MonoRealism Philosophy Site

It's The Law

Part E

In Part D we introduced legal ethics, looking at the ethics governing police, judges and juries. What about the lawyers?

Lawyer's Ethics

The most complex question of ethics belongs to the lawyers. After all, especially in adversarial systems, lawyers represent both sides. Thus, they fight for both the guilty and the innocent. This has led to a sometimes de facto, sometimes explicit morality that a lawyer's primary ethical principle is to act in the narrow best interests of their client.

However, that is not valid: simply because it contradicts fundamental ethical principles. Lawyers are no less bound than judges, police and juries to be concerned solely with what is true and what is just. Yes, while they are taking someone's money they are bound to do their best for them. But that is their best in context. That context is truth and justice. What "their best" means is first, to determine the objective truth of the case as best they can; and second, to act accordingly. Thus, if they believe their client is innocent, they must do their best to prove it. If they believe their client is guilty, then how guilty? Are there extenuating circumstances that might reduce or even eliminate the penalty – anything from honest mistakes to justifiable homicide? And if they believe their client is guilty and bad to boot, especially if their client has actually told them so (for "things look bad" isn't the same as "known to be guilty"), then the best they can do for their client is to tell them to cop their punishment or seek another lawyer. A lawyer who defends people irrespective of their guilt is not acting ethically or honourably, but is aiding and abetting crime and shares in their clients" guilt. It is also worth a reminder that it is not actually in a criminal's objective, long term best interests to get away with it. It is in their best interests to be caught and punished if that can help persuade them to give up crime. To be moral is in one's best interests.

The primary job of lawyers is to uphold justice, which is an honourable profession. So it is a sad indictment that popular opinions of lawyers tend to range from Doonesbury's "a lawyer is a man skilled at circumventing the law" to Shakespeare's "first thing we do, let's kill all the lawyers." Like the police and judges, however, it is the duty of lawyers to display the virtues required to earn the respect of the people.

Chasing Dollars

One special corner of lawyer's ethics worth examining in more detail is the "ambulance chasing" lawyer. This exists in forms from the literal ambulance chaser to those who would take on any case where they smell the chance for a percentage of a large monetary settlement. Their essence is prompting or encouraging dubious law suits in order to enrich themselves by a rationale akin to entering the lottery: they might waste a lot of time and lose many suits without being paid, but an occasional success more than pays for it.

To a large extent, they are merely doing what the system allows them to, so they thrive under non-objective law, which unfortunately has infected our legal systems. Under the influence of altruism, pity for people who suffer has translated into doctrines that somebody else must pay, and the criteria for "responsibility" have been bent grotesquely (generally involving blaming manufacturers or anyone else who actually provides anything people want, purely because they make things or do things, and things are what injure people).

So the primary solution to the injustices that result is reform of the law itself: with proper, objective means for determining responsibility for harm, including a proper understanding of risk and individual responsibility. It is a manufacturer or service provider's duty to disclose any special risks that a normal person can't be expected to know. It is however everybody's responsibility to realise that everything has some risk and to assume the responsibility of their own decisions (another basic principle people need to be taught at school). People who think that they have a right to sue their doctor if he or she makes a mistake, should consider what a doctor should rightly say to someone who walks into their office and demands "heal me, but if you make any mistakes I'll ruin you!" The doctor should tell them to go heal themselves. Doctors will of course compete for patients with not only their skills but whatever guarantees they are willing to make: but nobody has a right to impose unrealistic demands of perfection.

In addition to that, I suggest that two procedures could greatly help reduce the temptation to theft by lawsuit.

First, the use of "unspecified damages" has no place in an objective court of law. That is just a straight admission that the suit is not objective, but is an attempt at hitting the jackpot. If one has no idea of how much damage one has suffered, then that can be taken as an admission that no damage was suffered, and the case ends right there.

Second, the whole "pay nothing unless we succeed, but then pay me a percentage" gambit needs reform. A case could be made for regulation of lawyer's practices, as they are a component of the legal system and therefore involved in the whole issue of objective control of the use of force. However I think that is a stretch, and that the arrangements between lawyers and their clients should not be controlled: like everyone else, they have the right to voluntary trade under mutually agreed terms if force and fraud against other parties is not involved. And there would be genuine cases where such an arrangement could be fair and just (for example, someone has been genuinely harmed and can't pay for a legal case, possibly because they have been harmed). However, one simple change would stop a lot of problems: if they lose, the lawyer pays to the court or defendant the cut they would have received had they won (or a percentage of that, depending on the court's judgement of the case's merits). Crime shouldn't pay, in any form: and holding lawyers financially responsible for their actions would stop this form of crime-by-law from paying.