without purporting to have any definitive answer to this question I would suggest that the focus of lawyering should be oriented away from client-driven common good, and towards justice. We have all heard countless stories of how serving the client has led to undesirable outcomes. Whether it be the notorious wall street lawyer’s or the overly-zealous criminal defence lawyer, I doubt there is anyone who can seriously suggest that client supremacy hasn’t presented at least some ethical problems. It would seem to me that unfailing loyalty to the client is perceived as a problem when it runs counter to our conception of what is right. Therefore it may be high-time that as lawyer’s we scrap this dogged loyalty to the client and return to the roots of law; justice.
Formally speaking law is nothing more than a bit of ink on a piece of paper. Justice is the reason for why someone applied that ink to the paper in the first place, and justice is a moral creation. At its most rudimentary level justice articulates, or at least attempts to articulate a sense of morality which is shared among members of a community. Our perception of what justice is emerges from our sense of right and wrong. As a society and as individuals, we place value upon law because it accords with our sense of justice. When there is a disconnect between law and justice we challenge the law. An example of this would be the Moroccan law, which allows a rapist to escape prosecution if they marry their underage victim. Presumably most of us our do not agree with this. Granted it is not the law of Canada, but it illustrates the point that the law itself does not have value, it is the morality/justice it is meant to embody that confers worth.
As future lawyers it is important to recognize this conception of law and justice, and understand the difference between the two. Justice is a moral concept and law an articulation of that moral concept. As lawyers I suggest we move out of the client business and into the justice business, as this is the real foundation of our work. More often than not our job will be to enforce the law as it probably reflects our sense of justice or at least does not offend it. However where law and justice clash, a good lawyer is one who prioritizes justice over loyalty to the client. To put the law before justice, is in my mind to put the cart before the horse.
The obvious question that emerges from this is what is justice? This is perhaps one of the most difficult questions to answer. It would be convenient if there existed an objective moral standard against which all action could be judged. However since justice is to a large extent a social creation and constantly evolving, no such standard exists. For this reason it may be useful to conceptualize justice first and foremost as a process. Justice is the process of deliberating with one’s self about what is right and what is wrong. For lack of a better-term it is the process of soul-searching. It involves seeking advice from trusted mentors, reflecting upon the spirit of the law, and searching one’s conscience for what the right thing to do is. There is no one just outcome, and as such all we can strive for is an outcome, which reflects best our conception of justice.
This idea of a morally liberated lawyer may undermine to an extent the rule of law, but it does so in order to promote justice, and this is worthwhile. Moreover, if the law truly reflects well a communities sense of morality, than rule of law need not be overly concerned anyways. A lawyer/person who takes a stand on moral issues brings issues of the law and justice to light, contributing to law’s evolution and hopefully betterment (better in the sense of a more accurate sense of morality). The notion of justice simply cannot be forwarded without commitment to critical self-reflection. Justice is a sense of shared morality, and to not challenge law when it vitiates justice, is to not allow justice to evolve and to risk undermining the entire system. A legal system endures with integrity only insofar as it is relevant to people’s morality. Therefore lawyer’s, as members of the legal system and as people within the community upon which the law is based, have the same moral imperative of any person to challenge law or legal ethics when it does not accord with their sense of justice.
This idea can perhaps best be illustrated by an example, which comes from the real world. Acting in the capacity of a lawyer you find out that a person has been convicted for a murder they did not commit. You know this because your client confessed to you in confidentiality that they did it, and you are certain it is the truth. What then are you to do? Legal ethics and the traditional model of lawyering would dictate hold confidentiality. However I would venture there are least some who would view this as unethical. Therefore for the sake of justice, it would be necessary to implement the moral reasoning suggested above. My ethical reasoning for this situation would go something like this: in law we have confidentiality because we put the client first. We put the client first because it facilitates justice. Justice in this case is the idea that people should not be punished for crimes they did not commit. To keep confidentiality in this case then is to actually undermine the purpose of confidentiality and commit an injustice. Therefore confidentiality should be broken. Different people may reach a different conclusion about this situation, but the important thing is that when confronted with a moral dilemma, lawyer’s follow their own morality in an attempt to strive for justice.
Lawyer’s are in a particular well-positioned to challenge established rules and thereby contribute to the relevancy of law, and if their conscience dictates that something is unjust they should not shy from acting upon this belief. It is not only the duty of parliament to legislate, every citizen has not only the right, but perhaps the moral imperative to adhere to their moral conscience and speak out when the legal rules cannot be reconciled with justice. Law without justice is nothing more than empty words, and has no claim in governing people’s lives, as such it must be constantly re-evaluated. It would seem to me more conducive to the common good, to loosen law societies jealous grip on the primacy of the client, and encourage lawyer’s to act first and foremost as moral human beings.
At the most intimate level lawyer’s should be guided by their own sense of morality, for at the end of the day it is not the ethics committee or a judge who we are accountable to, but ourselves. We are all our own judge and jury, and as lawyers we sell our services not our morality. I do not think it is possible to be an ethical lawyer without first being a moral person.