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3/23/2021

Ethical Dilemmas and Decisions in

Criminal Justice Tenth Edition

Chapter 8 Law and Legal

Professionals

Learning Objectives (1 of 2)

1. Describe the justifications for law, including protections

against harm to others, offensive conduct, harm to self,

and harm to societal morals.

2. Explain the role of law in society and the paradigms

that have developed to understand how law is formed

and enforced.

3. Compare the idea of our criminal law system as an

adversarial system to other descriptions of how the

courtroom works and the relationships between the

legal professionals.

Learning Objectives (2 of 2)

4. Discuss the controversy concerning the role of

advocate as legal agent or moral agent.

5. Describe the history and source of legal ethics for

attorneys and judges. Explain the types of ethical

rules that exist and compare them to the subculture

of winning.

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The Role of Law

• 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.

• Positivist law: Laws written and enforced by society.

• Good Samaritan Laws, common in Europe, are

legislation that prohibits passing by an accident scene

or witnessing a crime without rendering assistance.

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)

Preventing Offensive Behavior

• There are some actions that do not exactly harm

others, but give rise to disgust or offense.

– Public lewdness, disturbing public behavior, noise, or

other actions that infringe on the quality of life of

others can be the subject of laws.

• Vagrancy laws have been overturned by the Supreme

Court

• Courts have upheld “no camping” ordinances to

dissuade the homeless from congregating in a

downtown area.

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Preventing Harm to Self (Legal

Paternalism)

• Laws that protect people from their own behavior.

– Seat belt laws, motorcycle helmet laws, speed limits,

drug laws

• The rules try to create a balance between an

individual’s liberty and government control.

• Paternalistic laws can be supported by an ethics of

care.

Preventing Harm to Self (Legal Moralism)

• In legal moralism law is a moral agent of society, some say in areas where there is no moral agreement.

• Whether an action is moral or immoral is a different question from whether there should be laws regarding the behavior.

• In limited legal moralism there are laws only when violation is of universal standard of morality, as opposed to merely a conventional standard (prevents the situation of some groups forcing their moral code on others).

• Discretion in enforcement patterns is most pronounced in these “gray” areas of crime.

Paradigms of Law

• A paradigm is a fundamental view of the world around

us. It is a model of how ideas relate to one another

forming a conceptual model of the world around us.

– In a consensus paradigm, society is a community

consisting of like-minded individuals who agree on goals

important for ultimate survival; law is functional.

– In a conflict paradigm, society is made up of competing

and conflicting interests; law is a tool used by those in

power.

– In a pluralist paradigm, society is made up of competing

interests, but more than two basic interest groups; law is

tool of power group or coalition.

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The Consensus Paradigm

• Law serves as a tool of unification.

• Law contributes to the collective conscience by showing

us who is deviant.

• In the consensus paradigm:

– Law is representative. It is a compilation of the do’s and

don’ts that we all agree on.

– Law reinforces social cohesion. It emphasizes our

“we-ness” by illustrating deviance.

– Law is value-neutral. That is, it resolves conflicts in an

objective and neutral manner.

The Conflict Paradigm

• Criminal definitions are relative and determined by

those who control major social institutions.

• The regulation of business, instead of the

criminalization of harmful business practices arises

from the ability of those in powerful positions to

redefine their activities to their own advantage.

• Law is repressive, a tool of the powerful, and is not

value-neutral.

The Pluralist Paradigm

• Law arises from interest groups that are in flux.

• The definition of crime may change, depending on

which interest groups have the power to define criminal

behavior and what is currently perceived to be in the

best interests of the most powerful groups.

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First, Let’s Kill All the Lawyers

• Public has little confidence in lawyers’ abilities to live

up to ideals of equity, fairness, and justice.

• Perhaps the best explanation for the longstanding

distrust of lawyers is that they typically represent

trouble.

• People don’t require a lawyer unless they believe that a

wrong has been done to them or that they need to be

defended.

Law and the Legal Professional (1 of 2)

• Indigent Defense

– The system of indigent defense in the country is

extremely underfunded.

– Funding public defenders adequately would cost

money initially, but might reduce mass incarceration.

• The “Criminalization of Poverty”

– Municipalities have begun to utilize the criminal justice

system as a revenue stream by turning court

personnel into debt collectors.

– When fees from offenders are necessary to fun city

services, there is no incentive to reduce crime.

Law and the Legal Professional (2 of 2)

A “Confidence Game”:

• Advocacy a pretense

• Individualized justice a pretense

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

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Legal Agent or Moral Agent?

• 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.

Legal Agent vs. Moral Agent (1 of 3)

• “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

Legal Agent vs. Moral Agent (2 of 3)

• 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.

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Legal Agent vs. Moral Agent (3 of 3)

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.

Ethics for Legal Professionals (1 of 3)

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.

Ethics for Legal Professionals (2 of 3)

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.

• They are discharged by a client, or

• A mental or physical condition renders effective counsel

impossible.

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Ethics for Legal Professionals (3 of 3)

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

Ethical Guidelines for Judges

• “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.”

Culture and Ethics

• The Model Code of Professional Responsibility dictated

that lawyers should be “temperate and dignified” and

“refrain from all illegal and morally reprehensible

conduct.”

• The major subcultural pressure found in many law offices,

including prosecutors’ offices, that sometimes conflict with

formal ethics, is the culture of winning.

• The other major theme in the legal subculture is the

pervasive sense that all defendants are guilty and this

attitude leads to cynicism and unethical behaviors on the

part of both prosecutors and defense attorneys.

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Discussion Questions

1. Do you think people should be forced to help another

person in need? If so, in what situations do you believe

that responsibility ends?

2. Which justification for law is the most prevalent today?

Provide recent news examples.

3. Do you believe public funds should be allocated for

defenders for the poor?