HWLesson 5 

Lesson Five includes ONLY Chapter Eight.

Chapter 8 assignment:

Q1.Define ‘legal paternalism’. 

Q2.  List some laws justified by legal paternalism. What is the rationale  for having such laws. List a law that we have on the books now that is  justified by legal paternalism that you think should be repealed and  why.

CHAPTER 8:
Law and Legal Professionals
Lecture Slides prepared by Cheryn Rowell

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Administers justice
Enforces rights
Is a tool of behavior change
Is educative
Natural law: Laws inherent in the natural world that can be discovered by reason.
Positive law: Laws written and enforced by society.
Law

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Protection from Harm
Social contract theory holds that people sacrifice certain freedoms in exchange for the protection of society.
How much freedom should be sacrificed?
Only the minimum necessary to protect the liberty of others.

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Justifications for Law
The harm principle: to prevent harm to persons other than the actor (assault, robbery, arson)
The offense principle: to prevent serious offense to persons other than the actor (public indecency or lewdness)
Legal paternalism: to prevent harm to the actor (seat belts)
Legal moralism: to prohibit conduct that is inherently immoral (gambling)
Benefit to others: to provide some benefit to persons other than the actor (toxic waste dumping)

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Protection From Self (Paternalism)

Laws that prevent people from harming themselves.
Ethics of care: OK—behavior is “good” for the subject even though he or she may not agree.
Utilitarianism: OK—such laws reflect a “public good.”
Ethical formalism: NOT OK—violates the concept of treating all with regard.

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Paternalism with Restrictions?
Should be as limited as possible.
Should only apply if a person is incapable of making a competent decision.
Should seek only to prevent a serious and irreversible error.

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Protection of Morals (Moralism)
The state often makes laws based on moral standards, even though there is no consensus within society about these moral standards.
Some behaviors are defined as “wrong” and are prohibited, although those involved in them are consenting.
Legal moralism may change through time.
The U.S. Supreme Court upheld Georgia’s right to declare sodomy illegal in 1986. In 2003, the same court declared Texas’s law against same-sex sodomy unconstitutional.

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Paradigms of Law
Consensus paradigm
Society is a community of like-minded individuals who agree on goals important for ultimate survival.
Conflict paradigm
Society contains competing and conflicting interests. Governance is based on power; if some win, others lose, and those who hold power promote self-interest.
Pluralist paradigm
Society contains competing interests, but more than two basic interest groups exist; the power balance may shift as part of the dynamics of societal change.

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Perceptions of Judicial Processing
The Ideal:
The American Justice system is fair and unbiased.
Two equal advocates, with a neutral judge, arrive at the truth.

The Reality:
Most defendants are represented by overworked and/or inexperienced advocates.

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A “Confidence Game”:
Advocacy a pretence
Individualized justice a pretence
Bureaucratic Justice:
Bureaucratic efficiency supplants goal of justice
Presumption of guilt (plea bargaining)
The Wedding Cake Model:
The few “serious” cases are the top layer
Bottom of the cake represents the majority of cases
Bottom receive mere token of justice process
Perceptions of Judicial Processing

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Rules of the Justice Game (Dershowitz)
 
Rule I: Almost all criminal defendants are, in fact, guilty.
Rule II: All criminal defense lawyers, prosecutors, and judges understand and believe Rule I.
Rule III: It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.
Rule IV: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.

Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV.
Rule VI: Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.
Rule VII: All judges are aware of Rule VI.
Rule VIII: Most trial judges pretend to believe police officers who they know are lying.

Rules of the Justice Game (Dershowitz)

Rule IX: All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers.
Rule X: Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.
Rule XI: Most judges and prosecutors would not knowingly convict a defendant whom they believe to be innocent of the crime charged (or a closely related crime).
Rules of the Justice Game (Dershowitz)

Rule XII: Rule XI does not apply to members of organized crime, drug dealers, career criminals, or potential informers.
Rule XIII: Nobody really wants justice.
Rules of the Justice Game (Dershowitz)

The Attorney-Client Relationship
The Legal Agent model defines the lawyer as neither moral nor immoral, but merely a tool.
Under the Special Relationship model, the lawyer places loyalty to the client above all other considerations.
Under the Moral Agent model, the lawyer must adhere to his or her own moral code.

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Legal Agent vs. Moral Agent
“Hired gun”
Promotes client’s interests and performs client’s will
Argument that this is the role of the attorney and ethical standards and rules keep attorneys from doing illegal or unethical acts
Maintains own values of truthfulness, moral courage, benevolence, trustworthiness, and moral autonomy
Will refuse to perform acts that violate personal code of ethics
Argument that ethical rules are easily circumvented and each attorney must practice individual morality

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Cohen’s Moral Principles for Lawyers:
Don’t treat people merely as the means to winning cases
Treat similar people similarly
Don’t deceive the court
Make reasonable personal sacrifices for morally good causes
Don’t financially support or profit from wrongful acts
Avoid harming others while representing your client
Be loyal to your client; don’t betray confidences
Make moral decisions; act consistently upon them
Legal Agent vs. Moral Agent

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Criticisms of Cohen’s Principles:
They are naïve and wrong on several counts

Existing rules already prevent unscrupulous acts

Decisions regarding justice and morality are so subjective that it is impossible for them to be judged

A lawyer acting as a moral agent would forfeit client trust by substituting his or her own moral code for the client’s
Legal Agent vs. Moral Agent

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Ethical Standards for Lawyers
Model Code of Professional Responsibility
Model Rules of Professional Responsibility
Restatement of Law Governing Lawyers
Criminal Justice Standards
Each state bar association can sanction offending lawyers or recommend suspension of their law license.
Many complain that bar associations ineffectively police their own ranks.
While law schools require ethics courses, many believe that, in practice, ethical considerations are secondary.

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Thinking Point
In the first quarter of 2010, a public defender from San Francisco accused the district attorney of outright obstruction of justice and unethical conduct by refusing to release the district’s law enforcement officers criminal and misconduct histories for use in trial. The district attorney’s office is legally obligated to hand over such information to the designated defense. By neglecting to hand over such information, hundreds of cases are in jeopardy of mistrials.
Was the DA’s act unethical?
Does it violate the legal agent? Moral agent? Why?

Attorneys cannot abandon their clients unless:
the legal action is for harassment or malicious purposes,
continued employment will result in violation of a disciplinary rule,
discharged by a client, or
a mental or physical condition renders effective counsel impossible.
Responsibility to the Client

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Attorney–client privilege prevents compelling attorneys to disclose confidential information about their clients
Exceptions that permit revealing confidences include:
• When clients consent
• When required by law or a court
• To defend against an accusation of wrongful conduct
• To prevent clients from committing crime or fraud
• To prevent, mitigate, or rectify financial injury to another
Responsibility to the Client

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ABA’s Model Code of Judicial Conduct
“A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
“A judge shall perform the duties of judicial office impartially, competently, and diligently.”
“A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”
“A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”

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