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Moral ethics vs Legal ethics: Defence lawyering

Updated on September 26, 2015

Professional and personal morality

The law is valid because the law says it is. Law’s authority must ultimately rest on moral attitudes of the people. The law earns fidelity by the general moral quality of its rules. Fuller called this external morality of law. The external morality of the law refers to the substantive content of legal rules. If the content is pervasively unjust the legal system will fail to command the respect of the community and must maintain itself by force.[1] Lawyers who are certain of their client’s guilt confront inescapable ethical conflicts when the client insists on a vigorous defense. The lawyer’s obligation to protect confidential client communications[2] and to conduct a zealous defense comes into conflict with the lawyer’s duty to candor toward the court and possibly the lawyer’s own moral sensibility. The often vague rules of legal ethics, the spotty judicial decisions on the subject, the opinion of the general public, and the views of the legal ethicists all conflict. In Courvoisier Case[3], Charles Phillips, the leading criminal defense lawyer in England, represented Courvoisier at his trial in the Old Bailey. Phillips, then age fifty-three, Irish and had a well-deserved reputation for emotionalism and flamboyance.[4] The word got out that Courvoisier has confessed to Phillips during the trial. There was an immense outcry against Phillips in the press. Not only laymen but many lawyers condemned him, although he had a few defenders. The consensus was that he acted wrongly in aggressively defending the accused.

This case reminds me of the legendary novel, “To kill a mocking bird”, by wherein Atticus Finch, the defense lawyer was appointed by the court to defend the person who was accused of raping a girl. Gregory Peck who played Atticus Finch in the movie during an interview some had become advocates, encouraged by Finch's defense of a black man falsely accused of rape. The small-town lawyer in Alabama, a paragon of virtue and sensitivity and steely determination, became a hero to thousands in the early 1960s, when the release of the movie coincided with a civil rights movement in the South.[5]

In popular culture, the answer to what lawyers should do when they are certain that the client has committed some form of misconduct is clear that is a good lawyer should betray the client. The defense lawyer’s duty is to protect the public from danger that a wrongdoer might be acquitted.[6]

[1] Moral basis of law: external and internal moralities of law, Suri Ratnapala, pg 167

[2] Model Rules of Professional conduct R. 1.6(a)

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

[3] Hazard, Geoffrey C. Jr., “Rethinking Legal Ethics”(1974). Faculty Scholarship Series Paper 2409 available at

[4] Id. 4

[5] Icon of dignity and strength, The Hindu, , Friday, June 16, 2000

[6] Michael Asimow & Richard Weisberg, When the lawyer knows the client is guilty: Client confessions in legal ethics, popular culture, and literature, IV A. The no- adversalism model, pg 248,

The 'moral pluck'

Betrayal of evil clients in popular culture is an example of “moral pluck”, termed by William Simon. He states that “Moral Pluck insists that ethics is not simply matter of duties to society, but rather of character and personal integrity”.[1] There are many examples in movies and TV serials where this “moral pluck” can be seen.

In the movie Michael Clayton (2007), big-firm defense lawyer Arthur Edens (Tom Wilkinson) goes off his medication and prepares to betray his client, U-North, after learning that the client failed to disclose a critical and damaging memo to the plaintiffs. The undisclosed memo makes clear the client knew that its weed killer was also a person-killer, but it chose to go ahead and market the product anyway. After the client kills Edens to prevent him from publishing the critical memo and also attempts to kill law firm “fixer” Michael Clayton (George Clooney), Clayton finishes off the client by entrapping its general counsel (Tilda) in a police sting.

[1] William H. Simon, Moral Pluck: Legal Ethics in Popular Culture, Vol. 101, No. 2 (Mar., 2001), pp. 421-448,Published by Columbia Law Review Association, Inc.

Legal ethics vs. moral ethics

Legal ethics “concerns the most fundamental moral aspects of our lives as lawyers.[1] Lawyers professional responsibility as a matter of “being a morally good person.”[2] The ethical question for the lawyer is how to serve the People then the nature of the lawyer’s activity is “People- Centered”. The lawyer’s work is neither self- focused nor concentrated on the particular legal person on whose behalf he or she may act. Rather, it is fixed directly on the political community, which is the expression of the People’s Will. These characteristics of being a lawyer suggest the problematic nature of prevailing concepts of him or her. Whether one focuses on the moral activist, the zealous advocate, the religious lawyer, or any other developed model that is championed today, all conceive of the lawyer in categorically mistaken ways.[3] David Luban’s work, Lawyers and Justice: An Ethical Study concluded that defence counsel’s assertion of the statute of limitations to bar a plaintiff’s overall claim is professionally unethical.[4] He says that the standard conception and its client- centric approach should be replaced with an ethic of moral activism.[5]

The “Lake Pleasant Bodies Case”, [6] in which lawyer acting on their client’s information locate and photograph the bodies of two murder victims, but do not disclose this information until much later.

Spaulding v Zimmerman, [7] a lawyer defends a personal injury suit learns that the plaintiff has a life- threatening aneurysm, of which the plaintiff is unaware and does not inform him. In these cases not only does the dominant picture put the lawyer at odds with ordinary morality, it also makes the lawyer an enemy of the law itself. Luban rejects the realist suggestion that zealous advocacy shows law all the respect it is due.[8]

The proper functioning of the legal system requires lawyers to remove personal ethical values from their work.[9] Their role is to function as extreme partisans without moral accountability for their own conduct or even that of their clients so long as both have not definitively the bounds of law.[10]In this role they are to be morally neutral. In Original American Understanding of the legal system meant that the governing class conception embraced a necessary connection between lawyer’s ethics and public good. Commentators agreed that legal ethics required moral understanding, moral considerations in deciding who to represent, respect for court and colleagues, and personal integrity.[11] The attorney’s first and foremost obligations are to preserve the confidences of his client and to advance the interests of his client. All other duties are of minimal importance.[12] In a criminal case “of deepest dye”, where the lawyer believed that client guilty, Hoffman argued that it would be unprofessional to apply “ingenuity” beyond securing to them a fair and dispassionate investigation of the facts of their cause.[13] In contrast, George Sharswood urged lawyers to zealously put the prosecution to its proof in order to protect the defendant’s liberty and interests, even where the crime is heinous.[14] The challenge to a lawyer’s adversarial role arose both from those who distrusted the role of law and lawyers in making determinations of right and wrong, and those who challenged the lawyer’s role as an advocate in adversarial system.[15] After the Civil War, the increasing influence of liberalism undermined the republican faith in an organic community that promoted the public good. Lawyers were no longer central actors.[16] Like all professionals, in the late nineteenth century they faced a challenge to their status grounded in assertion that they were just self- interested as business people and therefore deserving of no special authority.[17] In the face of this challenge, lawyers turned to the Progressive Era’s ideological embrace of professionalism. Professionalism posited” a bargain between the profession and society.”[18] The question that is most likely to arise here is that ‘whether the concern of legal ethics is the morality of lawyers, the morality of clients, or the morality of law’? Law’s primary role, the claim goes, is to mediate between inconsistent but reasonable moral views. It does so most obviously by allocating legal rights, often reflecting compromises between (ordinary or general or ‘broad-based’) moral positions, which settle what may be done in areas in which there may be contest or disagreement.[19] The American adversarial system differentiates professional and personal morality of lawyers. It says that they are both alienating and anesthetizing. Alienating in that it separates a person from her/his actions taken in performing a professional role by attributing responsibility for these actions and their consequences to the role itself rather than to the individual. Anesthetizing in that it permits if not requires a professional to constrict the moral universe inhabited on the job, extruding moral sentiments that she/he otherwise might feel, numbing the moral sense of ordinary personal responsibility.[20] The provisions of the code of professional conduct cannot satisfy the moral demand that one live as one sought. Indeed it is questionable whether the lawyer’s role in our society is consistent at all with the possibility of leading a morally exemplary life.[21]

[1] Anand, Rakesh K., Legal ethics, Jurisprudence, and the Cultural Study of the Lawyer, available at

[2] Stephen Gillers, Regulation of Lawyers: Problems of Law And Ethics. He adds that legal ethics is also about “Being a professionally safe lawyer”

[3] Ibid. 9

[4] Lawyers and Justice: An ethical study

[5] Lawyer’s Justice, p 1835

[6] People v Belge, 83 Misc. 2d 186, 372 N.Y. S. 2d 798(1975),

[7] 263 Minn 346, 116 N.W. 2d 704 (1962)

[8]William A. Edmundson, Lawyer’s Justice, Lawyers and Justice: An Ethical Study By David Luban. Princeton University Press,The social Responsibilities of Lawyers: Case Studies by Philip B. Heymann and Lance Liebman. Westbury, N.Y.: Foundation Press 1988 Pp xxviii, 354

Vol. 88, No. 6, 1990 Survey of Books Relating to the Law (May, 1990), pp. 1833-1857

Published by: The Michigan Law Review Association,

[9] William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wisc L. Rev, 29, 36

[10] David Luban, Lawyers and Justice: An Ethical Study 20 (1988); Murray L. Schwartz, The Professionalism and Accountability Of Lawyers, 66 Cal. L. Rev. 669, 671 (1978)

[11] RG. Pearce, The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudnce, and Legal Ethics, 75 Fordham L. Rev. 1339 (2006)

[12] Stephen E. kalish, David Hoffman’s Essay on Professional Deportment and the Cultural Legal Debate, Volume 61, pg 56 Issue 1, Nebraska Law Review (1982),

[13] Id. 20

[14] Supra 23

[15] Russel G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Code, pg 249, (1992),

[16] Russell G. Pearce, The Legal Profession as a Blue Slate: Reflections on Public Philosophy Jurisprudence, and Legal Ethics, Fordham Law Review ,Vol. 75, pg 1354, (2006),(Professionalism Both Preserves and Narrows Lawyer’s Obligation to the Public Good).

[17] Robert H. Wibebe, The Search for Order: 1877-1920. At 17, 116 (1067)

[18] Russell G. Pearce, Professionalism Paradigm Shift

[19] Christine Parker, Philosophical Legal Ethics: Ethics, Morals and Jurisprudence, Legal Ethics, Volume 13, Part 2 available at

[20]James E. Fleming, The lawyer as Citizen, 70 Fordham L. Rev 1699 (2002) available at

[21] ABA Code of Professional Responsibility(1978), cited in The lawyer’s Moral Paradox, available at

How can they defend people who they know are guilty?

The Bar Council of India issued notices to two defence lawyers for their remarks in a documentary "India's Daughter", depicting the brutal gang-rape and murder of a paramedic student in Delhi in 2012 that sparked massive outrage and condemnation.[1] Relating the statements above with this incident is that it was immoral on the part of the lawyers not only in relation to the public sentiments but also to the lawyer community at large.

The question which remains debatable is ‘whether the concern of legal ethics is the morality of lawyers, the morality of clients, or the morality of law’? It is because the defense lawyers are trapped in between personal and professional morality. They are obligated to follow the rules of code of conduct of legal ethics but sometimes it comes in conflict with the lawyer’s moral conscience. Defense lawyers have to face this question throughout their lives that how can they defend people who they know are guilty?

[1] Bar Council Issues Notices to Defence Lawyers for Remarks in Nirbhaya Documentary All India | Reported by A Vaidyanathan | Updated: March 07, 2015 12:28 IST, available at

Brock Peters and Gregory Peck in To Kill a Mockingbird (1962).
Brock Peters and Gregory Peck in To Kill a Mockingbird (1962).


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