Ethics and Morality in the Legal Practice

 

In olden days, much before the legal profession came to existence, in medieval Europe, Trial by combat was a method to settle accusations in the absence of witnesses or a confession, in which the parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. It was a procedure based on the premise that God would help the innocent by performing a miracle on their behalf. However later on the method was changed and the litigants were permitted to hire professional fighters (gladiators) to fight on their behalf. These gladiators are the ancestors of the present day lawyers, whose profession of fighting for others ultimately evolved into modern concept of advocates/lawyers representing litigants.  in the words of  Anatole France  a well-known jurist in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."

In his Gulliver’s Travels, Jonathan Swift grumbles that lawyers are “a society of men bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid.” In short, they distort truth for monetary gain; they are interested in neither objectivity nor morality.

 What the public doesn't like about lawyers could fill a lengthy list. Although the rank order of grievances shifts somewhat over time, certain continuities persist. The first involves character defects associated with lawyers. Most Kenyans think lawyers are greedy, and only a few think either "honest and ethical" or "caring and compassionate" describe most lawyers. These views are well captured in anti-lawyer humor, quips such as "a lawyer is a learned gentleman who rescues your estate from your enemies and keeps it for himself," or "How do you know when a lawyer is lying? His lips are moving."  Corporate clients are among lawyers' harshest critics. By contrast, those who know relatively little about the legal profession and the legal system, and who get their information primarily from television, have the most favorable impressions.

Litigation is rarely a win-win enterprise and losers are apt to put some of the blame on lawyers. In my own view, I would compare that scenario with that ‘would be’ of doctors by stating it this way, "Everyone would hate doctors, too, if every time you went in the hospital, your doctor was trying to take your appendix out, and the other guy's doctor was standing right there trying to put it back in."

Imagine yourself two or three years from now practicing law. You're an associate in a law firm, working hard for your clients and trying to impress the partners that one day you should make partner yourself. But a problem comes up in a matter you are handling for one of the firm's largest clients. It seems that either you or your secretary miscalculated by a day the deadline to file your opposition to a summary judgment motion. You've got the pleadings done and they're good, but you're a day late and the motions judge is a stickler on deadlines. You're in a panic, thinking about losing your job and how you'd make your student loan payments. You ask for advice from  a fellow associate who was a couple of years ahead of you at law school, and he tells you to  turn the postage meter back a day, backdate the date on your opposition and mail it out that morning. That will probably get you off the hook.

 

You walk away from the conversation feeling confused and upset. You know that turning back the postage meter is not the right thing to do, yet it seems so easy, and the ethics of the situation raised little concern with your more experienced friend, whose sense of "right" and "wrong" you have always admired. You feel enormous pressure, not just for yourself, but to protect your client's case. You consider whether turning back the postage meter may be a situation of "no harm, no foul," since no one will be the wiser. You don't know how to resolve your dilemma.

Assuming a rapist or murderer is gravely injured -Would it be proper for a doctor to refuse medical help on the ground that, he is a rapist/ murderer?

 What is ethical accepting a brief by keeping aside personal prejudices or allowing them to prevail over professional duty?

Would it be proper on the part of Municipal Corporations and electric departments to refuse supply of water and electricity to all who are accused in a crime?

How would standards ethics and morality differ when the rapist father of a minor, delinquent businessman, corrupt politician, other terrorist or rapist filmstar is represented by a lawyer?

 

Is there any difference between ethics and morality? Britannica Encyclopedia defines legal ethics as “principles of conduct that members of the legal profession are expected to observe in their practice. They are an outgrowth of the development of the legal profession itself” .Morality on the other hand refers to an ideal code of belief and conduct which would be preferred by the sane "moral" person, under specified conditions. Morals are arbitrarily and subjectively created by society, philosophy, religion, and/or individual conscience. A perfect example is a criminal defense lawyer, though the lawyer’s personal moral code likely finds murder immoral and reprehensible, ethics demand the accused client be defended as vigorously as possible, even when the lawyer knows the party is guilty and that a freed defendant would potentially lead to more crime.

 

Morals define personal character, while ethics stress a social system in which those morals are applied. In other words, ethics point to standards or codes of behaviour expected by the group to which the individual belongs. This could be national ethics, social ethics, company ethics, professional ethics, or even family ethics. So while a person’s moral code is usually unchanging, the ethics he or she practices can be other-dependent. Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons for example revenge killings or tit for tat attitude similarily legal ethics are also sometimes violated by judges and lawyers on the same grounds for example – cases of moral convictions or tutoring a witness either by Government prosecutors or private practitioners.

As Bradley Wendel explains:

“[l]awyers claim they are not morally accountable for committing acts of deception or cheating because they work within an institutional framework that is designed to accomplish some valuable social end, and realizing this end requires the lawyer to perform certain acts that would otherwise be morally wrong, but for the institutions and procedures of the adversary system.”

This is a commonly held belief but in some sense, incorrect. Ethical behaviour does not flow from the rules of professional conduct but from the values held by the practitioner. The rules of professional conduct are not ethical rules or principles, they are only a baseline of conduct and should not prevent lawyers from acting as they would ordinarily do. Legal practitioners have a duty to act morally in addition to the fiduciary duties.

Many of the most interesting ethical "grey areas," the issues that create dilemmas and conflict over ethical principles, arise because of tension between black letter rules of legal ethics and society's sense of right and wrong. Some ethical principles, including those that justify why the clearly guilty criminal defendant should be zealously represented, and why that defendant's confidences must be strictly protected, have their genesis in our Constitution (2010 constitution of Kenya) e. g

Article 47 talks about fair administrative action,

 Article 48 is about access to justice,

Article 49-rights of arrested persons,

Article 50-Fair hearing,

Article 51-Rights of persons detained, held in custody or imprisoned.

CONCLUSSION

That document (the constitution) is a major source of the strong precepts of loyal and devoted advocacy for our clients, right or wrong, that have long been a fundamental part of our ethical rules. There is tension between these rules and other important principles of our society: The obligation to tell the truth; the duty of fairness; the avoidance of racial, ethnic, and gender bias; the duty not to allow others to use our legal skills for their own illegal ends; the increasing significance of our multi-cultural society; and the obligation not to allow harm to come to others by virtue of our conduct, even if it means "blowing the whistle" on a client. 

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