Can lawyers be happy?

[Admiral Yi]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

[MadImmortalMan]

Beeb--Have you ever prosecuted someone under the auspices of a law you didn't believe morally should exist?

Edit: And would you do so if required?

Edit2: Have you ever asked for a penalty that you didn't believe in because the law said that it was required that you do so--like a minimum sentencing requirement?

[The Brain]

Beeb--Have you ever prosecuted someone under the auspices of a law you didn't believe morally should exist?

[Berkut]

As I was reading Berkut's posts, I am reminded of some story where a couple of lawyers knew for 20 years that an innocent man was in prison, but they couldn't reveal it because that would be against their client's interests.  These lawyers did act ethically, though, and they did serve their client's interest. 

more than ethical in most states it would have also been an illegal for the lawyers to disclose what a client said in confidence. The issue is the our system often has rules that themselves are in conflict with each other. At the extremes they create anecdotally bad results but on the whole are believed to accomplish a greater good.

If all clients know that their lawyers take their secrets to the grave then clients are more likely to be fully honest with their lawyers who then have some ability to convince their clients to follow the law or do the right thing in the absence of an applicable guiding legal principle.

In your example, absent the attorney client privilege those two lawyers would have never known who the real killer was in any event.

Knowing your clients secrets can be a burden but it is in fact the cornerstone of our system.

Indeed - the system MUST work like this to work at all.

But that does mean that there are times that lawyers not only CAN do things that are of rather dubious ethics (not to mention just), but that in some cases they MUST do so.

Now, the lawyers have defined "ethics" to mean "doing the things that the system demands that we do (or allows us to do)" when they talk about ethics. But that is not the same as what society in general considers ethical or just. And there are a million examples of attorneys representing their clients engaged in incredibly unethical behavior from the standpoint of anyone outside the world of the client.

Companies arguing that they should not have to pay damages for pollution, or even a lawyer arguing that their client should not have to go to jail for running down some child when their client was drunk off their ass

Hell, that is a an easy counter-factual to Beebs claim:

You are a defense attorney tasked with defending your client from a manslaughter charge for killing a child on a bike while he was allegedly drunk.

Lets craft as onerous a scenario as possible:

This isn't his first DUI charge, or even his 4th. He has had several, including cases in the past where he has seriously injured other, but in those cases he has managed to get off for one reason or another.

The evidence against him is completely overwhelming, except that at some point some trivial procedural error was made, which would invalidate the intoxication test. It is kind of a bullshit invalidation, but you've recognized that you can in fact get the case tossed if you bring it up, all the while being 100% certain that your client was in fact drunk off his ass, and did in fact kill that kids as a result, and what is more, in your judgement it is extremely likely that he will continue to drink and drive in the future.

You can bring this up, and get your client off these charges, and in fact our system demands that you do so - from the narrow definition of legal "ethics" used you are well within your bounds. It is necessary that our system allow guilty men to go free in order to avoid any chance of a innocent man being found guilty.

But we all know this is not a "just" result in the particular, and I could certainly understand a lawyer feeling like an utter piece of shit for doing his job in a case like this - and I would not consider it "ethical", even if it is exactly what the lawyer ought to do.

[Barrister]

As I was reading Berkut's posts, I am reminded of some story where a couple of lawyers knew for 20 years that an innocent man was in prison, but they couldn't reveal it because that would be against their client's interests.  These lawyers did act ethically, though, and they did serve their client's interest. 

more than ethical in most states it would have also been an illegal for the lawyers to disclose what a client said in confidence. The issue is the our system often has rules that themselves are in conflict with each other. At the extremes they create anecdotally bad results but on the whole are believed to accomplish a greater good.

If all clients know that their lawyers take their secrets to the grave then clients are more likely to be fully honest with their lawyers who then have some ability to convince their clients to follow the law or do the right thing in the absence of an applicable guiding legal principle.

In your example, absent the attorney client privilege those two lawyers would have never known who the real killer was in any event.

Knowing your clients secrets can be a burden but it is in fact the cornerstone of our system.

Here's the story Raz is probably thinking of:

http://www.cbsnews.com/news/26-year-secret-kept-innocent-man-in-prison/

A couple things to point out about the situation:

-of course, the lawyers didn't actually know that he was an innocent man wrongfully convicted.  What they did know was that another man, their client, confessed to doing it.  People will often, for a variety of bizarre reasons, confess to crimes they did not commit.

-I think it would be wrong to paint the lawyers as heroes though.  Instead they're put in any defence lawyer's worst nightmare.  Personally, if I were in their shoes (and if I had pretty conclusive proof, not just a confession from a convicted murderer) I'd feel I have no choice but to reveal that information, then watch my career go up in flames.

[Razgovory]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

I'm curious if you consider that unethical.

[Berkut]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

Indeed, this is what my sister is going through right now.

She is involved in a medical mal-practice suit where the details of the case are pretty much open and shut. There is no real issue at all of it going to trial (the doctor would lose badly, and my sister is an extremely sympathetic victim).

But the lawyers for the doctor and hospital are doing the standard practice in these cases, which is to delay the process as much as possible. Demand plenty of depositions. Demand more depositions, ,even on points that are pretty much already decided. Ask for delays, use all the procedural tricks possible to draw it out.

All the while, offer very low-ball settlements in the hopes that her financial situation simply cannot wait them out.

And no, this isn't harming anyone's reputation - in fact, when the lawsuit started my sisters lawyers told her this is exactly what the other legal team would do, because this is what they always do, because a lot of time it works.

Is that ethical?

[crazy canuck]

And as I keep saying, the unethical way works, but not for long.

Well, as PJL, Malthus, you and I have said repeately in the past it is doubtful that the unethical way works even in the short run for a whole number of reasons but especially in the context of litigation.

[Admiral Yi]

I'm curious if you consider that unethical.

I don't care.

[Barrister]

Beeb--Have you ever prosecuted someone under the auspices of a law you didn't believe morally should exist?

Edit: And would you do so if required?

Edit2: Have you ever asked for a penalty that you didn't believe in because the law said that it was required that you do so--like a minimum sentencing requirement?

You have two different factors.  "something that morally shouldn't exist" is one thing.  No, I've never done that.  And I wouldn't do that.  If the law mandated, I dunno, that a prisoner must be tortured upon conviction, I couldn't be a part of that.

"something that I don't believe in" is different though.  I prosecuted people for firearms offences when I didn't particularly like or agree with the firearms legislation.  But I didn't think the law was "immoral" - I just had a difference of opinion with Parliament.  We don't have the same kind of mandatory minimums that you guys have, and typically if I think the mandatory minimum is too high I'll under-charge to get around it (since if I think it's too high, odds are so will the judge).  But I've asked for 4 months on a 3rd impaired, when I would have had no problem with 2-3 months, but 4 is the minimum.

[crazy canuck]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

Indeed, this is what my sister is going through right now.

She is involved in a medical mal-practice suit where the details of the case are pretty much open and shut. There is no real issue at all of it going to trial (the doctor would lose badly, and my sister is an extremely sympathetic victim).

But the lawyers for the doctor and hospital are doing the standard practice in these cases, which is to delay the process as much as possible. Demand plenty of depositions. Demand more depositions, ,even on points that are pretty much already decided. Ask for delays, use all the procedural tricks possible to draw it out.

All the while, offer very low-ball settlements in the hopes that her financial situation simply cannot wait them out.

And no, this isn't harming anyone's reputation - in fact, when the lawsuit started my sisters lawyers told her this is exactly what the other legal team would do, because this is what they always do, because a lot of time it works.

Is that ethical?

If your characterization is accurate then no, it isnt.  And if what you are saying is true the Court has mechanisms for dealing with such behaviour such as awarding increased damages and special costs.

[Barrister]

The unethical way to do it is to admit nothing, force claimants into expensive lawsuits, try to force pennies on the dollar settlements from desperate people.

And as I keep saying, the unethical way works, but not for long.

Why does this not work for long?

Indeed, this is what my sister is going through right now.

She is involved in a medical mal-practice suit where the details of the case are pretty much open and shut. There is no real issue at all of it going to trial (the doctor would lose badly, and my sister is an extremely sympathetic victim).

But the lawyers for the doctor and hospital are doing the standard practice in these cases, which is to delay the process as much as possible. Demand plenty of depositions. Demand more depositions, ,even on points that are pretty much already decided. Ask for delays, use all the procedural tricks possible to draw it out.

All the while, offer very low-ball settlements in the hopes that her financial situation simply cannot wait them out.

And no, this isn't harming anyone's reputation - in fact, when the lawsuit started my sisters lawyers told her this is exactly what the other legal team would do, because this is what they always do, because a lot of time it works.

Is that ethical?

Thats pretty shitty Berk.

No, that sounds like classic "bad faith" to me, which isn't ethical - and in fact in a Canadian courtroom would get the insurer slapped with a bad faith lawsuit on top of the original lawsuit.  Way back at the dawn of time, when I adopted the name "BarristerBoy", I did insurance defence work.  And our instructions (both to our clients, and them to us) were that if a claim had obvious merit you paid it.  Not to say that an offer to settle just a few weeks after an incident wouldn't be a bit lower, but that's because to do so was in everyone's best interests - the victim gets their money faster, and the insurer is saved the cost of the lawsuit.

[DGuller]

Here's the story Raz is probably thinking of:

[Admiral Yi]

Here's the story Raz is probably thinking of:

[Malthus]

Indeed - the system MUST work like this to work at all.

But that does mean that there are times that lawyers not only CAN do things that are of rather dubious ethics (not to mention just), but that in some cases they MUST do so.

Now, the lawyers have defined "ethics" to mean "doing the things that the system demands that we do (or allows us to do)" when they talk about ethics. But that is not the same as what society in general considers ethical or just. And there are a million examples of attorneys representing their clients engaged in incredibly unethical behavior from the standpoint of anyone outside the world of the client.

Companies arguing that they should not have to pay damages for pollution, or even a lawyer arguing that their client should not have to go to jail for running down some child when their client was drunk off their ass

Hell, that is a an easy counter-factual to Beebs claim:

You are a defense attorney tasked with defending your client from a manslaughter charge for killing a child on a bike while he was allegedly drunk.

Lets craft as onerous a scenario as possible:

This isn't his first DUI charge, or even his 4th. He has had several, including cases in the past where he has seriously injured other, but in those cases he has managed to get off for one reason or another.

The evidence against him is completely overwhelming, except that at some point some trivial procedural error was made, which would invalidate the intoxication test. It is kind of a bullshit invalidation, but you've recognized that you can in fact get the case tossed if you bring it up, all the while being 100% certain that your client was in fact drunk off his ass, and did in fact kill that kids as a result, and what is more, in your judgement it is extremely likely that he will continue to drink and drive in the future.

You can bring this up, and get your client off these charges, and in fact our system demands that you do so - from the narrow definition of legal "ethics" used you are well within your bounds. It is necessary that our system allow guilty men to go free in order to avoid any chance of a innocent man being found guilty.

But we all know this is not a "just" result in the particular, and I could certainly understand a lawyer feeling like an utter piece of shit for doing his job in a case like this - and I would not consider it "ethical", even if it is exactly what the lawyer ought to do.

What "society in general considers ethical or just" in reaction to any occasion is pretty easy to determine: just read the comments section of an online newspaper. Would you be happy being judged in that manner, if you were charged with a crime? Or would you prefer a trial based on the rules of evidence - as crappy and trivial as those rules no doubt are in some cases?

Really, your dilemma boils down to 'the lawyer knows the client is guilty and uses trivial procedural tricks to get him or her off anyway'. Thing is, it isn't the lawyer's job to determine the client's guilt or innocence. That is the job of the judge or jury. Those trivial procedural tricks are almost certainly there for a reason - most likely, to make it more difficult for cops to fabricate evidence against someone.

What lawyers require is faith that the system, overall, produces an approximation of justice so long as each actor plays his or her part. Not perfectly of course, but at least better than (say) being judged by what "society in general considers ethical or just".