Ethics in Attorney Tactics

Course - Ethics and Moral Behavior in the Criminal Justice System
Week 3
Discussion
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• What can be done to ensure that the public is protected by the court system while the rights of the accused are protected under the Constitution? 
  

“The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government” (ABA, 1980, p.6) The duties of officers of the court are to uphold this view, and all lawyers are officers of the court; “Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character." (Ex parte Garland, 71 U. S. 333 (1866)) Thus all lawyers are responsible for seeing that the public is protected, while at the same time that the rights of the accused are protected as well.
The security of these rights are based on law and applied morality, and a balance of these considerations. Albanese discusses the moral issues I summarize as: one, utilitarian morality must balance the pain caused by the state to enforce the law versus the pleasure that is produced by reducing crime; secondly, formalist (deontological) morality is based on categorical imperatives, and judge policy based upon those ideals; finally, virtue ethics requires that not only policy must have a real good as the objective, but that each incident in which policy is conducted must weighed by motive and circumstance.(2010, p.51)
Under the moral guidelines of each theory, and by the the responsibility of all officers of the court to maintain rule of law, lawyers must determine whether any given law is moral, it's consequences are moral, and that it protects both the public good, and the rights of the accused. Any given law or policy may be misapplied or contravened, so it is the duty of the officer of the court to act morally in his own right.

• Defense attorneys take an oath as officers of their Bar Association to vigorously defend their clients to the best of their ability. That is their legal and ethical duty as required by their professional status as officers of the court. How far can attorney-client privileges ethically go in suppressing evidence? 

As discussed in the previous question, each attorney must weigh the public good and the rights of the accused, which from the perspective of the criminal defender, are the same.“Cohen (1991) presented the argument that only an attorney acting as a moral agent had the capacity to be moral”(Braswell, McCarthy, & McCarthy, 2012, p.132) Pollack presents the criminal defender with an ethical dilemma; “For instance, if a defense attorney had a weak case and the only available tactic was to challenge the credibility of the prosecution’s witness, should the attorney expose the witness (who is telling the truth and the defense attorney knows it) with evidenceof past misdeeds, current failings of character, and, in general, attack his or her character?” (Braswell, McCarthy, & McCarthy, 2012, p.133)
From a utilitarian view, lawyers may already be going past moral limits by going too far in protecting the client's interests, as opposed to client's rights, and therby undrmining public safety;“Wishman (1981) describes a case in which he challenged a rape victim’s account of an alleged brutal rape and sodomy” (Braswell, McCarthy, & McCarthy, 2012, p.133) This action would sem to be be agianst ther interest of public order, the victim's rights, and the rules of the legal system;“. . . All persons who know anything about the facts in controversy are, in simple truth, the law’s witnesses” Bauer, 2008, p.483)
However, looking at this from a deontological view suggest that defense lawyers acting in this fashion are following their duty as established by the legal system.. “If [defensecounsel] can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure, or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.” (Sokolow, 2012, p.34)
From my own perspective, I take a mostly utilitarian view of this question; I believe that the legal system fails in it's duty to both the public good and to the rights of the accused. In the case where a lawyer maligns a victim of crime (having a consequence of severe pain for that victim), getting a criminal off (having a consequence of severe pain for society) that does not match the potential for pain for a potentially innocent accused. Blackstone's ratio is that “"It is better that ten guilty persons escape than that one innocent suffer", which completely ignores the certainty( a value of the hedonistic calculus) that more then one innocent person will suffer when that many guilty are released upon the public. In addition, even by deontological guidelines, the legal duty to discredit honest witnesses fails to adhere to categorical imperatives, by putting the interest of one client over the duty to do good, and by failing the test of univerzibility, to wit, “Do I want to release a rapist upon my own wife, daughter, mother, or sister?”. Finally, returning to the utilitarian scales, it can be seen that the duty to protect an innocent man is important, but that the duty required by the legal system to discredit credible witnesses has far worse consequences.

References

American Bar Association (ABA). (1980). ABA model code of professional responsibility. Retrieved May 30, 2014 from http://www.americanbar.org/content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckdam.pdf

Albanese, J. (2010). Professional Ethics in Criminal Justice: Being Ethical When No One is Looking [VitalSouce bookshelf version]. Retrieved May 29, 2014 from http://digitalbookshelf.southuniversity.edu/books/9781256509936/id/fm02

Bauer, J. (2008). Buying witness silence: Evidence-suppressing settlements and lawyers’ ethics. Oregon Law Review Vol. 87, 481. Retrieved May 30, 2014 from http://law.uoregon.edu/org/olrold/archives/87/bauer.pdf

Braswell, M.C., McCarthy, B.R. & McCarthy, B.J. (2012).  Justice, crime and ethics (7^th ed.). Burlington, MA: Anderson Publishing.

Sokolow, H. (2012). Fundamental ethical considerations in Federal criminal defense. 2012 Annual Federal Sentencing Guidelines Seminar. Retrieved May 30, 2014 from http://www.ussc.gov/sites/default/files/pdf/training/annual-national-training-seminar/2012/1_Ethical_Considerations_in_Federal_Criminal_Defense.pdf

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I don't think the victim has a right to be free of injury.  I do think the victim has a right to justice, and I think that it is in the public good to see that justice is served, both as a duty to the victim as an individual and to prevent the criminal from committing further crimes against the public.

OTOH, I don't think that the defendant has the right to secure his innocence by any means feasible.  I think that the defense has the duty to see that the accused is prosecuted legally and that the State proves guilt beyond a reasonable doubt.  One of the good things that the criminal justice filter serves is that unless something is screwed up, most innocent persons don't get to court.  Of course, there always going to be screwups, either through bad intent or by mistake...which is why need the adversarial system, and why Sokolow suggests that defense push the limit.

So if I answer the question of whether it is more important that the public good is served or that  the lawyer gets his client off, I'd hedge and say that it is a lawyer's moral duty to balance both interests up to the point where he knows he is doing the wrong thing...which to me would be suggesting a rape victim is promiscuous when he knows that has nothing to do with the crime of rape.

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I don't think you can assume that witnesses, either for the State, or for the defense, are either going to be accurate, or for that matter even honest.  I understand that the defense has the moral duty to question the integrity of a witness for the State.
My point is that when a lawyer attacks a witness that he knows to be "a truthful one"; he is failing in his duty under utilitarian grounds, and that his duty may be conflicted under deontological duty; as he has a duty to his client and to the court.
The dividing line as I see it is protecting a client's INTERESTS over a client's rights.  It is a lawyers duty to make sure that his client is prosecuted legally, it is not his duty to get his client found innocent of charges.  In Utopia, a client protecting an innocent's clients would end up with an innocent verdict when abiding by his duty to protect the client's rights.
Which is why I stress the idea that a lawyer's moral duty is in being an officer of the court, which should protect both the public and the client.  After all, it is not in the interest of the public good to prosecute innocent citizens.

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The entire time I was putting my discussion together, there was an itch in my mind about a point I was missing.  It jumped out from your list of moral concepts; "Treat others as ends in themselves as a means to winning cases".  This is a perfect example of how defense lawyers fail in their moral duty when attacking witnesses they know to be honest.
Although they have a deontological duty to protect their client; they also have a deontological duty to abide by ethical boundaries.
Of course, there are two other of these concepts that are violated by that particular action:
"Do not deliberately engage in behavior that is apt to deceive the court as to the truth"
"Avoid harming others in the process of representing your client"

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