NCJ Number
44965
Date Published
1977
Length
13 pages
Annotation
THE QUESTION OF LEGAL ETHICS IS ANALYZED IN RELATION TO GOALS OF THE CRIMINAL JUSTICE SYSTEM.
Abstract
LEGAL ETHICS HAS BECOME AN INCREASING CONCERN OF THE PUBLIC AND OF THE AMERICAN BAR ASSOCIATION. OFTEN PROVISIONS OF LAWYERS' CODE OF LEGAL ETHICS ARE AMBIGUOUS, AND THERE IS NO GUIDANCE ON WHICH OF SEVERAL CONFLICTNG DUTIES SHOULD TAKE PRECEDENCE IN A PARTICULAR SITUATION. LAWYERS ARE OFTEN TOLD LITTLE MORE THAN TO 'DO THE RIGHT THING' UNDER THE CIRCUMSTANCES. THEY MUST PERFORM UNDER THE SITUATION MODEL -- EACH SITUATION IN WHICH AN ETHICAL QUESTION IS PRESENTED IS UNIQUE, AND A DIFFERENT GUIDING PRINCIPLE MAY DEMAND PRIMACY IN EACH CASE. BECAUSE THE INDIVIDUAL ATTORNEY IS THE FINAL ARBITER OF WHAT IS 'RIGHT' IN CLOSE CASES, HIS OR HER DECISION IS VIRTUALLY UNREVIEWABLE. CRIMINAL LAW IS FOUNDED ON A SYSTEM MODEL; BASED ON THE VARIOUS GOALS OF CRIMINAL JUSTICE, LAWS HAVE BEEN ENACTED THAT TELL PEOPLE WHICH GOALS HAVE BEEN DETERMINED TO BE FOREMOST IN CONTROLLING BEHAVIOR (E.G., STEALING IS WRONG, NO MATTER HOW COMPELLING THE MOTIVE FOR THE THEFT). IN ORDER TO DEFINE PROFESSIONAL RESPONSIBILITY IN INDIVIDUAL CASES IN TERMS OF A GOAL OR GUIDING PRINCIPLE, THE BAR MUST ACHIEVE A CONSENSUS AS TO THE OVERALL GOAL OF EACH SUBPART OF THE SYSTEM OF JUSTICE. THE TWO MOST WIDELY ACCEPTED GOALS OF THE SYSTEM ARE TRUTH-ORIENTED AND ADVERSARY-ORIENTED. IN THE TRUTH-ORIENTED MODEL, THE FUNCTION OF THE ADVOCATE IS TO ASSIST THE TRIER OF FACT (JUDGE OR JURY) IN MAKING A COMPLETELY IMPARTIAL JUDGMENT; PARTISAN ADVOCACY IS APPROPRIATE ONLY INSOFAR AS IT AIDS IN THE CORRECT ADJUDICATION OF THE FACTS. THE ADVERSARY MODEL LEAVES THE MATTER OF TRUTH TO THE TRIER OF FACT. EACH SIDE OF A DISPUTE IS INSTRUCTED TO FORM A BIAS, PURSUE ALL FACTS AND ARGUMENTS IN ITS FAVOR, AND ATTACK ALL EVIDENCE AND ARGUMENTS FOR THE OPPOSING SIDE; IN THIS WAY, BOTH SIDES ARE FULLY PRESENTED TO A TRIER OF FACT. HOWEVER, UNDER THE PRESENT SYSTEM, NEITHER MODEL HAS BEEN GIVEN PRIMACY. FAILURE TO DEVELOP AND ADOPT A CONSISTENT FORMULATION OF ETHICAL DUTY HAS RESULTED IN A SET OF AMBIGUOUS AND CONTRADICTORY RULES, AS WELL AS THE INABILITY TO IMPOSE DISCIPLINE EFFECTIVELY. IF THE LEGAL PROFESSION IS TO CONTINUE TO BE SELF-MONITORING, IT MUST DISCARD THE SITUATION-ORIENTED MODEL FOR ONE THAT IS SYSTEM-ORIENTED. ATTORNEYS MUST DECIDE WHICH GOALS ARE TO BE GIVEN PRIORITY IN CASES OF CONFLICT (THE ADVERSARY SYSTEM OR THE SEARCH FOR TRUTH), AND THEN ALL RULES OF CONDUCT MUST PROMOTE THAT SYSTEM. REFERENCES ARE PROVIDED.