Over at the Ravings of John C. A. Bambenek is a post titled The Moral Responsibilities of Lawyers which focuses mainly on the ACLU but makes some broad complaints and observations about the legal profession as a whole that I don’t completely agree with.
For example:
The way our judicial system works is that largely you can do anything you want until you are challenged on it (either criminally or in civil court). Then a judge decides between which two sets of legal arguments he buys and that becomes case law. When the Supreme Court does this, it becomes the de facto law of the land. Lawyers may insist that they don?t shape or make the law, but I think this is largely an attempt to exonerate them from any social responsibility for their actions.
Though highly simplified, this is a more or less accurate characterization of how the legal system works…..to a point. Neither judges nor lawyers make up the law from whole cloth; it is always based upon the interpretation of precedent (case law) of some sort, even if it results in a rejection of previous case law. In addition, judges (and lawyers) are often confined by laws passed by the legislative branch in what they can and cannot do and argue. For example, the U.S. Code and the law of every state have limits on how long you can take to file a lawsuit or bring criminal charges against someone. File your case, or try to bring charges, after that date and you’ll be out of luck. These statutes of limitation are not something made up by judges, but something passed by the legislature that controls what judges can do. A judge who ignores one of these limitations periods will be reversed on appeal. A lawyer who forgets to file his clients case before the limitations period expires will be subject to a malpractice lawsuit. Lawyers and judges do shape and make the law but they aren’t alone in doing so.
Lawyers are officers of the court and they serve a particular purpose in our society. They do, I would argue, have higher responsibilities than simply advocating and fighting for their clients. Lawyers have created a litigation climate where there is no such thing as an accident; only a right to collect money from whomever has the deepest pockets. The vigorous defense of rapists has led to women not coming forward and pressing charges because the lawyer will simply keep calling the woman a whore and put her sex life on trial. Our criminal system is less a measurement of guilt and innocence than a measurement of whether the police follow every single mundane procedure (some legitimate, some outright dumb) and if the police slip up, criminal walks.
First of all, nearly every state in the country has “rape shield laws” which pretty much make it impossible for defense attorneys in rape trials to even ask about a victims sexual history, even in situations where such questions might be relevant to the guilt or innocence of the accused.
Second, most of the “mundane procedures” that result in criminal charges being dismissed involve the protection of Constitutional rights guaranteed by the 4th, 5th, and 6th Amendments.
Finally, it is true that we are officers of the Court. This means that we have responsibilities to the system that sometimes even over-ride our ethical duties to our clients. We cannot misrepresent the facts or law applicable to a case to the Court. We cannot knowingly participate in a “fraud on the Court” such as perjury. And, we cannot use the legal system as a toolto harasss our client’s opponents.
Being an officer of the court does not mean, however, that we have an obligation not to advance our clients interests if it would be harmful to “society.” This is not the premise upon which our legal system is based.
Lawyers hide behind their clients saying they are simply vigorously defending their client?s interest. Society would be better off if lawyers realize that they have an obligation to society to create a fair and just system. It is time lawyers stop hiding and absolving themselves of responsibility and acknowledge that they have ethical responsibilities beyond lining their pockets with 40% of multi-million dollar judgments.
Whether its the OJ Simpson case, the Michael Jackson case, or the litigation filed by “civil rights” groups from both sides of the political aisle, we can all point to aspects of the legal system we don’t like. There are also, I can attest, far too many bad, or simply unethical, lawyers practicing and victimizing clients on a daily basis. That said, while reform is certainly called for, scrapping the system entirely is certainly not warranted.
The American legal system is far from perfect, but it is built on the theory that the truth is most likely to come out when each side is permitted to have its case presented, within the confines of the law, by an advocate of its choosing. Except for the situations noted above, a lawyer’s primary duty is to represent his or her client zealously within the confines of the law. A lawyer with competing obligations to society and his client is a lawyer who will ultimately not act in his client’s best interests.
