Legal Ethics

I argue that it is morally wrong for a lawyer to pursue a legal outcome that he knows to be unjust, such as the acquittal of a guilty client or the triumph of the wrong side in a lawsuit.

This is a case that should go to the European Court of Human Rights. A decent, senior qualified family doctor was accused by his mentally ill daughter of sex abuse. Without real evidence except for what the girl told another mentally ill patient at a psychiatric hospital she stayed at for several years, and wit just two witnesses, one a younger child wo saw none of the accused offences, and the other parent, struck off the General Medical Council Register for (...) drunk driving more than once, the case was fitted up by those who are rampantly seeking to raise statistical numbers for child sex abuse offences by high level persons- a bizarre situation and a travesty against tis family doctor's human rights, because a judge can use his 'discretion' to send a much needed family doctor to 18 years in jail. The International Community should scrutinize the United Kingdom's Criminal Justice System. (shrink)

The trial took place at Bristol Crown Court, England, United Kingdom for the murder of Joanna Yeates, and Dr Vincent Tabak was the Defendant. The author attended at court for this trial and this paper notes many of the obvious and unsatisfactory legal and procedural points in this trial. Dr Vincent Tabak was convicted of the murder at this trial. Of course the jury were not to know the finer points of law as the lower court judge did not advise (...) the jury of any such points before they adjourned to make their decision. All but one concluded that Dr Tabak was guilty as charged, although even the charge was vague and all-encompassing as he was charged with ‘murder between Friday 17 December 2010 and Sunday 19 December 2010’. Defence counsel, very eminent barrister-at-law, appeared to be cowed by the other side and let them walk all over this case procedurally. For example, prosecution counsel handed him 1200 pages of evidence on the first day of the trial, as if to FULFIL disclosure obligations. E was stunned and asked the court for time off. But this was never again discussed. -/- The lower court judge appeared as if he had already decided on the case. When Defence Counsel asked him if he had before him a copy of a certain document, he flippantly say he had it but had left it on his desk in his room. When Defence Counsel, of international renown, was ready to present his opening speech and cross-examination of his client, Dr Vincent Tabak, this lower court judge dismissed the jury to their lunch break knowing that counsel was going to speak. Court had to be adjourned and the members of the jury quickly assembles by the court porters as they were leaving the court, which must have hampered their interest in what counsel’s statement said. A photograph of a dead body by a roadside, allegedly, Miss Yeates, was shown by projector slide a dozen irrelevant times during the trial period, thus embedding that photograph in the jury’s mind. The computer evidence leaves much to be desired and could, some suggested, easily have been concocted by the prosecution team, abusing the law of metadata evidence. Te lady who presented it did not give the court her qualifications and her expertise if any- and much more that beggars belief and loses trust in the British Criminal Justice System, such as it is, following ‘form over substance’. -/- . (shrink)

of (from British Columbia Philosophy Graduate Conference) In moral reasoning, we sometimes encounter situations where what our ethical principles tell us to do and what we actually do conflict. In legal ethics, such anomalies arise for lawyers in defending a client who commits perjury. Wallace argues that such lawyers have not mastered the practice of truth-telling, and thus suffer from some sort of moral deficiency. However, due to the complexities of legal practice, particularly the value of truth and evidence, lawyers (...) must learn to accommodate cases of perjury into their moral taxonomies, and this is not a simple feat. In addition, I examine the ethics of lying in everyday life, such as in cases of protecting reputation or feelings. As such, I posit that Wallace is oversimplifying the situation and individuals in “perjured client” cases actually have a better and more realistic grasp on the exercise of practical ethics than he claims. (shrink)

School boosters are tax-exempt organizations that engage in fundraising efforts to provide public schools with supplementary resources. This paper argues that prevailing forms of school boosting are defeasibly unjust. Section 1 shows that inequalities in public education funding in the United States violate John Rawls’s two principles of domestic justice. Section 2 argues that prevailing forms of school boosting exacerbate and plausibly perpetuate these injustices. Section 3 then contends that boosting thereby defeasibly violates Rawlsian principles of nonideal theory for rectifying (...) injustice. Thus, boosting should be presumptively either made illegal or substantially reformed. Finally, Section 4 responds to potential objections. (shrink)

Despite the plethora of freedom of religion literature (under section 2(a) of the Canadian Charter of Rights and Freedoms), the corresponding literature on the freedom of conscience is minimal. To further the discussion on the freedom of conscience, I rely heavily on the philosophical literature to make an important distinction; the difference between individual- based and communal-based conceptions of conscience. Whereas the former is plagued with subjectivity, making it difficult to conceptualize a working framework for the Charter right, the latter (...) offers a promising foothold to rise above subjectivity and find a firm footing based on communal relations. In emphasizing the importance of the dialogical nature of human beings and the relational necessity undergirding moral judgements, I argue that the concept of conscience should be understood and practiced in community, rather than individually. (shrink)

The Making of Shia Ayatollahs offers both insider and outsider views of how a scholar becomes an Ayatollah in Shia Islam, how ayatollahs suggest diverse perspectives on faith, and how the grand ayatollahs are recognized by a balance of many factors including piety, scholarship, popularity and networking. This book consists of two parts. The first begins with the core value of knowledge in Islam and the Ulama’s interpretation of jurisprudence and the subjects, values, and methodology they have developed and are (...) applying to challenges found in the faithful practices in modern life. The author reveals the mechanisms of madrasa, hawza, their curricula, and the recognition of a scholar as an ayatollah. The second part elaborates the rich and sometimes bitter pluralism and debate within the community of ayatollahs regarding topics including denominational identity and intra-faith work, Sufism and mysticism, Philosophy (falsafa and wisdom), modernization and the West, political power and government, and women in public life. After providing a historical background on each subject, the author takes the reader into the heart of current debates among ayatollahs in Qum, Mashhad, Najaf, and Beirut without sacrificing accuracy and originality to educate a wide range of readers. (shrink)

Epigenetic research has brought several important technological achievements, including identifying epigenetic clocks and signatures, and developing epigenetic editing. The potential military applications of such technologies we discuss are stratifying soldiers’ health, exposure to trauma using epigenetic testing, information about biological clocks, confirming child soldiers’ minor status using epigenetic clocks, and inducing epigenetic modifications in soldiers. These uses could become a reality. This article presents a comprehensive literature review, and analysis by interdisciplinary experts of the scientific, legal, ethical, and societal issues (...) surrounding epigenetics and the military. Notwithstanding the potential benefit from these applications, our findings indicate that the current lack of scientific validation for epigenetic technologies suggests a careful scientific review and the establishment of a robust governance framework before consideration for use in the military. In this article, we highlight general concerns about the application of epigenetic technologies in the military context, especially discrimination and data privacy issues if soldiers are used as research subjects. We also highlight the potential of epigenetic clocks to support child soldiers’ rights and ethical questions about using epigenetic engineering for soldiers’ enhancement and conclude with considerations for an ethical framework for epigenetic applications in the military, defense, and security contexts. (shrink)

In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on the (...) bench. This article examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness. (shrink)

In this chapter, we consider the plausibility and consequences of the use of the term “honest errors” to describe the accidental killings of civilians resulting from the US military’s drone campaigns in Iraq, Syria, Afghanistan, and elsewhere. We argue that the narrative of “honest errors” unjustifiably excuses those involved in these killings from moral culpability, and reinforces long-standing, pernicious assumptions about the moral superiority of the US military and the inevitability of civilian deaths in combat. Furthermore, we maintain that, given (...) the knowledge-distorting practices within the US military’s organizational structure, few if any civilian deaths from drone strikes meet the criteria of a genuinely morally excusing “honest mistake”. Instead, these accidental killings often reflect objectionable attitudes of relative disregard for the safety of civilians. These attitudes are, we argue, sufficient to warrant the attribution of blame and moral responsibility, both with respect to certain individual actions and with respect to the US military as an institution. In light of this, we propose incorporating a Principle of the Moral Equality of Non-combatants into military assessments of what counts as “acceptable risk” to civilians. This would go some way, we argue, to redressing the ongoing injustice inflicted on the victims of civilian killings by the failure of the US military and US political leadership to take moral responsibility for unjustified civilian deaths. (shrink)

This volume reviews and takes stock of legal ethics, at a time when the legal profession globally is experiencing considerable change and challenges, through a re-evaluation of writings that are in some way foundational to the field. Legal ethics, understood here as the study of the ethics and professional regulation of lawyers, has emerged as a novel and important field of study over the last 50 years. It is also one that displays considerable diversity in its scholarship, with distinctive philosophical (...) and interdisciplinary approaches emerging over the years to underpin and supplement the doctrinal 'law on lawyering'. With contributions from leading and emerging scholars from the United States, Australia, Canada, the Netherlands, New Zealand and the United Kingdom, this collection offers not just critical insights into the authors' chosen texts, but a thought-provoking commentary on the current state of legal ethics scholarship and its future directions. In addition to being an essential resource for scholars and students of legal ethics theory, it will also be of interest to academics and researchers in legal theory, the philosophy of law, and applied ethics. (shrink)

Whether Social Media Companies (hereafter, SMCs) such as Twitter and Facebook limit speech is an empirical question. No one disputes that they do. Whether they “censor” speech is a conceptual question, the answer to which is a matter of dispute. Whether they may do so is a moral question, also a matter of dispute. We address both of these latter questions and hope to illuminate whether it is morally permissible for SMCs to restrict speech on their platforms. This could be (...) part of a larger argument, when we do not explicitly offer here, that states ought not to forbid SMCs from censoring. We do not focus on legal statutes or precedent. We argue that nonstate actors can (as a conceptual matter) and may (as a moral matter) impede the freedoms of others to express themselves. That is, barring rare emergencies, nonstate actors may censor individuals even when states may not. (shrink)

This chapter demonstrates that counter-arguments against such a right from analytic legal theory, among them Steiner’s, do not succeed. Although there are no rights on the part of post-mortem persons, a right to bequeath can be explained by and built around posthumous interests of the testator that might be adversely affected after his or her demise. This perspective, however, would have to be based upon an interest theory of rights. For proponents of a will theory of rights such as Steiner, (...) the Hohfeldian approach offers a different and more adequate way to reconstruct a right to bequeath, not as a claim-right, but as a legal power to create a persisting legal relation. The existence and validity of such a legal relation is independent of whether the person who created it can still be ascribed or is able to express any subjective interest in it or any direction of will. If this legal relation is not honoured, if the legal duties created and defined by it are not fulfilled, the testator’s right to bequeath is infringed upon. As there are no limits to the right to bequeath based on conceptions of individual rights or the technicalities of legal theory, the chapter will point to more promising paths for a normative critique of the right to bequeath. (shrink)

We address the ethics of scenarios in which one party entraps, intentionally tempts or intentionally tests the virtue of another. We classify, in a new manner, three distinct types of acts that are of concern, namely acts of entrapment, of intentional temptation and of virtue testing. Our classification is, for each kind of scenario, of itself neutral concerning the question whether the agent acts permissibly. We explain why acts of entrapment are more ethically objectionable than like acts of intentional temptation (...) and why these, in turn, are more ethically objectionable than like acts of virtue testing. Along the way, we scrutinize, and eventually reject, the view that acts of entrapment are ethically unacceptable because intentional temptation is involved in entrapment. (shrink)

Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...) that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes. (shrink)

This book proposes a new model of professional ethics enabling lawyers to advise clients upon both the law and ethics. This will better protect clients, and society, and enhance lawyers' professional obligations. The current model of legal ethics, developed in the 19th century, specified that the role of lawyers was only to interpret the law, not also to give ethical advice. This was acceptable to lawyers, clients, and society at that time. However, this is not the case now and legal (...) ethics no longer reflects the needs of modern legal practice. This book draws on moral philosophy to present a new model of legal of ethics that explains the analytical process to include ethical advice. It analyses the potential harm of the present model to the legal profession who have duties to the law and justice that may compete with demands by clients to serve them. Further, lawyers' duty to clients to act in their best interests is sometimes not adequately fulfilled as legal ethics does not permit lawyers to give ethical advice even if it may be in clients' best interests to do so. The work includes a detailed case study of corporate law practice to show why a new legal ethics is required. Other case examples are provided to demonstrate that lawyers practicing in all areas of law encounter ethical issues and they too will benefit from a new legal ethics. The book will be essential reading for students, academics, lawyers and professional bodies. (shrink)

Mark Greenberg argues that legal obligations are those moral obligations created by the actions of legal institutions in the legally proper way. Here I defend three main claims. First, I argue that, although very often misunderstood, Joseph Raz is also a defender of MITL. Secondly, I argue that while both Greenberg and Raz are committed to MITL, they disagree about the conditions under which a moral obligation can be said to be created in the legally proper way. Finally, I argue (...) that Raz’s variant of MITL is better than Greenberg’s. It rests on a more plausible account of authority and it avoids one of the crucial defects threatening Greenberg’s view, namely, its overinclusiveness. (shrink)

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on the U.S. (...) criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)

One’s constitution—whether one is generous or miserly, temperate or intemperate, kind or mean, etc.—is beyond one’s control in significant respects. Yet one’s constitution affects how one acts. And how one acts affects one’s moral standing. The counterintuitive inference—the so-called problem of constitutive moral luck—is that one’s moral standing is, to some significant extent, beyond one’s control. This article grants the premises but resists the inference. It argues that one’s constitution should have no net impact on one’s moral standing. While a (...) bad constitution lowers the chance that one will act morally, it offers significant gains to moral standing should that chance materialize. A good constitution increases one’s chance of performing good acts but for correspondingly more modest gains. This effect should smooth out, and possibly eliminate, the expected impact of constitution on moral standing. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

While the legal concept of a subject of rights is eminently an abstraction, Ricoeur’s philosophical challenge seeks to rethink its identity within the philosophy of action, in correlation with the ideas of capacity, attestation, and recognition. The terminology Ricoeur employs presents some significant marks of this theoretical stance, as he speaks of a “veritable” or a “real” subject of rights as distinguished from the purely formal one. I argue that Ricoeur’s approach to the legal subject attains its highest meaning in (...) connection with the renewal of the semantics of responsibility in a prospective sense. In particular, I contend that Ricoeur’s idea of a “veritable” subject of rights deploys its full theoretical potential in relation to a prospective idea of responsibility in contrast to the “static” perspective of the ascription of rights and duties. Reciprocally, a prospective idea of responsibility deploys its full meaning in relation to a subject of rights not reduced to a legal abstraction since, as far as narrative identity is implied, this subject is and has to be an embodied one. I shall show that the thesis advocating a projection of responsibility towards the future may have some significant theoretical implications, in particular in relation to the effect of techno-scientific development in areas such as Artificial Intelligence. (shrink)

A short story about the pitfals of a new law, the General Act for the Dismantling of Normalising Power and Structures of Privilege, and, more philosophically, about the problems of institutionalizing progressive politics through law. Published in The Cabinat of Imaginary Laws, by Peter Goodrich and Thanos Zartaloudis: Returning to the map of the island of utopia, this book provides a contemporary, inventive, addition to the long history of legal fictions and juristic phantasms. Aimed at an intellectual audience disgruntled with (...) the negativity of critique and the narrowness of the disciplines, this book will appeal especially to theorists, literati, lawyers, scholars and a general public concerned with the future of decaying laws and an increasingly derelict legal system. (shrink)

This study constitutes an ethical analysis through the lens of distributive justice in the case of the Troubled Asset Relief Program (TARP), which was enacted in the midst of the Great Recession of 2007–2009. It begins by engaging with the visions of justice constructed by John Rawls and Robert Nozick, using their insights to locate the injustices of TARP according to their moral imaginations. However, this study argues that Rawls’ and Nozick’s theories of justice primarily envision the nature of law (...) as being restrictive of vice, not as instructors of virtue. Thus, it resources the legal philosophy of St. Thomas Aquinas to demonstrate how the positive pedagogy of law can enable a more just construction of economic rescue legislation, one that not only prevents future repetitions of economic vices and injustice, but is also formative for a society that prizes economic justice and virtues. In doing so, the study proposes two criteria for a more just consideration of economic rescue legislation that embraces law’s positive pedagogy. (shrink)

In 2020, after the first Covid-19 lockdown, several countries implemented a policy of contact tracing and self-isolating for individuals who crossed borders or came into contact with infected people. To enforce these restrictions, some states imposed very harsh monetary penalties for people who violated them. Behind these harsh fines lies an instrumental rationale. They allow the state to avoid implementing a system of labor-intensive and costly surveillance and enforcement. In this article I argue that such severe penalties are extremely unjust. (...) In order not to expose citizens to the risk of being excessively fined, governmental institutions should instead intensify controls. I argue that they owe it to their citizens to increase the surveillance of compliance with self-isolation obligations. (shrink)

This concise book brings behavioral insights to the wide array of topics commonly taught in the required professional responsibility course, including admission to the practice of law, confidentiality, conflicts of interest, representing entities, prosecutorial and criminal defense ethics, litigation and negotiation ethics, legal billing, and managerial and subordinate responsibilities. Behavioral legal ethics relies on empirical research to explore how lawyers actually make ethical decisions in context, rather than how they predict they would decide an ethical dilemma. This approach complements the (...) law of lawyering by seeking to understand how various psychological factors and situational pressures explain and influence decision-making and resulting ethical (or unethical) action. Each chapter explores findings from behavioral science that pertain to ethical decision-making such as motivated reasoning, confirmation bias and other cognitive biases, fast thinking, the fundamental attribution error, wrongful obedience, conformity, moral disengagement, and much more. In addition, each chapter contains relevant case studies and reflection questions to deepen and cement students' understanding of the role of behavioral legal ethics in professional responsibility. Finally, the book offers ideas for individual attorneys and legal organizations to improve ethical decision-making."--Publisher's webpage. (shrink)

Many studies have shown that marijuana can negatively affect the cognitive development of adolescents. For some individuals, marijuana use may also initiate opioid use, dose escalation, and opioid use disorder. States that legalize marijuana should help adolescents through regulation of advertising and availability of marijuana-infused edibles. Such policies may assist in protecting neurodevelopment of the adolescent and young adult brain. The federal government should also remove its prohibition of marijuana sales and use, leaving their regulation to state law-makers.

This paper examines the lawsuits brought by state and local government entities against prescription opioid producers and sellers. It examines their potential liability as well as some of the defenses they might raise. The paper also discusses multidistrict litigation and government lawsuits in state court. It concludes that litigation is not the best solution to the opioid crisis.

The proposed paper presents an argument in favor of a Rawlsian approach to ethics for Internet technology companies (den Hoven & Rooksby, 2008; Hoffman, 2017). Ethics statements from such companies are analyzed and shown to be utilitarian and teleological in nature, and therefore in opposition to Rawls’ theories of justice and fairness. The statements are also shown to have traits in common with Confucian virtue ethics (Ames, 2011; Nylan, 2008).