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< | Lawyers, Justice and Ethics |
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> | Is being unjust unethical? |
| | Rafael Boisset |
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< | During almost all my career through law school back in Peru, and moreover during the first years, Professors taught as that the seek of justice must be a constant in our professions. While being a law student, I always thought that when becoming a lawyer I should always look for justice while advising my clients. |
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> | Introduction |
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< | I have been a lawyer for almost five years and know I think that that idea of justice is not only untrue, but it does not apply to my reality. I believe judges are called to seek justice, not lawyers. Lawyers should advice their clients in the best of their interests even if by doing that both the lawyer and the client know that the result may be unfair. |
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> | Throughout my time at law school in Peru, but especially during the first year, my Professors taught that seeking justice must be a constant ideal in the legal profession. Indeed, while I was a law student I thought that I would always strive for justice while practicing my profession as a lawyer. |
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< | I believe that such statement generally creates dissidence because there is a misconception of the legal profession. In my view, a lawyer (as any other professional) should act ethically but not necessarily with justice. In deed, I believe justice and ethics are different concepts that should be applied indistinctly. |
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> | I have been a transactional lawyer for almost five years. I have also been involved in several trials, both civil and criminal, as part of my work in a so called big law firm. I have been exposed to several situations in which my legal advice would not exactly be defined as ‘just’ or ‘fair’ by everyone. Those situations placed me in an uncomfortable position as I felt I was doing something wrong; I thought I was doing something unethical. I began questioning whether behaving ‘unfairly’ was the same as acting unethically. I concluded that it was not. |
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< | Justice is a very broad concept; we could go back to ancient definitions like those from Plato and Socrates, or we could look earlier to Locke or Rousseau. These authors may differ in their theories, but they all share a general view fairness of equity. Treating one side with the same conditions one treat the other side. The sense of justice is something that ones developed during ones growth. The best way to teach how to be just is by example. Justice is more than a concept that can be read in papers. |
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> | Justice |
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< | Unlike, ethics is more related to the social behavior of what is wrong and what is right; what is socially acceptable. Ethics may vary from different customs and believes. Ethics can be easily taught as they are norms of conduct selected and accepted by a group of people. What is unethical here in the U.S. may not be ethical in Peru, or even in a more conservative society around the world. |
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> | Justice is a very broad concept. We could go back to ancient definitions like those from Plato and Socrates, or we could look to Locke or Rousseau. These authors differ in their theories, but they all share a general view of fairness, equity or equivalency. |
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< | It is not my intention to create a debate on what is justice and what is ethics, as tones of books has been wrote in history about that. But, my intention is to differentiate both concepts as I believe one could be both unjust but ethic in a determined conduct. For instance, a situation where a settlement results to be unfair to one party that decides to accept it because it was less costly than going to trail is not unethical, but again may be unfair. |
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> | Ethics |
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< | All persons are entitled to be treated with justice; hence is a renounceable right, and the voluntary renounce of such right is socially accepted. Unlike, all unethical conducts (which could be equivalent to giving up to a just treat) are socially rejected. This is an example that shows the difference of the boundaries of such concepts. |
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> | Ethics is more related to the social behavior of what is wrong and what is right; what is socially acceptable. Ethics may vary from different customs and beliefs. Ethics can be easily be taught as the standards are norms of conduct selected and accepted by a group of persons. What is ethical in the U.S. may not be ethical in Peru, or in a more conservative society around the world. |
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< | I believe “justice” is a virtue desirable and admirable in any person, but I do not see such virtue as mandatory for a lawyer. Lawyers are common persons that decided to study law; which means to study a legal system in order to know it, and applied it to what ever the lawyer decide to do for living; i.e. trial lawyer, tax lawyer, corporate lawyer, entrepreneur, director of a large corporation, judge, professor, public servant, politician, etc. |
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> | The roles of lawyers |
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< | Lawyers as normal people are not different than any other professional. But, some kind of lawyers, particularly those who decide to work as advisors of how a legal system should be applied (practitioners of law), are more exposed to situations were justice and ethics are present. And that is because the legal system is supposed to create a balance in society, is suppose to dictate what is better for society, either if economic standards are used, or more traditional concepts of fairness. Hence, the chances that a practitioner of law faces situations were justice is an issue are higher than other professional like an arquitect, doctor, business man, among others. |
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> | Lawyers can exercise different roles within their profession, such as legal advisors, either in the private or in the public fields, or as judges, among others. Lawyers who act as legal advisors can also play different roles such as in civil or criminal procedures, private transactions, tax planning, and others. |
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< | Notwithstanding, the fact that lawyers faces such situations more often does not mean that they should always seek for justice while practicing law. Different is ethics, were I do believe it must be present in all situations. |
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> | Both legal advisors and judges have different roles in society, but ethics is essential to the behavior of both. Consider though: can judges and legal advisors be unjust and unethical at the same time?
Does the fact that a judge reached an unfair resolution to a controversy mean that the judge acted unethically? Has a legal advisor who defended his or her client’s interest in an unfair way acted unethically? |
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< | In conclusion, I believe justice and ethics are virtues that should be present in all professions, and more in legal practitioners. Nevertheless, a lawyer who does not seek for justice in advising a client but acts in an ethical manner is acceptable. |
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> | Justice and ethics |
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> | It is not my intention to create a debate about justice and ethics. My intention is to differentiate between both concepts as I believe being unjust is not necessarily unethical. An adviser should look for the result that best serves his client’s interest, which could be looking for justice, or looking for an unjust result (in terms of equivalency) and even tough keep being ethical. For instance, it is ethical for a lawyer to negotiate a settlement to a dispute where the settlement is so one-sided that the result could be characterized as very “unfair”, but the other party accepts the deal to avoid the cost of going to trial. |
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> | In the case of judges, the line is thinner. Judges have the goal of giving justice to a community by following a formal procedure which is applying the law. Laws are not always fair, and hence a judicial decision which applies a written law could be “unfair”. In that case, the judge will be acting ethically but will be delivering an “unfair” solution to a particular controversy. |
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> | Conclusion |
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- You found yourself having to distinguish ethics from justice, at great length, unnecessarily. You could have dealt with the matter simply by pointing out that lawyers' roles differ. A lawyer representing a client seeks justice for her client. A lawyer acting as a mediator, a judge, or as Louis Brandeis' "lawyer for the situation," tries to achieve justice for the relevant parties or the community. All parties strive to play their roles ethically.
- Having said which, in fifty words or so, it would then be possible to decide what larger or less familiar point it would be desirable to make. What we have here seems to me more the first step in an essay than the essay itself.
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> | I believe there are situations where lawyers, despite the role they are playing, could be acting unfairly but in an ethical way, and hence, such conduct should not be socially stigmatized. |